R NAVROJI AND CO Vs. FRANCIS E LOBO

JUDGEMENT

(1.) The Petitioner is a partnership registered under the provisions of the Indian Partnership Act,1932 and inter-alia engages in the business of running a printing press. On 3rd December, 1989 the First Respondent, stating that he was 55 years of age, submitted an application for being appointed as a Machine Operator. The date of birth of the First Respondent is 21st March, 1935. On 12th December,1989 the Petitioner appointed the First Respondent for a period of six months. The First Respondent was appointed subject to the condition that if during the period of employment his work was not found satisfactory, the management reserved its right to terminate the temporary appointment. On 7th June, 1990 the services of the First Respondent were extended, treating him to be on probation, until 31st July,1990. On 26th August, 1990 the services of the First Respondent were terminated. The First Respondent sought a reference to adjudication under Section 10 (1) of the Industrial Disputes Act, 1947. By the time that the Labour Court delivered its Award on 14th July, 2003, the First Respondent was well over 68 years of age. The Labour Court came to the conclusion that the First Respondent had worked for a period of more than 240 days and the termination without complying with the provisions of Section 25F was illegal. Reinstatement was ordered with full back wages.

(2.) When this petition was admitted on 3rd February, 2004, the execution of the Award was stayed, subject to the Petitioner depositing arrears of wages upto the date on which the First Respondent would complete the age of 60 years. An amount of Rs.92,000/- has been deposited as and by way of back wages for the period until the date on which the first Respondent would attain the age of 60 years.

(3.) The finding of fact that the first Respondent had actually worked with the employer for more than 240 days is not questioned before this Court. The Labour Court followed the Judgment of the Supreme Court in Workmen of American Express International Banking Corporation Vs. The Management of American Express International Banking Corporation (1985 I LL.J.539.). The expression "actually worked with the employer" under Section 25(B)(2)(b) has been held to mean the period during which the contract of employment has continued and the workman has been paid wages. The contract of employment had continued for over 240 days & the workman was paid wages for the period. Hence absent compliance with Section 25F, the retrenchment was unlawful. The Original order of appointment does not specify that the appointment was on probation. On the contrary, the appointment was made on a temporary basis. Subsequently, an effort was made by the employer to show that the earlier appointment was on probation. Such a unilateral alteration in the basis of appointment could not be valid. However, having regard to the view which would emerge in the subsequent part of this Judgment it would not be necessary to elaborate upon this aspect of the matter any further.