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2001 DIGILAW 357 (GUJ)

STATE OF GUJARAT v. BHANUBEN BHANJIBHAI DHOKIYA

2001-06-14

RAVI R.TRIPATHI

body2001
RAVI R. TRIPATHI, J. ( 1 ) ). THE present petition is filed by the State of Gujarat, through the Collector, Junagadh, challenging the award passed by the Labour Court in Reference (LCJ) No. 44/1995 dated 1/6/1999, whereby the respondent-employee was ordered to be reinstated on her original post treating her services to be continuous one with all consequential benefits as well as with full back-wages and cost of Rs. 1000. 00 of the proceedings. ( 2 ) ). MR. R. V. Desai, learned AGP appearing for the petitioner, submitted that the award of the learned Judge is vitiated on more than one counts, namely, the office of the Collector wherein the respondent-workman was serving is not an industry. Not only that, as per the written submissions made before the Labour Court, she was given appointment on 30th August, 1991 as Part Time Hamal for one hour on fixed salary of Rs. 180. 00 per month. Thereafter, the said period of work was increased to 4 hours a day and the salary was correspondingly increased to Rs. 400. 00 per month, but, as her services were not found satisfactory, the same were terminated with effect from 1/4/1994 by an oral order. Mr. Desai, learned advocate, submitted that in view of the same, the learned Judge has committed an error in passing the award in question granting reinstatement to the respondent-employee with full back-wages as well as all consequential benefits. ( 3 ) ). MR. Anshin H. Desai, learned advocate appearing for the respondent-employee, submitted that this Court by an order dated 8th May, 2000 was pleased to grant interim relief qua back-wages alone on a condition that the petitioner shall reinstate the respondent-workman in service with effect from 1/6/1999 within 4 weeks from the date of the order and that the respondent-workman shall be paid full wages with effect from 1/6/1999 till the actual date of reinstatement of respondent-employee within six weeks from the date of the order. Mr. A. H. Desai submitted that he has instructions that so far as that order dated 8th May, 2000 is concerned, the present petitioner has complied with so far as reinstatement is concerned. Mr. A. H. Desai submitted that he has instructions that so far as that order dated 8th May, 2000 is concerned, the present petitioner has complied with so far as reinstatement is concerned. He has also pointed out that the present petitioner has filed a Letters Patent Appeal against the said order dated 8/5/2000, but, as there is a delay in filing the Letters Patent Appeal of 166 days, a Civil Application is filed for condonation of delay and the notice of that Civil Application is served upon the present respondent-employee. ( 4 ) ). MR. Anshin H. Desai, learned Advocate, submitted that as the matter is now taken up for final hearing, he is ready to leave the question of back-wages to the Court and the matter be heard so that the respondent-employee is not put to agony of waiting for final disposal of the matter. ( 5 ) ). MR. Anshin H. Desai, learned Advocate appearing for the respondent-employee, submitted that it is an admitted position that the present petitioner did employ another person named Mukesh Vallabhbhai on the same day, that is, on 1/4/1994, the day on which the services of the respondent-employee were terminated by an oral order. Mr. Desai also submitted that in fact, this has made the learned Labour Judge to observe while passing the award and holding that the respondent-employee was discharging the duties of a permanent nature and that on account of permanent nature of the duties, that the petitioner was required to employ another person. Mr. Desai also pointed out that the petitioner has not denied the fact that the respondent-employee has worked from 30th August, 1991 to 1st April, 1994 and that being so, the termination of the employee is not justified when there was work of subsisting nature and the petitioner was required to employ another person. Mr. Desai also pointed out that the learned Labour Judge has taken into consideration the fact that the provisions of section 2 (oo) (bb) are also not applicable to the facts of the present case and that the termination of the services of the respondent-employee are in clear violation of the provisions of section 25 (F ). He submitted that the present petitioner did not give either one months notice or one months pay in lieu of notice before terminating the services of the present respondent-employee. Mr. He submitted that the present petitioner did not give either one months notice or one months pay in lieu of notice before terminating the services of the present respondent-employee. Mr. Desai pointed out that the said fact is also admitted by the present petitioner in the deposition of the witness, who was examined on behalf of the department. ( 6 ) ). TAKING into consideration the totality of the circumstances that as per the case of the employee, the employee was working with the Department since 1988; that since 1991, she was given increased work-load; and that she continued to work right upto 1994, and taking into consideration the important aspect that for the same work, the petitioner department was required to engage another person, the award of the Labour Court is required to be modified only with regard to the grant of 100% back-wages to the respondent-employee. The award of the Labour Court is, therefore, modified to the effect that instead of 100% back-wages, the respondent-employee shall be paid 20% back-wages with all consequential benefits. However, it is made clear that as ordered by this Court by an order dated 8th May, 2000, the respondent-employee shall be paid full back-wages with effect from 1/6/1999. ( 7 ) ). RULE is made absolute to the aforesaid extent only. .