Point of Law: In a case where Section 25-F of the Act applies the workman is bound to prove that he had been in continuous service of 240 days during twelve months preceding the order of termination; in a case where he invokes the provisions of Sections 25-G and 25-H

JUDGMENT :

1. The original respondent has preferred present petition under Articles 14, 16 and 226 of the Constitution of India with a prayer to issue writ, order of direction in the nature of certiorari and/or any other appropriate writ, order or direction in the nature of certiorari to quash and set aside judgment and award dated 13.9.2011 passed by the court of learned Presiding Officer, Labour Court (S.D.), Anand in Reference (LCA) No.70 of 1997.

2. Heard Mr. Soham Joshi, learned advocate for the petitioner and Mr. Yogen Pandya, learned advocate for the respondent-workman through video conferencing.

3. The brief facts of the case are that the workman has filed Reference (LCA) No.70 of 1997, wherein he has stated that he was working with the petitioner department since 1.9.1980 as daily wager and Rs.450/- was being paid to him as monthly salary. It was contended by the workman that inspite of his continuous and satisfactory service, he was orally terminated with effect from 1.9.1989 without any notice, notice pay or retrenchment compensation in lieu of notice. The workman has issued demand notice dated 24.4.1996 for reinstatement. It is further the case of the workman that when his service was terminated, the department has kept juniors to him in service and, thus, there is breach of Sections 25-F, 25-G and 25-H of the Industrial Disputes Act. On all these grounds, he has prayed for reinstatement in original post with full backwages.

3.1 The petitioner herein has filed written statement before the Labour Court and denied all the averments of the workman. It is also contended that the workman has never completed 240 days in any calendar year and the application of the respondent is barred by limitation. It was further stated that the pay slip as well as presence card was issued to the workman as per the rules and regulations of the petitioner. It was also contended that the workman stopped to come on service with effect from 29.2.1992 at his own volition. On all these grounds, it was prayed to dismiss the reference.

3.2 On the basis of the evidence produced by both the sides and the submissions of both sides, the Labour Court has ultimately granted relief of reinstatement along with continuity of service with 25% backwages and all consequential benefits with effect from 6.8.1996. The Labour Court has specifically held that there was breach of Sections 25-F, 25-G and 25-H of the Industrial Disputes Act and the workman has worked for more than 298 days during the period from 1.7.1988 till 31.8.1989. Being aggrieved by the said award, present petition is filed.

4. Mr. Soham Joshi, learned AGP appearing for the petitioner has vehemently submitted that there is no iota of evidence on record to suggest that the workman has completed 240 days in any calendar year. According to him, it was for the workman to prove that he has worked for 240 days in a calendar year. He has also submitted that there is no evidence regarding breach of Sections 25-F, 25-G and 25-H of the Act. He has further contended that the petitioner herein is not an “industry” and, therefore, there is no relationship of employer-employee between the parties as per the provisions of the Industrial Disputes Act. According to him, learned Labour Court has not considered all these aspects and has erroneously passed the impugned award. He has also submitted that even if it is believed that there is breach of Section 25-F, then in view of judgment of Bharat Sanchar Nigam Limited v. Man Singh and Others reported in (2012) 1 SCC 558, the order of reinstatement could not have been passed and instead thereof some sort of compensation ought to have been granted. He submitted that learned Labour Court has misread the evidence on record and committed serious error of facts and law in passing the impugned award. According to him, the impugned award is not sustainable in the eyes of law and, therefore, the same may be set aside by allowing present petition.

5. Per contra, Mr. Yogen Pandy