GUJARAT HOUSING BOARD Vs. MEENAKSHIBEN BHANUSHANKAR BHATT

JUDGEMENT

(1.) Heard Mr.H.S.Munshaw, learned advocate appearing on behalf of the petitioner and Mr. A.S. Supehia, learned advocate appearing on behalf of the respondent.

(2.) In the present petition, the petitioner has challenged the award dated 30/12/2000 passed by the Labour Court, Rajkot in Reference [LCR] No.1374/1989. The Labour Court has granted reinstatement with continuity of service without any backwages for interim period. Learned advocate Mr.Munshaw appearing on behalf of the petitioner has raised first contention to the effect that services of the respondent was terminated on 8/10/1984 and Reference was made before the labour court by the respondent workman on 9th October, 1989 and therefore, there was delay of five years to raise the industrial dispute by the respondent workman and therefore, the labour court should not have entertained such belated Reference and the Reference was required to be rejected only on the ground of delay. Mr.Munshaw, learned advocate has also pointed out that the delay so occurred in raising the dispute was intentional delay on the part of the respondent workman because she was gainfully employed in some other organisation and when again her services were terminated from the Nigam, thereafter, the dispute was raised by the respondent workman against the present petitioner. The second contention raised by the learned advocate Mr.Munshaw that she was appointed as on periodical basis and therefore, as and when the period of service was over, her services was terminated, therefore, it does not amount to retrenchment and Section 2[oo][bb] of the Industrial Disputes Act will apply and therefore, the labour court has committed an error in not appreciating this contention which was raised by the petitioner. The third contention was raised by learned advocate Mr.Munshaw that she was appointed for one or two hours as per the exigency of the work as per the requirement of the petitioner and the respondent was not at all appointed permanently and she was merely temporary working on hourly basis in a day and therefore, she is not at all entitled to reinstatement as granted by the labour court even without backwages. Therefore, a clear error has been committed by the labour court while passing the award and hence, the award passed by the labour court requires to be quashed and set aside by this Court.

(3.) Learned advocate Mr. A.S. Supehia, appearing on behalf of the respondent workman has submitted that looking to the documents produced by the petitioner before the labour court, the respondent workman had completed more than 240 days continues service during a calendar year period preceding from the date of termination. The labour court having factually appreciated the evidence which was produced by the parties before it, has come to the conclusion. Learned advocate Mr.Supehia also submitted that as such, there was no contention raised by the petitioner before the labour court that appointment of the respondent workman was based on periodical basis and therefore, it does not amount to retrenchment and the provisions of Section 2[oo] [bb] will apply. It is also submitted that no specific contention was raised by the petitioner before the labour court, Rajkot nor any such submission was advanced by the petitioner before the labour court. According to Mr.Supehia, learned advocate this is for the first time, such contention is raised which requires to be substantiated by legal evidence as the final determination arrived on the basis of appreciation of factual aspects, cannot be disturbed unless the contention is proved and substantiated by legal evidence. Mr.Supehia, learned advocate further submitted that documentary evidence vide Exh.12 to 14 and 43 - 48 are sufficient to establish the working days of the respondent workman. He also submitted that there was evidence on behalf of the petitioner vide Exh.45, where the witness of the petitioner has admitted the facts that the respondent workman was appointed on 21st January, 1981 as daily wage Clerk in the office of Estate Manager. Thereafter, the respondent workman was appointed on 23rd January, 1982 to 5/04/1984 continuously on monthly salary of Rs.75.00 and ultimately on 7/07/1984 again the respondent workman was appointed and remained in service upto 30/11/1984. This evidence has been substantiated with the documentary evidence which has been produced by the petitioner. Mr.Supehia, learned advocate has also submitted that in the evidence of the petitioner at Exh.45, the work which was allotted by petitioner to the respondent workman was permanent work and after termination of the respondent workman, said work given to the respondent workman was looked after and handled by one Shri Joshi. It is further submitted that it is undisputed situation that at the time of termination, Section 25-F has not been complied with by the petitioner. Learned advocate Mr.Supehia has also pointed out that the labour court has considered the actual working days on the basis of the documents produced by the petitioner at Exh.12, 14, 43 and 44, wherein, it reveals that the respondent workman had worked for 89 days in 1981, in the year 1982 - 120 days, in the year 1983 and 365 days and 297 days in the year 1984. These working days have been taken into account by the labour court on the basis of the statement produced by the respondent workman vide Exh.10 and panchanama at Exh.23 / 42 as well as Exh.12 to 14 and 43 produced by the petitioner. Therefore, once the labour court has appreciated the actual evidence and come to the conclusion that the respondent workman has completed more than 240 days actual service continuously and this fact clearly established from the documentary evidence produced by the petitioner but despite this, Section 25 F provisions were not complied with and therefore, obviously, in such circumstances, termination order is null and void. Learned advocate Mr.Supehia has also relied upon a decision of the Apex Court in case of the Management of M.C.D. v. Prem Chand Gupta reported in AIR 2000 SC 454. Learned advocate Mr.Supehia has also pointed out that not to raise the dispute for period of five years, therefore, the labour court cannot dismiss the Reference only on the ground of delay but the Labour Court ought to have decided the merits and adjudicate the dispute which has been referred by the concerned authority but the labour court can consider the delay while granting the relief. Therefore, he submitted that in the present case, the labour court has not granted any backwages for interim period and therefore, considering the entire award, there is no error apparently committed by the labour court which requires any interference by this Court. Learned advocate Mr.Supehia, also pointed out that this Court has limited powers under Article 226 and 227 of the Constitution and therefore, this Court cannot sit as an appellate authority and cannot appreciate the evidence which was already appreciated by the labour court.