Violation of provisions under Sections 25F and 25H of the ID Act led to the direction for reinstatement without backwages.

JUDGMENT :

1. This petition is filed under Articles 226 and 227 of the Constitution of India, in which, the petitioner has challenged the award dated 08.05.2015 passed the Presiding Officer, Labour Court, Godhra in Reference (LCG) No.85/2012, by which, the Labour Court directed the petitioner herein to reinstate the respondent – workman without any backwages.

2. Heard learned Assistant Government Pleader, Mr. Rohan Shah for the petitioner and learned advocate, Mr. Mitul Shelat assisted by learned advocate, Ms.Disha Nanavaty for the respondent no.1.

3. Learned AGP Mr. Shah submitted that the respondent – workman was appointed purely on temporary basis as a driver on 01.04.2002. Thereafter, his services were terminated on 01.03.2008, therefore, the respondent raised industrial dispute, which was referred to Labour Court in the year 2008, which was registered as Reference (LCG) No.104/2008 and the Labour Court passed an ex- parte award on 30.04.2011, by which, the present petitioner was directed to reinstate the respondent – workman with 50% backwages. It is submitted that as the said award was ex-parte, the petitioner submitted an application under Rule 26(A) of the Industrial Disputes (Gujarat) Rules for setting aside the ex-parte award and the Labour Court allowed thee said application and thereby Reference was restored to its original file. Thereafter before the Labour Court, the petitioner produced relevant evidence and the witnesses of the petitioner were examined. The respondent – workman also produced documentary evidence and gave deposition and after considering the oral as well as documentary evidence produced by the parties, the Labour Court passed impugned award dated 08.05.2015, whereby the aforesaid direction has been issued by the Labour Court that the petitioner shall reinstate the respondent – workman without any backwages.

4. Learned AGP has assailed the said award by mainly contending that the petitioner is not an ‘Industry’ within the meaning of Section 2(j) of the Industrial Disputes Act, 1947 (hereinafter referred to as “the ID Act” for short) and the respondent is not a ‘workman’ within the meaning of Section 2(s) of the ID Act and, therefore, the Labour Court ought to have rejected the Reference of the respondent.

5. Learned AGP, thereafter, contended that before terminating the services of the respondent, the petitioner has followed the prescribed procedure under Sections 25F, 25G and 25H of the ID Act. Learned AGP submitted that though the respondent – workman has not completed 240 days in a particular year, the Labour Court has recorded wrong finding that the petitioner has violated the provision contained in Section 25F of the ID Act.

6. At this stage, learned AGP, under the instructions from the I/c. DILR, Godhra, who is personally present before this Court, submitted that at present, another driver is working with the petitioner and, therefore, there is no vacant post. Hence, the respondent – workman cannot be reinstated as per the award passed by the Labour Court. It is also pointed out that while admitting the present petition, this Court has granted stay against the award passed by the Labour Court. Learned AGP, therefore, urged that the impugned award be quashed and set aside.

7. On the other hand, learned advocate, Mr. Shelat appearing for the respondent – workman has opposed this petition and referred to the reasoning recorded by the Labour Court while passing impugned order. It is submitted that the respondent – workman has completed 240 days in a particular year. It is further submitted that the finding is also recorded by the Labour Court that the present petitioner has violated mandatory provision contained in Section 25F of the ID Act and now it is not in dispute that in place of the respondent – workman, another driver is employed and he is working at present. It is submitted that thus the Labour Court has also recorded finding that the petitioner has violated the provision contained in Section