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SCA/10020/2002 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 10020 of 2002
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 ?
=========================================
JUNAGADH
AGRICULTURAL UNIVERSITY - Petitioner(s)
Versus
GULMOHAMAD
ISMAIL NOTIYAR - Respondent(s)
=========================================
Appearance
:
MR DG
CHAUHAN for
Petitioner(s) : 1,
MR KD VASAVADA for Respondent(s) :
1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 13/10/2010
ORAL
JUDGMENT
1. By
way of this petition under Article 227 of the Constitution of India,
petitioner has prayed for an appropriate writ, direction or order
quashing and setting the impugned judgment and award dated 19.06.2002
passed by the Labour Court, Junagadh in Reference (LCJ) No.266/1993,
by which the Labour Court partly allowed the said reference directing
the petitioner to reinstate the respondent with 30% back wages and
with continuity of service.
2. Respondent
was serving as a daily wager as cow herd (Goval) with the petitioner.
It is the case on behalf of the petitioner that he was very
irregular in service and he was in habit of remaining unauthorizedly
absent without leave. That the respondent raised industrial dispute
challenging its alleged termination/retrenchment by submitting that
his services have been terminated on and from 07.03.1993 without
following any procedure and without issuing notice, notice pay and/or
retrenchment compensation. The said dispute was referred to the
Labour Court, Junagadh, which was numbered as Reference (LCJ)
No.266/1993. It was the specific case on behalf of the petitioner
that there was no termination and/or retrenchment by the petitioner
and that the respondent himself stopped coming to the work on and
from 08.04.1993. It was also specifically contended that his
services came to be terminated and/or he came to be retrenched on and
from 07.03.1993. It was submitted that thereafter he worked for six
days in the month of April 1993. It was also submitted on behalf of
the petitioner that despite various notices to resume duty, the
respondent did not resume the duty and therefore, as there was no
termination and/or retrenchment by the petitioner, there was no
question of following any procedure required under Section 25F of the
Industrial Disputes Act, 1947. That the Labour Court by impugned
judgment and award partly allowed the said reference by directing the
petitioner to reinstate the respondent with 30% back wages by holding
that the notices were issued by the petitioner calling upon the
respondent to resume his duty, were not served upon the respondent
and if the respondent was remaining absent unauthorizedly and/or he
abandoned the work, departmental inquiry ought to have been initiated
against him. Therefore, the Labour Court held that there was a
breach of Section 25F of the Industrial Disputes Act, 1947 and
therefore, directed the petitioner to reinstate the respondent with
30% back wages and continuity of service. Being aggrieved and
dissatisfied with the judgment and award dated 19.06.2002 passed by
the Labour Court, Junagadh in Reference (LCJ) No.266/1993, petitioner
has preferred the present petition under Article 227 of the
Constitution of India.
3. Shri
D.G. Chauhan, learned advocate appearing on behalf of the petitioner
has submitted that as such there was no termination and/or
retrenchment of the respondent by the petitioner on and from
07.03.1993 as alleged by the respondent. It is submitted that even
thereafter the respondent worked for six days in the month of April
1993 and therefore, the contention on behalf of the respondent that
he was retrenched and/or his services were terminated from
07.03.1993, cannot be accepted. It is further submitted that even
the finding given by the Labour Court that the notices produced at
Exhs.35 to 40 were not served upon the respondent is factually
incorrect. It is submitted that in fact the acknowledgment receipts
establishing that the aforesaid notices were served upon the
respondent were already on record and still the Labour Court has
given the aforesaid finding which is contrary to the evidence on
record. Therefore, it is submitted that when despite several notices
the respondent did not resumed the duty and he abandoned the work,
there was no retrenchment and/or termination by the petitioner and
therefore, there was no question of following procedure as required
under Section 25F of the Industrial Disputes Act, 1947 and therefore,
it is requested to allow the petition.
4. When
Shri Vasavda, learned advocate appearing on behalf of the respondent
was shown the certified copies of the acknowledgment receipts of the
notices at Exhs.35 to 40 served upon the concerned respondent, he is
not in a position to dispute the same, therefore, the finding given
by the Labour Court that the notices calling upon the respondent to
resume the duty were not served upon the respondent, cannot be
sustained and the same is contrary to evidence on record.
5. Once
having found that despite various notices served upon the respondent
calling upon him to resume the duty and when he did not resume the
duty, there was no termination/retrenchment by the petitioner for
which the provisions of Section 25F of the Industrial Disputes Act,
1947, is required to be followed. It was the respondent who
abandoned the work and there was no retrenchment and/or termination
by the petitioner at all. It is required to be noted that according
to the respondent, his services came to be terminated and/or he was
retrenched on and from 07.03.1993, however, from the register
produced on record, it has come on record that even thereafter he
worked for six days in April 1993. Therefore, the contention on
behalf of the respondent that his services were terminated and/or
retrenched on and from 07.03.1993, is factually incorrect.
6. Considering
the aforesaid facts and circumstances, when there was no retrenchment
and/or termination of the petitioner and despite various notices, the
respondent did not resume the duty, the Labour Court has materially
erred in allowing the said reference directing the petitioner to
reinstate the respondent with 30% back wages and continuity of
service and there was no question of following any procedure required
under Section 25F of the Industrial Disputes Act, 1947.
7. In
view of the above and for the reasons stated above, petition
succeeds. Impugned judgment and award dated 19.06.2002 passed by
the Labour Court, Junagadh in Reference (LCJ) No.266/1993, is hereby
quashed and set aside. Rule is made absolute to the aforesaid
extent.
(M.R.
Shah, J.)
*menon
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