(1.) Heard learned advocate Ms. Acharya for the petitioner and Mr. T.R. Mishra for the respondent workman. By way of this petition under Article 226 /227 of the Constitution of India, the petitioner Board has challenged the award made by the labour court concerned in Reference No. 1692 of 1989 dated 28/09/1999 wherein the labour court concerned has granted reinstatement with continuity of service with 50 per cent of the back wages for the intervening period. During the course of hearing, learned advocate Ms. Acharya has submitted that as per annexure -B page 16, the respondent was appointed on 26/06/1986 and worked upto 13/10/1989 on periodical basis and in each occasion, separate orders were issued by the Board on different posts and, therefore, though the workman has completed 240 days or has remained in continuous service for a period of more than 12 months, he is not entitled for the benefit of section 25-F of the Industrial Disputes Act, 1947 in view of the provisions of section 2(oo)(bb) of the Industrial Disputes Act, 1947 and the labour court concerned has erred in not appreciating this aspect of the matter and, therefore,this Court should interfere with the award in question in exercise of the powers under Article 226/227 of the Constitution of India. Except these submissions, no other submissions were made by Ms. Acharya on behalf of the petitioner Board.
(2.) As against that, learned advocate Mr. Mishra for the respondent workman has submitted that the labour court has considered all these aspects while passing the award in question. The labour court has, after considering the periodical appointments on different posts at different point of time, come to the conclusion that these are artificial breaks intentionally given by the respondent Board and it amounts to arbitrariness on the part of the Board and once if it is proved that there is mala fide intention and arbitrariness in issuing such type of periodical orders, then, the provisions of section 2(oo)(bb) would not apply and it is not simply periodical orders but such orders on periodical basis on different posts were issued only with a view to deprive the respondent of his legitimate rights and such type of tactics have been adopted by the petitioner board and, therefore the labour court has rightly concluded that these are artificial breaks intentionally given by the Board which amounts to unfair labour practice, mala fide and exploitation by the respondent Board and, therefore, the labour court has rightly come to the conclusion that the respondent has completed 240 days' continuous service and section 25F not followed by the Board and, therefore, the labour court granted reinstatement with continuity of service and therefore it made the award of reinstatement. As regards the back wages, he has submitted that while considering the aspect of back wages, the labour court has kept in view that the petitioner is a public body and it will not be proper to burden the petitioner board by granting full back wages and, therefore, it granted only 50 per cent of the back wages for the intervening period and thus, the award made by the labour court is just and proper requiring no interference of this court.
(3.) I have considered the submissions made by both the learned advocates. I have also perused the award in question made by the labour court. Before the labour court, the respondent workman has challenged the termination order dated 1 3/10/1989 by filing statement of claim at Exh. 7 and written statement thereto was filed at Exh.1 2 and then, documents were produced by the petitioner Board at Exh. 26 which have been exhibited and then, the respondent was examined at Exh. 14 and the petitioner board has examined one Kantibhai Ranchhodbhai at Exh. 23 and thereafter, written arguments were submitted by both the parties and ultimately the labour Court examined the merits of the matter. As regards the contention of the petitioner that the respondent was being appointed on periodical basis by issuing periodical appointments on different posts and, therefore, it does not amount to retrenchment in view of the provisions of section 2(oo)(bb) of the I.D. Act, 1947, the labour court has examined what is certain period of appointment as per section 2(oo)(bb) of the I.D. Act, 1947 and has then come to the conclusion that these are not the appointments for a fixed period because each appointment was for a period of about 2/3 months and every time after completion of the period,the workman was being appointed for a different further period and on that basis, he continued to remain in service with the board. In view of these facts, the labour court has come to the conclusion that section 2(oo) (bb) of the I.D.Act would not apply. The labour court has also considered that by each order, the respondent was being appointed for a fixed period of 30 days or 60 days, no doubt for a period as specified in the order but immediately thereafter, the respondent was being appointed for a further period and he thus remained in service from 1986 to 1989 continuously excepting the break of 2 to 4 days on each occasion. IN view of these facts, the labour court has recorded the conclusion that such type of appointments on periodical basis were considered as arbitrary and mala fide and exploitation on the part of the petitioner body. At this stage, it is required to be noted that such type of appointments on periodical basis were being given by the board just to get rid of the statutory provisions and just to deprive the workman of his legitimate rights and such type of appointments for a specified period on periodical basis are required to be justified that for such particular circumstances or compelling circumstances, such appointments on periodical basis were given or for some special work was required to be carried out by the workman concerned or to meet with any exigencies of the work. However, in the instant case, the petitioner board has not been able to justify such periodical appointments and for want of such justification, and in the facts and circumstances of the case, the labour court has come to the conclusion that this has been done by the petitioner board just to deprive the respondent workman from claiming protection under sec. 25F of the Industrial Disputes Act, 1947. Therefore, according to my opinion, merely because the appointment orders were issued on periodical basis or for a specified period, it would not automatically take away the legitimate right of the workman and the provisions of section 2(oo)(bb) would not automatically come into play but it has to be justified by the employer and if it is not justified, then,it amounts to unfair labour practice, exploitation and arbitrariness on the part of the employer. In the instant case, the petitioner has not been able to justify such appointments on periodical basis and, therefore, according to my opinion, for want of such justification, the labour court was right in coming to the conclusion that it amounts to exploitation and arbitrariness on the part of the petitioner board. This aspect has been examined by this court in case of Surat Mahila Nagrik Sahakari Bank v. Mamtaben Mahendrabhai Joshi reported in 2001(2) GLR 1248 wherein, in an identical situation, this court has come to the conclusion that such type of appointments on periodical basis were not justified by the Bank and, therefore, this Court has come to the conclusion that this is clearly arbitrariness and mala fide and unfair practice adopted by the Bank. In the said decision, this Court has, after considering number of decisions cited at the Bar, has observed as under in para 18, 19 and 20 as under: