STATE OF GUJARAT Vs. MUSABHAI ISMAILBHAI SAMA

JUDGEMENT

(1.) Heard learned counsel for the parties.

(2.) The petitioner State has challenged the award of the Labour Court, Junagadh in this petition whereby the Labour Court had held the termination of the respondent-workman being violative of Section 25F as the workman had completed 240 days and he was retrenched without compensation. Learned counsel for the State was of the opinion that this finding of the labour court is erroneous because, at best, it can be said that the workman had worked for 232 days in the year 1990-91. In this regard, the labour court has relied on a decision of this Court and has held that the workman had worked for 240 days. Apart from that, this has been urged on behalf of the workman that when it is admitted case of the State that the workman had worked for 232 days in the year 1990-91, according to the decision of the Honourable Supreme Court in the case of Workmen, A.E.I.B. Corporation v. Management, A.E.I.B. Corporation, AIR 1986 SC 458 while calculating workman's days of working, the Honourable Supreme Court has stated that employment of the workman in such contingencies should be considered in light of Section 25B of the Industrial Disputes Act, 1947. The expression "actually worked under the employer" cannot mean those days only when the workman worked with hammer, sickle or pen, but must necessarily comprehend all those days during which he was in the employment of the employer and for which he had been paid wages should be taken into account. In this case, there is nothing on record, which has been produced by the State to rebut this consideration. It is the case of the State that the workman had worked for 232 days in the year, but that includes paid holidays and Sundays. In that view of the matter, eight days can be added to those 232 days and thus no findings of the Labour Court cannot be found fault with.

(3.) The learned counsel for the respondent-workman has agreed that in view of the interim order for reinstatement of the workman, which might have taken place in view of the non-grant of stay to the State, he gives up his claim for major part of the back wages i.e. 90% back wages.