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SCA/15013/2004 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 15013 of 2004
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
R.K.TECHNICAL
INSTITUTE (ITI) - Petitioner(s)
Versus
PATEL
ARVINDBHAI CHUNILAL - Respondent(s)
=========================================================
Appearance :
MR
DG CHAUHAN for
Petitioner(s) : 1,
MR BHARAT SHAH for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 25 /10/2010
CAV
JUDGMENT
1. By
way of this petition under Article 227 of the Constitution of India,
the petitioner-R.K. Technical Institute (ITI) has prayed for an
appropriate writ,direction and order quashing and setting aside the
impugned judgment and award dated 20.12.2001 passed by the Labour
Court, Anand in Reference (LCA) No.132 of 1992 by which the Labour
Court has allowed the said Reference directing the petitioner to
reinstate the respondent with 50% back wages and continuity of
service.
2. It
appears that respondent was initially appointed as daily wager peon
and his services were terminated on 30.11.1983 as daily wager. It
appears that thereafter again respondent was appointed as Peon on
1.12.1983 on a probation of one year and he was appointed on
probation w.e.f. 2.12.1983. That thereafter, he worked upto 16.8.1984
i.e. hardly for 8 months and according to the petitioner management
he himself abandoned the job and / or did not resume the duty as he
was facing criminal proceedings / proceedings for the allegation of
taking bribe of money from one student i.e. Kaushik Punjabhai. That
thereafter, after a period of one year, he raised an industrial
dispute challenging the alleged the termination and same was referred
to Labour Court, Anand, which was numbered as Reference (LCA) No.200
of 1986 and the Labour Court by impugned judgment and award partly
allowed the said reference directing the petitioner to reinstate the
respondent with 50% back wages by holding that though respondent has
completed work of 240 days in the last preceding year and his
services have been terminated without holding any departmental
inquiry and/ or without any notice and/ or notice pay and/ or
retrenchment compensation. Being aggrieved and dissatisfied with the
impugned judgment and award passed by the Labour Court, the
petitioner-management has preferred the present Special Civil
Application under Article 227 of the Constitution of India.
3. Shri
Chauhan, learned advocate for the petitioner has submitted that the
Labour Court has materially erred in partly allowing the reference
and directing the petitioner to reinstate the respondent with 50%
back wages. It is submitted that as such the respondent has not
worked for more than 240 days in the last preceding year and finding
given by the Labour Court that respondent has worked for more than
240 days in the last preceding year, is considering his past service
from 23.10.1982, which could not have been considered as in fact the
respondent tendered his resignation on 30.11.1983 and he was again
appointed on 1.12.1983 w.e.f. 2.12.1983 on a probation of one year
which the respondent accepted the same without any objection.
Therefore, it is submitted that as such the appointment of the
respondent w.e.f. 2.12.1983 was a fresh appointment. Therefore, his
earlier service was not required to be considered while calculating
240 days.
4. It
is further submitted that even otherwise as such there was no
termination and / or retrenchment by the petitioner at all. It is
submitted that in fact as the respondent was facing some proceedings
with respect to taking bribe/money from the student, he was under
pressure and he left the village Sunav and he went to stay with his
in law’s where he stayed upto 1990, even as admitted by him in the
cross examination. Therefore, when the respondent himself left the
village and service, there was no question of any termination and/ or
retrenchment by the petitioner and therefore, the Labour Court has
materially erred in directing the petitioner to reinstate the
petitioner by holding that the termination is illegal. Therefore, it
is requested to allow the present Special Civil Application.
5. Petition
is opposed by Shri Bharat Shah, learned advocate for the respondent.
It is submitted that it is not true that there was a delay in raising
industrial dispute. It is submitted that the dispute was raised by
notice dated 14.5.2002. It is further submitted that even present
petition may not be entertained as the award came to be published in
the year 2001 and the petition has been filed on 14.9.2004. It is
further submitted by Shri Shah, learned advocate for the respondent
that as respondent completed/ worked for 240 days in the last
preceding year before terminating the services of the respondent,
petitioner ought to have served the notice, notice pay and / or
retrenchment compensation to the respondent as required under Section
25 F of the Industrial Disputes Act, 1947. Therefore, it is submitted
that there is a finding given by the Labour Court that the respondent
had worked for more than 240 days in the last preceding year and
consequently when the Labour Court has passed an order directing the
petitioner to reinstate him in service that too denying 50% back
wages, the same is not required to be interfered with by this Court
in exercise the powers under Article 227 of the Constitution of
India.
6. Shri
Shah, learned advocate for the respondent has further submitted that
as such the respondent was compelled to leave the village Sunav. It
is further submitted that for the alleged allegation/ misconduct of
demanding bribe/ money from the student i.e. Kaushik Punjabhai, no
departmental inquiry has been held and therefore, same cannot be
considered. It is further submitted by Shri Shah, learned advocate
for the respondent that in the facts and circumstances of the case,
denial of 50% back wages can be said to be sufficient punishment.
Therefore, it is requested to dismiss the present petition.
7. Having
heard the learned advocates for the respective parties and
considering the impugned judgment and award as well as deposition of
the respondent it appears that respondent himself, for whatever
reasons left the village Sunav and institution and he went to reside
/ stay at his in laws
village Khabhoraj from August
1984 even till his deposition was recorded on 4.10.1990. Therefore,
it appears that the respondent left the village as well as
institution and the job and stayed at his in laws on and from August
1984. It appears that as some chapter case was filed in the year 1984
he might have left the village and might have stayed at his in laws
on and from August 1984. The allegation against the respondent was
that he was demanding bribe/ money from the student. It is to be
noted that during that period he was on probation. Considering the
aforesaid facts and circumstance of the case and when the respondent
himself left the village on and from August 1984 and even at the time
of recording of evidence on 4.10.1990, he was at his in laws house,
there was no termination and / or retrenchment by the petitioner for
which any procedure was required to be followed required under the
provisions of Industrial Disputes Act. In the facts and circumstance
of the case, the Labour Court has materially erred in holding that
there was a termination / retrenchment of the petitioner.
8. The
finding given by the Labour Court that the respondent had worked for
more than 240 days in the preceding year also cannot be sustained. It
appears that to arrive at aforesaid finding the
Labour Court has considered his past service from 23.10.1982. It is
to be noted that services of the respondent was terminated on
30.11.1983 and thereafter again he was re-appointed on 1.12.1983 on a
probation of one year w.e.f. 2.12.1983 and respondent accepted the
same without any objection and therefore while calculating /
considering the 240 days, his past service could not have been
considered by the Labour Court as it was a fresh appointment on and
from 2.12.1983 as probationer for a period of one year. Considering
the aforesaid facts and circumstance of the case, Labour Court has
materially erred in directing the petitioner to reinstate the
respondent with 50% back wages, which deserves to be quashed and set
aside.
9. In
view of the above and for the reasons stated above, petition succeed.
The impugned judgment and award dated 20.12.2001 passed by the Labour
Court, Anand in Reference (LCA) No.132 of 1992 is hereby quashed and
set aside. Rule is made absolute to the aforesaid extent. No costs.
(M.R.SHAH,
J.)
kaushik
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