2020 Supreme(Guj) 440

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SONIA GOKANI, J.
Indian Rayon Industries Ltd. – Petitioner
Versus
Rizvan Abdul Samadmalik & Others – Respondents
R/Special Civil Application No. 21452 of 2017, 1964 of 2018
Decided On : 25-02-2020

Point of Law:
Section 25-F of the Industrial Disputes Act,1947 requires the employer to follow the procedure thereunder when a workman is employed in an industry and who has been in continuous service for not less than one year. "Continuous service" is defined under Section 25-B of the Act. Section 25-B(1) suggests that the workman shall be said to be in continuous service for a period if he is for that period in uninterrupted service including service which may be interrupted on account of sickness, authorized leave etc. Section 25-B(2) suggests that, when he is not in continuous service for a year then a deeming fiction of 240 days is considered. Mr. Desai, contends that the learned Judge could not have considered the Certificate showing the number of working days as 319, as "that period was not a period preceding 12 months prior to retrenchment.

Headnote:

Industrial Disputes Act, 1947 - Section 2(oo) - Petitioner is employer of Indian Rayon Industries Limited and respondent has preferred a cross petition being Special Civil Application - Both are aggrieved by judgment and award passed by Labor Court in Reference in following factual background raised dispute which was referred to Labor Court where he submitted the statement of claim written statement had been filed by company stating that his appointment was purely on temporary basis and dispute is not covered - Petitioner that much delay has been caused which ought not to have been permitted by Court case of another set of employees similarly situated very Labor court has held in favor of employer and when challenged before LPA Bench in Letters Patent Appeal Court also noted unexplained and inordinate delay of years in raising dispute and employee having accepted PF amount in year held that appellants cannot term their discontinuation in service from as illegal termination - Held, request of back wages and even if host of factors as required law are considered for purpose of grant of back wages and continuity of service delay of two years will need to be regarded period of delay for which had not approached this Court is well explained - Court having clearly and rightfully held that was in breach of provisions of ID Act has directed reinstatement of service - So far as present respondent is concerned request on part of employer that his service was only for period of seven years as a daily wager and therefore instead of reinstatement lump-sum compensation should be awarded as per decision of Apex Court is not finding favor with this Court - Respondent has been in employment from year till nearly six years of service - There has been no recession of work in industry is not employee's fault that continued to be labeled as daily wager and his services came to be terminated without following due procedure - However there has been a requirement of reduction of total strength pretexts of grant of bonus when was never taken back in service and if litigation has continued all these years where also during pendency of this petition has not been given any benefit - Petitions dismissed (Paras 14 and 15)

Facts of the Case:

Petitioner company is engaged in the business of manufacturing of viscose filament yarn since 1962. The company changed his name as Aditya Birla Nuvo Limited by following the procedure on 27.10.2005. The respondent was appointed during 1995 to 2001 as a temporary employee as per the requirement in the expansion project. His employment came to an end in November-2001.

After two years, he raised the dispute which was referred to the Labour Court, where he submitted the statement of claim. The written statement had been filed by the company stating therein that his appointment was purely on temporary basis and the dispute is not covered under the definition of Section 2(oo) of the Industrial Disputes Act, 1947.

Finding of the Court:

Request of back wages and even if host of factors as required law are considered for purpose of grant of back wages and continuity of service delay of two years will need to be regarded period of delay for which had not approached this Court is well explained - Court having clearly and rightfully held that was in breach of provisions of ID Act has directed reinstatement of service - So far as present respondent is concerned request on part of employer that his service was only for period of seven years as a daily wager and therefore instead of reinstatement lump-sum compensation should be awarded as per decision of Apex Court is not finding favor with this Court - Respondent has been in employment from year till nearly six years of service - There has been no recession of work in industry is not employee's fault that continued to be labeled as daily wager and his services came to be terminated without following due procedure - However there has been a requirement of reduction of total strength pretexts of grant of bonus when was never taken back in service and if litigation has continued all these years where also during pendency of this petition has not been given any benefit.

Result: Petitions dismissed