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SCA/4837/2011 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4837 of
2011
=========================================================
BHIKHUBHAI
RAMANBHAI RATHOD - Petitioner(s)
Versus
BORON
CARBIDE (I) PVT LTD - Respondent(s)
=========================================================
Appearance
:
MR
KM PATEL, SR. ADVOCATE, MR PC CHAUDHARI
for
Petitioner(s) : 1,
NOTICE SERVED for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
Date
: 07/07/2011
ORAL
ORDER
1. Heard,
learned Sr. Advocate, Mr. K.M. Patel, with learned Advocate, Mr. P.C.
Chaudhary, for the petitioner.
2. Learned
Sr. Advocate for the petitioner invited attention of this Court to a
decision of this Court in the matter of “GURJARGRUVERS(P)LTD.
VS. AKBARKAHN HAVALDARKHAN”, 2004-IV-LLJ 722. Learned
Sr. Advocate invited attention of this Court to Paragraph No.4,
wherein Rule 81 of the Industrial Disputes(Gujarat) Rules, 1966,
which is reproduced. The leaned Sr. Advocate for the petitioner,
then, invited attention of this Court to the observations of the
Court:
“Thus, bare
perusal of Section 25-G of the I.D. Act, 1947 itself suggests that it
is the duty of the employer to comply with Section 25-G when they are
retrenching any employee. There is no need on the part of the
workman concerned to raise such contention but it is the legal
obligation on the part of the employer to satisfy it before the Court
where the termination has been challenged by the workman. Therefore,
the Labour Court was right in coming to the conclusion that there was
breach of Section 25-G of the I.D. Act and the petitioner has not
justified and satisfied the Labour Court about compliance of Section
25-G of the I.D. Act, 1947. this Court is of the clear opinion that
once the action of termination is challenged by the workman before
the Labour Court or the Industrial Tribunal, then, it is the duty of
the employer to establish that the order of termination is legal and
valid on all counts. Like Section 25-G of the I.D. Act, 1947, Rule
81 of the I.D.(Gujarat) Rules is also mandatory and is requried to be
appreciated. Same is, therefore, reproduced as under:
“Maintenance of
seniority list of workmen. (1) the employer shall prepared a list
of all workmen in the particular category from which retrenchment is
contemplated arranged according to the seniority of their service in
that category and cause a copy thereof to be posted on a Notice Board
in conspicuous place in the premises of the industrial establishment
at least seven days before the actual date of retrenchment.”
Thus, bare perusal of
Rule 81 of the said Rules makes it clear that in case when the
occasion for retrenchment arise, it is the duty of the employer to
public the seniority list of the employee working in category where
the retrenchment is necessary. This rule has also been held to be
mandatory and non compliance thereof renders termination bad.
Therefore, according to my opinion, if the employer as to prove legal
termination or retrenchment, then, he is required to satisfy Section
25-F of the I.D. Act and then, to satisfy the Court about the
compliance of Section 25-G and Rule 81 of the I.D. Act, 1947. If
either of the Section and rule is not complied with by the employer
according to my opinion, order of termination would become bad in law
and void ab initio. All
these sections including Rule 81 are mandatory statutory provisions
in light of the facts and the observations made by the Labour Court,
according to my opinion, the Labor Court was right in coming to the
conclusion that there was breach of Section 25-G and Rule 81 of the
said Rules and such findings are legal and valid and Labour Court has
not committed any error in recording such findings.”
3. Learned
Sr. Advocate, then, invited attention of this Court to Paragraph-12
of award and order dated 22.04.2010, passed by the learned Judge of
the Labour Court(S.D.), Navsari in Reference (L.C.N.) No. 99 of 2002,
wherein the learned Judge, after recording that various decisions
were cited before him and after reading them, he decided to rely upon
a decision of the Bombay High Court in the matter between “CHEMICAL
MAJUR SABHA VS. VITAL ORGANICS PRIVATE LIMITED”,
reported in 1995(2) C.L.R. 465.
On
the face of it, relying upon a decision of the Bombay High Court of
the year 1995, when there is a binding decision of this Court of
2004, a clear error of law is committed. The matter requires
consideration.
4. RULE.
5. NOTICE
as to interim relief, returnable on 27TH
JULY, 2011.
(RAVI
R.TRIPATHI,J.)
Umesh/
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