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2014 DIGILAW 1170 (GUJ)

Principal v. Dhadvi Pratapbhai Harjibhai

2014-12-19

M.R.SHAH

body2014
ORDER : M.R. Shah, J. By way of this petition under Article 227 of the Constitution of India the petitioner has prayed for an appropriate writ, order or direction to quash and set aside the impugned judgment and award passed by the learned Presiding Officer, Labour Court, Surendranagar dated 20/02/1994 in Reference (LCA) No. 242/1994 by which the learned Reference Court has partly allowed the said Reference and has directed the petitioner to reinstate the respondent on his original post as a peon with 60% backwages and continuity of service. The respondent raised an industrial dispute challenging his alleged termination by the petitioner on and from 03/07/1994, which was referred to the Labour Court, Surendranagar, which was numbered as Reference (LCA) No. 242/1994. The respondent-workman-peon submitted the statement of claim before the Presiding Officer, Labour Court, Surendranagar dated 20/02/1994 in Reference (LCA) No. 242/1994 learned Labour Court, Surendranagar submitting that he worked as a peon with the petitioner for seven months and was getting Rs. 1150/- per month and he has been dismissed from service orally on and from 03/07/1994. The Reference was opposed by the petitioner by submitting that the Reference itself is not maintainable and the learned Labour Court has no jurisdiction considering the dispute between the petitioner and the respondent as the petitioner-school cannot be said to be an “industry” within the definition of “industry” under the Industrial Disputes Act. On appreciation of evidence, the learned Labour Court has partly allowed the aforesaid Reference and directed the petitioner to reinstate the respondent with 60% backwages by observing that the termination/alleged oral termination is illegal and, therefore, the respondent-workman is entitled to Presiding Officer, Labour Court, Surendranagar dated 20/02/1994 in Reference (LCA) No. 242/1994 reinstatement with continuity of service. 2. Feeling aggrieved and dissatisfied with the impugned judgment and award, the petitioner has preferred the present Special Civil Application under Article 227 of the Constitution of India. 3. Shri Kishor Paul, learned advocate appearing on behalf of the petitioner has vehemently submitted that the learned Labour Court has materially erred in holding that the petitioner is an “industry” within the meaning of the Industrial Disputes Act. It is submitted that therefore the learned Labour Court has materially erred in entertaining the dispute between the petitioner and the respondent. Shri Kishor Paul, learned advocate appearing on behalf of the petitioner has vehemently submitted that the learned Labour Court has materially erred in holding that the petitioner is an “industry” within the meaning of the Industrial Disputes Act. It is submitted that therefore the learned Labour Court has materially erred in entertaining the dispute between the petitioner and the respondent. 3.1 It is further submitted that even otherwise the impugned judgment and award passed by the learned Labour Court cannot be sustained as, as such, there is no specific findings recorded by the learned Labour Court that there is breach of any of the provisions of the Industrial Disputes Act, more particularly, Section 25G and/or H of the Industrial Disputes Act and even according to the respondent and so pleaded in the statement of claim he worked only for seven months. It is submitted that therefore the respondent did not even worked for not less than 240 days in the last preceding year. It is submitted that therefore there is no breach of Section 25F of the Industrial Disputes Act. It is submitted that even there was no specific name given by the respondent that any new person was appointed after the alleged termination of the respondent. It is submitted that as such the respondent himself stopped coming to work. It is submitted that in any case in absence of any breach of any of the provisions of the Industrial Disputes Act, more particularly, Section 25H, the impugned judgment and award passed by the learned Labour Court cannot be sustained and the same deserves to be quashed and set aside and, therefore, it is requested to allow the present Special Civil Application. 4. Ms. Pandit, learned advocate has tried to oppose the present petition. It is submitted that there is no specific finding recorded by the learned Labour Court that the termination of the respondent is illegal and, therefore, as such, there is no error committed by the learned Labour Court in directing the petitioner to reinstate me respondent with 60% backwages and continuity of service. It is submitted that in fact it was specifically stated in the deposition of the respondent that one Shri Patel was appointed as a peon after his termination. It is submitted that in fact it was specifically stated in the deposition of the respondent that one Shri Patel was appointed as a peon after his termination. It is submitted that therefore in the facts of the case, no error has been committed by the learned Labour Court in partly allowing the Reference directing the petitioner to reinstate the respondent with 60% backwages. It is submitted that so far as the finding recorded by the learned Labour Court that the dispute between the petitioner and the respondent is maintainable before the learned Labour Court and the petitioner can be said to be an 'industry' under the provisions of the Industrial Disputes Act is concerned, it is submitted that as such the respondent was appointed and worked as a peon and, therefore, the learned Labour Court had jurisdiction to entertain the dispute between the petitioner and the respondent. Making the above submission, it is requested to dismiss the present Special Civil Application. Heard me learned advocates appearing on behalf of the respective parties at length and considered and perused me impugned judgment and award passed by the learned Labour Court. At the outset, it is required to be noted and even in the statement of claim, the respondent stated that he had worked for seven months only and at the monthly salary of Rs. 1150/-. Considering the entire judgment and award passed by the learned Labour Court mere is no specific finding recorded by the learned Labour Court that the respondent had worked for not less than 240 days in the last preceding year and there is breach of any provisions under Sections 25F, G, H of the Industrial Disputes Act. In absence of any specific finding recorded by the learned Labour Court with respect to breach of any of provisions of the Industrial Disputes Act and/or more particularly Sections 25 F, G, H of the Industrial Disputes Act, the impugned judgment and order passed by the learned Labour Court reinstating the respondent with 60% backwages and continuity of service cannot be sustained. Under the circumstances, in view of the aforesaid alone, the present petition deserves to be allowed keeping the larger question open, whether the petitioner can be said to be an “industry” within the meaning of the Industrial Disputes Act or not? In view of the above and for the reasons stated hereinabove, the present petition succeeds. Under the circumstances, in view of the aforesaid alone, the present petition deserves to be allowed keeping the larger question open, whether the petitioner can be said to be an “industry” within the meaning of the Industrial Disputes Act or not? In view of the above and for the reasons stated hereinabove, the present petition succeeds. The impugned judgment and award passed by the learned Presiding Officer, Labour Court, Surendranagar dated 20/02/1994 in Reference (LCA) No. 242/1994 is hereby quashed and set aside. Rule is made absolute accordingly.