JUDGMENT :

S.R. BRAHMBHATT, J.

1. Heard the learned advocate for the parties.

2. The Municipal Corporation constituted under the provisions of Bombay Provincial Municipal Corporation Act, has approached this Court, by way of these petitions, filed under Article 226 and 227 of the Constitution of India, challenging the award and order passed by the Presiding Officer, Labour Court, Bhavnagar in Reference (LCB) No.617/1993 dated 07.09.2000 and order dated 09.12.2002 in Recovery Application No.1961 of 2001 respectively.

3. The facts in brief, as could be gathered from the memo of petitions and accompanying documents need to be set out as under.

3.1 The workman and the employer are hereinafter referred to as the 'workman' and 'employer' for the sake of brevity in the entire judgment. The workman has raised the industrial dispute, as his services were terminated on account of retrenchment order, which was passed on 03.02.1993, which, in fact, was a notice for retrenchment and after the passage of 3 months' time, the retrenchment had taken effect. The dispute which was raised by the workman was referred to the competent Court, which was registered as Reference (LCB) No.617 of 1993. The statement of claim and the written statement were filed. The witnesses were examined and ultimately Labour Court came to the conclusion that the order of retrenchment was wholly unjustified on two counts viz. non compliance with mandatory provision of Section 25F of the I.D.Act, as well as failure on the part of the employer in establishing the principle under Section 25G of 'last come first go' was not observed, as no documentary evidence in support thereto were produced despite repeated applications, requests and orders in the Court. The order of reinstatement with full back wages came to be passed on 07.09.2000, which is impugned in the petition being Special Civil Application No.701/2003. As there was no compliance with the said award, the workman was constrained to file recovery application, which came to be resisted by the employer indicating that a writ petition being Special Civil Application No.701/2003 was filed and the same is pending. The labour Court, passed an order on 09.12.2002, directing payment of Rs. 1,59,315/- to the workman, which came to be challenged by way of Special Civil Application No.6673 of 2003.

4. Learned Advocate for the petitioner invited this Court's attention to the findings recorded by the Court and submitted that the findings recorded by the Court are contrary to the material on record and therefore, the award is required to be quashed and set aside. The award is otherwise not tenable in the eye of law, as the Court did not advert to the established principle of law while granting relief in a case, where, the retrenchment is questioned on part of the workman, when the workman has put in service only for short period. Learned Advocate for the petitioner in support of his submission, relied upon the decision of the Hon'ble Apex Court in case of Senior Superintendent Telegraph (Traffic), Bhopal v. Santosh Kumar Seal and Others, reported in (2010) 6 SCC 773.

5. Learned Advocate for the petitioner invited this Court's attention to the fact that the respondent-workman was appointed initially in set up as on 1996 and on account of inadvertence in the year 1997, i.e. the respondent workman came to be appointed. When the said fact was noticed during the extension of service of the workman by the Commissioner, he immediately issued requisite instructions to the concerned, including the Legal Section for taking immediate steps for dispensing with services of the workman, who was in addition and excess to the declared set up. The correspondence exchanged in this behalf, is sought to be relied upon to abdicate that there was complete attempt to comply with mandatory provisions of Section 25F, though, unfortunately, on account of inadvertence the amount which was admissible to the workman as provided under Section 25F was not paid fully