ABAD DAIRY Vs. SAROJBEN MAHESHBHAI TALATI

JUDGEMENT

(1.) By way of this petition under Article 227 of the Constitution of India the petitioner-Abad Dairy has prayed for an appropriate writ, order or direction quashing and setting aside the impugned judgement and award dated 30/09/2003 passed by the Labour Court, Ahmedabad in Reference (L.C.A.) No. 1265/1985 by which the Labour Court has directed the petitioner to reinstate the concerned workmen with 25% back wages with all consequential benefits.

(2.) The facts leading to the present Special Civil Application in a nutshell are as under; 2.1. It is an admitted position that all the concerned workmen, respondents nos. 1 to 4 herein, were the employees of the Contractor, Shri Manojkumar Dhru whose contract with Abad Dairy came to an end on 22/10/1985. Thereafter, the Contractor relieved and/or terminated the services of respondents nos. 1 to 4 herein in the year 1985 i.e. on 22/10/1985. Being aggrieved and dissatisfied with the same, the concerned workmen raised industrial dispute terminating the services by the Contractor, which was referred to the Labour Court, Ahmedabad, which was numbered as Reference (L.C.A) No. 1265/1985. It is to be noted that the terms of reference to the Labour Court was with respect to termination by the Contractor and reinstatement. It is also required to be noted that at the relevant time the relief was only against the Contractor and consequently even the terms of reference was also against the Contractor. It appears that the Contractor closed his business and started new business in the name of M/s. Ami Enterprise. The concerned workmen submitted an application, Exh. 15 permitting them to join M/s. Ami Enterprise as party to the reference, which was allowed. After a period of 10 years of raising the industrial dispute, the concerned workmen submitted an application before the Labour Court permitting them to join M/s. Ami Enterprise as party respondent, which came to be allowed by the Labour Court. Thereafter, despite clear cut finding given by the Labour Court that the concerned workmen were the employees of the Contractor and though there was no terms of reference to the Labour Court whether the concerned workmen were the employees of the petitioner as principal employer, the Labour Court vide impugned judgement and award held that as at the relevant time the petitioner was not having any license, on completion of the contract, the petitioner became the principal employer and thereby the Labour Court passed the impugned judgement and award declaring that the concerned workmen were the employees of the petitioner, being the principal employer and consequently passed an order of reinstatement with 25% back wages against the petitioner. Being aggrieved and dissatisfied with the impugned judgement and award passed by the Labour Court, Ahmedabad in Reference (L.C.A.) No. 1265/1985 directing the petitioner to reinstate the concerned workmen, respondents nos. 1 to 4 herein with 25% back wages and to treat all the concerned workmen as employees of the petitioner, as a principal employer, the petitioner has preferred the present Special Civil Application under Article 227 of the Constitution of India.

(3.) Shri Varun Patel, learned advocate appearing on behalf of the petitioner has submitted that the impugned judgement and award passed by the Labour Court is absolutely illegal and contrary to the evidence on record and without any jurisdiction, which deserves to be quashed and set aside. It is further submitted that as such the dispute/question whether the concerned workmen were the employees of the petitioner as principal employer was not referred to the Labour Court and the terms of reference was only with respect to termination of the services of the concerned workmen by the Contractor and reinstatement against the Contractor, and, therefore, the Labour Court was not justified in holding that the concerned workmen were the employees of the petitioner as principal employer. Thus, the finding given by the Labour Court is beyond the terms of reference, which is not permissible. It is further submitted by Shri Patel, learned advocate appearing on behalf of the petitioner that even it was pointed out to the Labour Court that the Dairy and other activities were closed since 1997 and despite the same and without considering the above the Labour Court has passed the impugned judgement and award directing the petitioner to reinstate the concerned workmen with 25% back wages, which deserves to be quashed and set aside and, therefore, it is requested to allow the present petition.