CHANDULAL T SONI Vs. HAJIBHAI B SEPOY

JUDGEMENT

(1.) Heard learned advocate Mr. Clerk for the petitioner and Ms. Nandini Joshi, learned advocate for the respondent workman. By way of this petition under Article 227 of the Constitution of India, the petitioner has challenged the legality, validity and propriety of the award dated 23.8.1993 made by the Labour Court, Ahmedabad in Reference (LCA) No. 1146 of 1987 wherein the labour court has, while allowing the reference made at the instance of the workman, directed the petitioner first party to pay an amount of Rs.5,000.00 (Rs. five thousand only) to the second party workman towards his legitimate retrenchment compensation, notice pay and costs of the reference. The workman concerned expired on 31.5.1992 and, therefore, his heirs and legal representatives have been brought on the record.

(2.) This petition was admitted by this court by issuing rule thereon by order dated 22.12.1993 and while issuing `, interim relief in terms of para 8(A) was granted by this court.

(3.) During the course of hearing of this petition, it was submitted by the learned advocate Mr. Clerk on behalf of the petitioner that the petitioner had, in fact, not engaged the respondent workman and the petitioner is not an industry and he is having one small shop. It was also submitted by him that at the time when the complaint was filed by the workman, it was stated that he was aged about 75 years and according to the respondent, he had worked with the petitioner for about eight years. Therefore, according to him, the workman must have been engaged after completion of the age of retirement. He, therefore, submitted that once an employee has retired and thereafter, he has been engaged, then, the termination of such an employee would not fall within the definition of retrenchment under section 2(oo) of the Industrial Disputes Act, 1947. In support of this contention, reliance has been placed by Mr. Clerk on the decision of the apex court in case of Binoy Kumar Chatterjee v. M/s. Jungantar Limited and others reported in AIR 1983 SC 865. He also submitted that there was no document produced by the workman to show that he was engaged by the petitioner as alleged and that he worked with the petitioner for eight years as alleged. He submitted that these facts were not properly appreciated by the labour court and the labour court has committed an error in holding that he was the workman of the petitioner. According to him, the labour court was not having jurisdiction to pass such orders. He also emphasized that the Inspector under the Bombay Shops and Establishment Act visited the shop of the petitioner on 8th November, 1976 and the name of the respondent workman was not in the visit book and, therefore, naturally it can be inferred that the respondent was not engaged by the petitioner but this aspect has not been properly considered by the labour court. He also submitted that the labour court has committed an error in granting lumsum award of Rs.5000.00 in favour of the respondent workman without jurisdiction and according to him, that is the basic error committed by the labour court and, therefore, this court should interfere with the award in question made by the labour court. Except these submissions, no other submissions have been made by the learned advocate Mr. Clerk on behalf of the petitioner, though he read the entire award made by the labour court before this court while making his submissions.