DEPUTY EXECUTIVE ENGINEER Vs. JIVIBEN V PANDYA

JUDGEMENT

(1.) Learned Advocate Ms. Sejal K. Mandavia appearing on behalf of the petitioner and Learned Advocate Mr. D.M.Thakker appearing on behalf of the resondent. Rule Mr.D.M.Thakker Learned Advocate on behalf of respondent is waiving the service of rule. With the consent of both the Learned Advocates, the matter has been taken up for final hearing today. In the present petition, the award passed by the Labour Court, Surat in Reference No.266 of 1985 dated 8.10.1998 has been challenged wherein, the Labour Court, Surat has granted reinstatement with continuity of service with full back wages of interim period. Brief facts leading to the filing of the present petition are that the respondent was appointed as a Clerk cum Typist with effect from 1.3.1982 on 29 days' basis and one or two days' artificial breaks were given and she remained in service up to 31.10.1983 and her service was terminated on 1.11.1983. The said termination order was challenged by the respondent-workman before the Labour Court, Surat in Reference No. 266 of 1985 which has been decided by the labour court on 8.10.1998 granting reinstatemnt in favour of the respondent workman with full back wages for intervening period and all consequential benefits with continuity of service. The statement of claim was filed by the respondent-workman and reply was submitted by the petitioner. In paragraph 8 of the award, the labour court has considered the details of working days of the respondent workman and has, in terms, came to the conclusion that the respondent workman has completed 240 days' continuous service within last 12 months preceding the date of termination of her services within the meaning of Sec. 25-B of the Industrial Disputes Act,1947. The labour Court has, therfore, in terms come to the conclusionthat the petitioner has violated the provisions of Section 25-F of the Industrial Disputes Act,1947. The labour court has concluded that before terminating her services, the petitioner has neither served the respondent with any notice or notice pay in lieu of notice and has also not paid any retrenchment compensation to her. In view of such conclusion, the labour court has granted reinstatement in favour of the respondent workman as stated above which has been challenged by the petitioner before this court.

(2.) I have heard the learned advocates for the parties. Learned advocate Ms. Mandavia has submitted that the periodical appointment cannot be considered to be the retrenchment in view of the provisions of section 2 (oo) (bb) of the ID Act. Such contention is not well founded and the same is not acceptable for the simple reason that the amendment of section 2(oo) in the Statute by amending 2(bb) came into effect from 18th August, 1984 and such amendment in the Section has no retrospective effect as held by the division bencyh of this Court in case of Bharat Heavy Electricals Ltd. versus R.V.Krishnarao reported in 1989 (2) GLH page 1. In this case, the service of the respondent was terminated on 1.11.1983 whereas the said amendment has come into effect from 18.8.1984 and, therefore, the petitioner cannot raise such contention and as such, such a contention raised by Ms.Mandavia cannot be accepted. The findings reached by the labour court are the findings of fact which cannot be interfered with by this court while exercising the powers under Article 226 and/or 227 of the Constitution of India. In view of the decision of the apex court in case of Managementof M.C.D. versus Premchand Gupta and others reported in AIR 2000 SC page 454, the directions given by the labour court while setting aside the order of termination to reinstate the respondent workman in service with continuity of service with all consequential benefits is not required to be disturbed and the same is required to be confirmed.

(3.) Learned advocate Ms.Mandavia has submitted that in all, the respondent workman has worked for a period of about one and half year and in the year 1983, on 1.11.1983, she was discharged. The dispute was raised and referred to on 20.10.1985 and the reference remained pending before the labour court for about 13 years or so and the labour court deliverd the impugned award on 8.10.1998 and, in view of these facts, the labour court should not have granted full back wages while reinstating the respondent workman. She has submitted that the petitioner is a public body and is State authoritywithin the meaning of Article 12 of the Constitution of India and, therefore, the labour court ought not to have granted back wages while awarding reinstatement in her favour.Learned advocate Mr.Thakkar appearing for the respondent workman has not seriously disputed this submission made by Ms. Mandavia as regards back wages and has left the same at the discretion of this Court.