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SCA/5262/2010 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5262 of 2010
=========================================================
BHARUCH
DISTRICT PANCHAYAT & 1 - Petitioner(s)
Versus
MANSING
SHIVABHAI PARMAR - Respondent(s)
=========================================================
Appearance
:
MR
HS MUNSHAW for
Petitioner(s) : 1 - 2.
None for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 12/05/2010
ORAL
ORDER
Heard
learned advocate Mr. H.S. Munshaw appearing on behalf of petitioners.
The
petitioner Panchayat has challenged award passed by Labour Court,
Bharuch in Reference No.239 of 2004 Ex.24 dated 23rd
November 2009. The Labour Court has come to conclusion that order of
termination is bad as violated the provisions of Section 25F of the
Industrial Disputes Act, 1947. But, instead of reinstatement and back
wages, only Rs.25,000/- has been awarded by Labour Court being a
lump-sum amount of compensation in favour of workman.
Learned
advocate Mr. Munshaw submitted that respondent was appointed as daily
wager driver to drive the second vehicle of Taluka Panchayat w.e.f.
August 1988. The jeep car driven by respondent was not in running
condition and inoperative, hence, the respondent was not provided
work w.e.f. May, 1999. The respondent has raised industrial dispute
against termination after period of five years being Reference No.239
of 2004, wherein, detailed reply was filed by petitioner pointing out
that appointment was made as daily wager and now, the vehicle was not
in running condition and petitioner was not able to provide work to
respondent, even though, this aspect has been ignored by Labour Court
and awarded compensation of Rs.25,000/- in its award which is under
challenge.
I
have considered submissions made by learned advocate Mr. Munshaw and
I have also considered statement of claim filed by workman on 20th
October 2004. I have also considered reply/explanation dated 14th
July 2004 given by workman for raising dispute after period of five
years. I have also perused award passed by Labour Court, Bharuch. The
statement of claim was filed by workman at Ex.4 and he was in service
from August, 1988 to May, 1999 i.e. more than ten years and completed
240 days service in each years, which fact has been denied by
petitioner while filing reply at Ex.6. On behalf of petitioner, one
Naginbhai Velabhai Patel was examined at Ex.19 and workman was
examined at Ex.11. Both have been cross-examined by respective
parties. Thereafter, their evidence has been closed and after
considering submissions made by both learned advocates before Labour
Court, issues have been framed by Labour Court whether the reference
of petitioner is barred by limitation ? The Labour Court has come to
conclusion that there is no provision made in Sec.10 which requires
to raise industrial dispute within some period of limitation.
Therefore, that contention raised by petitioner has been rejected.
Thereafter,
Labour Court has considered and appreciated oral evidence of workman
as well as evidence of witness of petitioner. The details of presence
produced by petitioner before Labour Court by letter dated 1st
June 2004. That letter has been considered by Labour Court, Bharuch
for deciding the fact whether workman has completed continue service
of 240 days in a calender year or not ? According to aforesaid letter
dated 1st June 2004, in the year of 1990, workman has
completed continuous service of 271 days, in the year of 1991,
workman has completed continuous service of 230 days, in the year of
1992, workman has completed continuous service of 276 days, in the
year of 1993, workman has completed continuous service of 264 days,
in the year of 1994, workman has completed continuous service of 277
days, in the year of 1995, workman has completed continuous service
of 287 days and in the year of 1996, workman has completed continuous
service of 213 days. For rest of period, no details have been
supplied by petitioner before Labour Court. Therefore, considering
aforesaid letter dated 1st June 2004 of petitioner, the
termination of workman is covered by Sec.2(oo) of the Industrial
Disputes Act, 1947 as retrenchment and considering date of
termination 9th July 1999 which amounts to retrenchment
and Sec.25F admittedly not followed or complied by petitioner,
therefore, Labour Court has in terms come to conclusion that
termination of workman violating mandatory provisions of Section 25F
is required to be set aside and workman is entitled reinstatement in
service.
The
Labour Court has considered one decision of Apex Court in case of UP
State Electricity Board v. Laxmikant Gupta reported in 2009 LLR Page
1, where, following observation has been made by Apex Court which is
quoted as under :
Thus,
it is evident that there has been a shift in the legal position which
has been modified by this Court and now there is no hard and fast
principle now that on the termination of service being found to be
illegal, the normal rule is re-instatement with back-wages.
Compensation can be awarded instead, at the discretion of the Labour
Court, depending on the facts and circumstances of the case.
Therefore,
aforesaid observation made by Apex Court has been considered as well
as delay aspect has also taken into account and keeping in mind that
respondent was a daily wager driver and vehicle was not in running
condition and there was no work available with petitioner, therefore,
a lump-sum amount of Rs.25,000/- has been awarded to respondent
workman.
I
have considered the contentions raised by learned advocate Mr.
Munshaw and I have also considered reasoning given by Labour Court.
According to my opinion, termination of workman is illegal, because,
Section 25F has been violated by petitioner, therefore, workman is
entitled the relief of reinstatement, but, that relief has not been
granted considering relevant factors as decided by Apex Court in
aforesaid decision of UP State Electricity Board (supra) and also
considering delay aspect in raising dispute after a period of five
years, daily wager not appointed by due process of selection and no
work is available with petitioner and vehicle was not in running
condition, therefore, according to my opinion, Labour Court has
rightly examined matter on the basis of evidence. For that, Labour
Court has not committed any error which requires interference by this
Court under Article 227 of the Constitution of India.
Hence,
there is no substance in present petition, accordingly, present
petition is dismissed.
[H.K.
RATHOD, J.]
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