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2016 DIGILAW 606 (GUJ)

Kantaben Madhavrav Uttekar v. Sayaji High School

2016-03-16

K.M.THAKER

body2016
JUDGMENT : K.M. Thaker, J. 1. Today, when the petition is called out and taken up for final hearing, learned advocate for the petitioner is not present. However, on earlier occasion, learned advocate for the petitioner addressed the Court and made submissions with regard to the relief prayed for in the petition. The learned advocate had referred to the decision dated 23.11.2007 in Letters Patent Appeal No. 170 of 2003. 1.1 Mr. Shasvat Shukla, learned advocate, for Mr. Majmudar, learned advocate for the respondent, is present. On previous occasion, learned advocate for the respondent had also made submissions. Today also, learned advocate for the respondent is heard. 2. In view of the discussion which took place during hearing on previous occasion and in view of the suggestion which emerged during the hearing of previous occasion, today, at the time of hearing, learned advocate for the respondent fairly submitted, upon instructions from the respondent, that the respondent is ready and willing to pay a sum of Rs. 20,000/- in full and final settlement of all claims, rights, demands, etc. of the petitioner including those arising from the award in respect of which present petition is filed. 3. Learned advocate for the petitioner is not present and therefore, any response from the petitioner is not available before the Court. 4. In this petition, the original claimant has challenged award dated 7.9.2000 passed by the learned Labour Court, Vadodara in Reference (LCV) No. 796 of 1993 whereby the learned Labour Court directed present respondent school to reinstate the petitioner on original post with continuity of service and with backwages. The said award dated 7.9.2000 in Reference (LCV) No. 796 of 1993 was passed ex-parte and that therefore, present respondent school had preferred an application under Rule 26(A) of the Industrial Disputes (Gujarat) Rules, 1961 with a request that the ex-parte award may be recalled and the reference proceedings may be restored and may be heard and decided on merits. 5. The said application was registered as Misc. Application No. 51 of 2000. The learned Labour Court heard the parties and passed the order dated 17.8.2001 in said Misc. Application No. 51 of 2000. By the said order dated 17.8.2001, the learned Labour Court recalled the ex-parte award dated 7.9.2000 in Reference (LCV) No. 796 of 1993 and directed restoration of the proceedings on condition that the respondent school will pay Rs. The learned Labour Court heard the parties and passed the order dated 17.8.2001 in said Misc. Application No. 51 of 2000. By the said order dated 17.8.2001, the learned Labour Court recalled the ex-parte award dated 7.9.2000 in Reference (LCV) No. 796 of 1993 and directed restoration of the proceedings on condition that the respondent school will pay Rs. 5,000/- towards cost to the claimant - present petitioner. It appears that the said amount was paid by the respondent to present petitioner consequently, the proceedings and the reference case i.e. Reference (LCV) No. 796 of 1993 was restored. At that time, the said reference was re-numbered/re-registered as Reference No. 805 of 2001. Thereafter, the reference case was heard on merits. After adjudication of the dispute and examining the material on record and rival submissions by the contesting parties, learned Labour Court passed the order dated 29.7.2005 whereby the learned Labour Court rejected the reference. Feeling aggrieved by the said award dated 29.7.2005, original claimant has taken out present petition. 6. In this petition, the petitioner has prayed, inter alia, that:-- "8(II) Your Lordship may be pleased to quash and set aside Annexure-E and direct the respondent to pay the arrears of salary at minimum wage rate, as the petitioner was completed 60 years age and can not be reinstated as she has reached at the age of superannuation during the pendency of 2nd reference i.e. LCV No. 905/01 filed by the respondents, whereas during the pendency of first Reference i.e. LCV No. 796/93 sher was 58 years only." 7. From the relief prayed for by the original claimant - present petitioner, it emerges that the petitioner - original claimant has challenged the award dated 29.7.2005, however, she has also declared that during pendency of above mentioned proceedings, she reached age of superannuation and that therefore, question of actual reinstatement would now not survive and that therefore, she has prayed that since reinstatement is not possible, the respondent school be directed to pay wages and other benefits to the petitioner by setting aside the award. 8. On examination of the award, it has emerged that the learned Labour Court rejected the reference essentially on the ground that the petitioner was engaged and working on part-time basis and that therefore, she cannot be termed as "workman". 8. On examination of the award, it has emerged that the learned Labour Court rejected the reference essentially on the ground that the petitioner was engaged and working on part-time basis and that therefore, she cannot be termed as "workman". The learned Labour Court, being of the view that part-time employee cannot be said to be an employee, rejected the reference. 9. Unfortunately, while proceeding on such premise and with such view and while dismissing the reference vide order dated 29.7.2005, the learned Labour Court did not take into consideration the decision dated 23.11.2007 by Hon'ble Full Bench - while answering the Reference - in Letters Patent Appeal No. 170 of 2003 wherein Hon'ble Full Bench answered the reference with the observations that:-- "3.3 Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the ID Act but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. 3.4 We do find some substance in the submission made on behalf of the employers that if a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation as illustrated on behalf of the employers and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration. 38. The question whether a person who has made a claim before the Labour Court is a "workman" will be a mixed question of law and fact. 38. The question whether a person who has made a claim before the Labour Court is a "workman" will be a mixed question of law and fact. Whether a person rendering services on a part-time basis can be said to be a "workman" within the meaning of the Industrial Disputes Act, 1947 would similarly be a mixed question of law and fact. Hence the appeal is remitted back to the Division Bench for deciding the question whether the respondent herein was a workmen within the meaning of the Industrial Disputes Act, 1947." 10. In this view of the matter, more particularly in view of the fact that relevant evidence on the strength of which the aspects discussed by Hon'ble Full Bench can be considered and decided was not led before the learned Labour Court at the time when the reference came to be decided by the award dated 29.7.2005, it would be necessary to remit the matter to learned Labour Court for fresh decision. On examination of the award, it emerges that relevant and necessary evidence in light of which the Court can decide the issue viz. whether the petitioner, though she was working as part-time employee, would come within the purview of the term "workman" as defined under Section 2(s) of the Act, or not, was not recorded when the Court decided the reference. Thus, in view of the aspects clarified and laid down by Hon'ble Full Bench in above mentioned decision, it would be appropriate to remand the case for fresh decision after recording appropriate evidence. However, in view of the declaration made by the petitioner in the petition and also from the relief prayed for by the petitioner in the petition, it has emerged that the petitioner reached age of 58 years on 8.10.2001 and in 2005, she was 63 years old. In paragraph No. 3.2 of the petition, the petitioner has averred and stated that:-- "3.2 The petitioner submits that the Learned Labour Court has admitted in Para-8 of the Award that, as per Exhibit-13 in cross examination the petitioner aged about 58 years on 8-10-2001, so in the year 2005 her age is 63 years. So as per the model standing order the age of 60 years is superannuation age and no reinstatement order can be issued. But the order for payment of minimum wages can be awarded." 11. So as per the model standing order the age of 60 years is superannuation age and no reinstatement order can be issued. But the order for payment of minimum wages can be awarded." 11. In this set of facts and circumstances, it would not be fruitful to remand the matter for fresh decision so that necessary and appropriate evidence can be recorded. Further, it will result into more time and cost for the petitioner. 12. From the record, it has emerged that at the relevant time, i.e. at the time when the service was allegedly terminated, her salary was Rs. 250/-. 13. Having regard to the above facts and circumstances and in view of the fact that now it is not practicable to remand the matter for fresh decision, it appears that interest of justice would be served if the respondent is directed to pay lump sum amount to the petitioner in lieu of full and final settlement of all claims, rights, demands, disputes, etc. It appears that lump sum amount in the tune of Rs. 20,000/- is just and reasonable in view of the salary which the petitioner was drawing at the relevant time, her age at the relevant time of alleged termination and at the time of award. Therefore, following order is passed:-- "[a] Present petition is disposed of with direction to the respondent to pay Rs. 20,000/- as lump sum compensation to the petitioner. On payment of such amount, all claims, disputes, demands and rights of the petitioner including those flowing from the award dated 7.9.2000 or otherwise, would stand finally and permanently settled. [b] On such payment, any claim or dispute or demand or right of the petitioner against the respondent shall not survive. With aforesaid observations and direction, present petition stands disposed of. Rule is made absolute to the aforesaid extent."