RAJKOT DISTRICT PANCHAYAT Vs. VINOD DHANJIBHAI VIRPURIA

JUDGEMENT

(1.) Heard learned advocate Mr. H.S. Munshaw for petitioner and Mr. P.R. Desai for respondent. In this petition under Article 227 of Constitution of India, petitioner has challenged award made by labour court, Rajkot in Reference No. 351 of 1990 dated May 17, 2002 wherein labour court, Rajkot has granted reinstatement with continuity of service with 50% back wages for intervening period. Initially, this Court issued rule and granted ad-interim relief subject to compliance of section 17B of INDUSTRIAL DESPUTE ACT, 1947 from date of award of labour court and it was clarified that it was open for petitioner to reinstate workman rather than paying idle wages. Affidavit in reply is filed by respondent workman.

(2.) Learned advocate Mr. Munshaw appearing for petitioner has raised contention that this respondent was appointed against permanent vacant post as daily wager by order dated 1st April, 1984 till regular employee is appointed on vacant post. He also submitted that on 15th June, 1990, one Lakhiyatar Chhotabhai Shamjibhai, regularly selected candidate, was appointed against vacant post, therefore, service of present respondent was terminated. He submitted that the appointment of respondent was made on contingency or with stipulation that the moment regularly selected candidate is available, service of respondent would stands terminated. Therefore, it is his submission that section 2(oo) (bb) of INDUSTRIAL DESPUTE ACT, 1947 is applicable, therefore, petitioner is not duty bound to comply with provisions of section 25F of INDUSTRIAL DESPUTE ACT, 1947 as such termination is not amounting to retrenchment within the meaning of section 2(oo). He further submitted that now post is not available and, therefore, petitioner cannot directed to reinstate the respondent in service. Therefore, award of reinstatement is required to be quashed. Alternatively, as regards 50% back wages granted by labour court for intervening period, he submitted that the award of back wages is on higher side and same is required to be quashed or reduced. Therefore, in short, his submission is that labour court has erred in coming to conclusion that section 25F has been violated. Except these submissions, no other submissions were made by Mr. Munshaw before this Court. No decision has been cited by him before this Court.

(3.) On the other hand, learned advocate Mr. P.R. Desai appearing for respondent submitted that in order of appointment given to respondent, no such stipulation or contract is specifically mentioned by petitioner. Contingency cannot be considered to be stipulation in contract of service. Contingency itself is uncertain, therefore, it cannot be termed or considered as specific stipulation, therefore, according to him, 2(oo) (bb) is not applicable to case of respondent. He also submitted that no such submissions were made by petitioner before labour court and no such contentions were raised by petitioner before labour court and petitioner cannot be permitted to raise such contentions for the first time before this Court. He further submitted that the provisions of section 2(oo) (bb) came into effect by Amendment Act No.49 of 1984 with effect from August 18, 1984 whereas date of appointment of respondent is 1st April, 1984 and on that day, provisions of section 2(oo) (bb) were not there in the ID Act, 1947, therefore, contention of Mr. Munshaw as regards applicability of sec. 2(oo) (bb) of INDUSTRIAL DESPUTE ACT, 1947 cannot be accepted. According to him, service of workman was terminated on 23rd January, 1990. Workman immediately raised industrial dispute in 1990 and reference made by appropriate Government to Labour Court remained pending waiting for adjudication for a period of about 12 years and for pendency of reference for such a long period, it cannot be said that respondent was responsible. According to him, Respondent was not at all fault for such delay in adjudication of reference by labour court. According to him, petitioner was remaining absent on number of occasions and case was reopened earlier by labour court on that count and thus, petitioner is responsible for delay in adjudication of reference to a great extent. According to him, though there is no fault on the part of respondent for such delay, labour court has taken it into consideration while considering the aspect of back wages. According to him, though it was deposed by workman that he remained unemployed during intervening period and was not gainfully employed, labour court, considering fact that one would not sit idle and one would not remain unemployed for such a pretty long period, labour court curtailed award of back wages and granted only 50% of back wages though assertion of respondent about his unemployment during intervening period was not controverted by petitioner and, therefore, according to his submission, award of 50 per cent back wages is also proper, just and reasonable and prayed that this court may not interfere with the same and reject petition as a whole since petitioner is not able to point out any infirmity or irregularity or jurisdictional error committed by labour court while passing award in question.