LAXMAN Vs. STATE INDUSTRIAL COURT

JUDGEMENT

(1.) The appellant was appointed as a motor-driver in the Milk Scheme at Nagpur by the Regional Dairy Development Officer on December 10, 1959 and on February 28, 1962 his services were terminated by the order of the Dairy Development Commissioner, Bombay - Respondent No.5. After the appointment the appellant was on probation for a period of six months and since that period was not extended it is his contention that he is a permanent employee inasmuch as the standing orders wich came into force on September 30, 1961 made an employee on probation permanent after completion of one year's probationary period. On March 20, 1962, the appellant filed an application before the Assistant Labour Commissioner, Nagpur, under S.16 of the C.P. and Berar Industrial Disputes Settlement Act, 1947 - hereinafter referred to as 'the Act' praying for reinstatement with back wages and continuity of employment. In that application the appellant stated that if the order of termination amonted to dismissal that order was void as it was made without any inquiry and if it was an order of retrenchment it was equally bad as no notice of change was given under S.31 of the Act. The termination was also said to be illegal as it was brought about by an authority which had not appointed him. The Assistant Labour Commissioner who heard the petition set aside the order of termination and directed respondents 3 to 5 to reinstate the appellant with back wages and continuity of service inasmuch as it was held that the appellant having completed the probationary period of one year became a permanent employee. In this view, the other contentions raised by the appellant were not decided.

(2.) Respondents 3 to 5 filed a revision before the State Industrial Court under S.16(5) of the Act. That Court set aside the order on August 12, 1963, and remanded the case for a fresh decision as to whether the appellant was a permanent employee and whether he was illegally retrenched. After remand the Deputy Commissioner of Labour at Nagpur after considering the evidence came to the conclusion that the appellant was not a permanent employee under the provisions of the Standing Orders. He however, held that as the appellant was in continuous service, he had been retrenched illegally without following the provisions of S.25-F of the Industrial Disputes Act - hereinafter called 'the Central Act'. In the result respondents 3 to 5 were directed to reinstate the appellant with back wages and continuity of service. Against this order responents 3 to 5 filed a revision application under S.16(5) of the Act before the State Industrial Court at Nagpur. In that revision an application was made by the respondents for amendment of the revision petition raising a plea for the first time that the appellant being a retrenched employee was not an "employee" under the provisions of the Act. The State Industrial Court did not accept this plea and while setting aside the reinstatement order held that the appellant was entitled to retrenchment compensation and consequently remanded the case for determination of what that compensation should be. Against the order respondents 3 to 5 filed a petition under Articles 226 and 227 of the Constitution of India. The appellant also filed a petition under Article 226 of the Constitution in the High Court for modification of the order of the State Industrial Court and for reinstatement with back wages and continuity of service along with all its privileges. Both these petitions were heard together by the Division Bench of the Bombay High Court at Nagpur. By a common judgment, the High Court allowed the application of respondents 3 to 5 holding that the appellant was not an "employee" within the meaning of Section 2 (10) of the Act as his dismissal, discharge or removal was not on account of an industrial dispute. In this view, the applent's petition was dismissed. These two appeals are with certificate against that judgment.

(3.) The question which falls for consideration is whether under the Act a dismissed, discharged or retrenched employee can invoke the jurisdiction of the authority under the Act for obtaining redress, namely, whether an application for reinstatement and compensation by a dismissed employee is maintainable under S.16 of the Act. The determination of this question would depend upon the interpretation of who the employee is for the purposes of the Act and what is meant by "on account of any industrial dispute" in S. 2(10) read with S.2(12) and (13). These provisions, as also S.16, insofar as material, are given below:-