SAMARTH SAMAJ A REGISTERED PUBLIC TRUST UNDER THE BOMBAY PUBLIC TRUST ACT Vs. MANOHAR SHANKAR SAHASTRABUDHE

JUDGEMENT

(1.) THE petitioner is aggrieved by the impugned Award dated 16-9-1993 passed by the 4th Labour Court, Thane holding that the action of terminating the services of the respondent-employee as illegal, null and void with effect from 5-12-1987. However, instead of granting reinstatement, as a normal rule, the Labour Court has moulded the relief and has awarded full back-wages from 5-12-1987 till December, 1992 at the rate of 800/- per month and a sum of Rs. 10,000/- in lieu of reinstatement. The respondent employee has not challenged this Award whereby he has been denied reinstatement, as a normal rule. The petitioner employer is aggrieved by the said Award and has filed the present writ petition under Articles 226 and 227 of Constitution of India.

(2.) IT appears from the record that the petitioner is a registered Public Trust under the Bombay Public Trusts Act, 1950 having a School viz. S. H. Jondhale Vidya Mandir. The respondent employee was employed by the petitioner from 10-3-1985 to look after the construction and repair work of the school building. He was in employment till 26-6-1985 and he came to be terminated from employment on the ground of his unsatisfactory work. There is no dispute that inspite of his alleged unsatisfactory work, he was re-appointed w. e. f. 1-8-1986 and he continued till 4-1-1988. According to the petitioner, the services of the respondent-employee were lawfully discontinued as there was no work for him in view of building construction work having been completed. The petitioner trust has also pleaded that the respondent-employee was temporarily appointed and, therefore, he was rightly discontinued or terminated from the employment. It was also pleaded by the petitioner that the respondent-employee being a supervisor, the Industrial Disputes Act was not applicable, and therefore, the industrial dispute referred by the Government for adjudication was bad in law. It was also urged before the Labour Court that the petitioner-trust was not an industry to attract the said Act. It was submitted by the petitioner before the Labour Court to reject the reference.

(3.) FROM the record it is found that there are contradictory statements made on behalf of the petitioner employer in the pleadings and also in the evidence. I am not entering into that controversy as it is not relevant. Undisputed facts which clearly indicate that the respondent was in employment of the petitioner from 1-8-1986 till December 1987. Obviously he has completed more than 240 days continuous employment within the meaning of the law. At one place the petitioners have pleaded that he was discontinued from the employment w. e. f. 3-1-1988 on the ground that the construction work was completed and now it is an admitted position before me that his services were terminated with effect from 5-12-1987. Considering all the facts and circumstances and the evidence on record, the Labour Court has come to the definite conclusion that the petitioner is an industry and that the respondent employee squarely falls within the definition of workman given under section 2 (s) of the Act and that he has completed more than 240 days continuous employment under the petitioner and that requirements under section 25-F of the Act have not been complied with and, therefore, the termination order is held to be illegal and improper. Even accepting the case of the petitioner that the respondent employee had absented himself from the employment the law requires that a charge-sheet should be issued requiring the absenting workman to explain his absence and to join employment and in case the delinquent workman fails to join a domestic enquiry must be held and thereafter action of termination/dismissal etc. should be taken. The petitioner has not resorted to this course which was obligatory. A case of simple termination of employment falls within the parameters of retrenchment as held by the Supreme Court and this position has been well established and no decision need be cited. If the employee remain absent and his name is removed from the muster roll this action on the part of the employer amounts to retrenchment and section 25-F has got to be complied with and failure to do so even in the case of so called abandonment of employment by the employee would be null and void. In our case the petitioner has not complied with any provisions of law. Neither the course of charge-sheet, enquiry and dismissal of employment is resorted to nor the mandatory provisions of section 25-F of the Act have been complied with. Considering the facts and circumstances and evidence on record according to me, the Labour Court has rightly come to the conclusion that the termination of employment in any manner by the petitioner is illegal and improper and therefore, the Labour Court has held that the respondent employee was entitled to get reinstatement as a normal relief. Since, however, there is no construction work left and it was completed admittedly by 1992, the Labour Court had rightly departed from normal rule of reinstatement and awarded Rs. 10,000/- in lieu of reinstatement in addition to full back wages upto the year 1992. There is no other escape from the aforesaid conclusion to which the Labour Court has come. From the record it appears that the petitioner management has acted high handedly with the respondent employee. I do not find any illegality or infirmity in the award of the Labour Court. By now the law has become crystal clear that if a workman completes 240 days continuous employment, section 25-F of the Act must be complied with at the time of termination of his employment. Needless to say that every such termination will have to be within the four corners of the law and if it crosses boundary it attracts a charge of illegality which results into reinstatement with full back wages normally or ordinarily. All the ingredients are present in this case. The Labour Court has exhaustively dealt with the facts and the relevant material. The Labour Court has also rightly departed from the normal rule of reinstatement in the present cases as the construction work for which the respondent No. 1 was employed was admittedly completed by the end of 1992 and that work was not available at the time of decision of the dispute. The Labour Court has rightly awarded full back wages and compensation in lieu of reinstatement. I do not find any fault with the award of the Labour Court.