DY. EXECUTIVE ENGINEER Vs. SUKHABHAI GANDABHAI

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 respondents. Rule Mr. D. M. Thakker learned Advocate on behalf of respondents waives 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 Nos. 247, 248 and 265 of 1985 dated 30th September, 1998 has been challenged wherein, the Labour Court, Surat has granted reinstatement with continuity of service with full backwages of interim period. The respondents were appointed as Seaman in the year 1980 and remained in service upto 6th August, 1983 and their service were terminated on 6th August, 1983. The said termination orders were challenged by the respondents -workman before the Labour Court, Surat in Reference Nos. 247, 248 and 265 of 1985. The statement of claim was filed by the respondent workman and reply was submitted by the petitioner. The contention of the petitioner was that they were appointed on probation period and their probation period was not found satisfactory and they remained negligent and also remained absent without prior permission and they were not found fit for the post. Both the parties have produced documentary evidence on record and also submitted written arguments. Before the Labour Court, the contention was raised by the petitioner that respondents were working on probation for specific period, their work was not found satisfactory and by afflux of time, their service were terminated and respondents were daily rated employees and such termination cannot be considered to retrenchment and S. 2(oo)(bb) is applicable and, therefore, S. 25 -F is not applicable. The contention of petitioner has been examined by the Labour Court and the Labour Court has come to the conclusion that service of respondents workmen were terminated on 6th August, 1983. After completion of probation period, the respondents were remained in service because respondents have completed more than three years continuous service and, therefore, neither their service were extended on probation and nor they were made permanent. Therefore, respondents -workmen were continued in service after completion of probationary period and, therefore, their service were not terminated by aflux of time as per terms and conditions of probation order and the Labour Court has also considered that service of respondents were terminated because of allegation, misconduct and stigma without holding departmental inquiry against the respondents. Therefore, the Labour Court has set aside the termination order and granted full backwages as gainful employment has not been found to be proved by the petitioner. The reasons given by the Labour Court in paragraph 8 of the award that service of respondents -workmen were not terminated in terms of order of probation and, therefore, S. 2(oo)(bb) is not applicable in the present case but, respondents remained in service after completion of probation period more than three years and service of respondents -workmen were terminated because of misconduct, stigma and allegation without holding any departmental inquiry against the respondents -workmen.

(2.) MS . Mandavia submitted that the Labour Court has committed gross error not to appreciate the contention raised by the petitioner. She cited the decision of the Apex Court reported in 1997 (8) Supreme Court Cases page 461. She also submitted that in present case the termination was on 6th August, 1983 and dispute was raised in the year of 1985 after the period of two years even though, the Labour Court has granted full backwages from date of termination. She also submitted that the reference was pending before the Labour Court in all twelve years and petitioner is a public body and State authority has to bear the burden of full backwages which ultimately the sufferer is public exchequer. Therefore, she submitted that the award of granting full backwages is required to be interfered and Mr. D. M. Thakker appearing on behalf of respondents -workmen have not seriously objected the contention of petitioner.

(3.) THE decision cited by Ms. Mandavia cannot be applicable to the facts of the present case because, in the present case the probation period was six months from date of joining in the year 1980 but, respondents -workmen remain in service upto 6th August, 1983, meanwhile their services were neither extended nor terminated. The Labour Court has set aside the termination on the ground of misconduct without holding departmental inquiry therefore, question of retrenchment does not arise and service of respondent was not terminated as per terms of order of probation.