1. The short facts of the case are that the continued on the said post and thereafter, on 02.06.1995, his services came to be terminated and retrenchment compensation as required under section 25F was also paid. As the respondent was aggrieved by the aforesaid action, he raised the dispute under the Industrial Disputes Act (hereinafter referred to as “the Act” for the sake of convenience). Such dispute was referred to the Labour Court for adjudication being Reference (LCA) No.1667/95. The Labour Court at the conclusion of the reference passed the judgment and award dated 06.05.2003, whereby the reference was allowed and the petitioner Corporation was directed to absorb the workman in any department of the State Government like other employees of the Corporation with backwages from 02.06.1995 to 06.07.1998 within 30 days from the date of publication of the award. It is under these circumstances, the petitioner has approached to this Court by the present petition.
2. I have heard Mr.Mehta for Nanavati & Nanavati for the petitioner and Mr.Raval for the petitioner.
3. There is considerable force in the submission of the learned counsel for the petitioner that the reference made to the Labour Court for adjudication was the demand of reinstatement with full backwages. As against the same, the Labour Court has directed for absorption in the State Government that too in absence of the State Government being party to the said proceedings and therefore, the Labour Court has exceed the jurisdiction beyond the scope of the reference.
4. Mr.Raval, learned counsel appearing for the respondent is not in a position to show as to whether reference was made for directing the State Government to absorb the respondent workman or not.
5. In my view, the Labour Court has apparently exceeded the jurisdiction inasmuch as after termination, the demand was raised for reinstatement with full backwages by the respondent workman and such demand was referred to the Labour Court for adjudication. The Labour Court has found that there was breach of the provisions of section 25G of the Act since junior to the workman were retained in service and the respondent was terminated. Thereafter, it was required for the Labour Court to further proceed to consider the question of reinstatement. It is true that the Labour Court has recorded that the Corporation was closed and as the other employees of the Corporation were also absorbed, if they opted for it in the State Government, the Labour Court has passed the order for directing the absorption of the workman. But the Labour Court has committed error in not considering that the jurisdiction so vested to it is limited to the point as to whether the reinstatement deserves to be granted or not with the backwages or without backwages. It could not have directed the absorption of the workman in the State Government as it was not the reference made to it for adjudication. Even if it is considered that the Labour Court has power to grant incidental relief then also, such direction cannot be maintained because once the reinstatement is ordered, at the most, the respondent workman could be treated as an employee of the Corporation at the time of closure and thereafter, the benefit in the employment whatever were available to the other employees of the Corporation similarly situated, may be available to the respondent workman which may include the action for absorption or the terminal benefit or other benefits if available in accordance with law, but such could not have been determined by the Labour Court in a matter where the reference was limited to the question of reinstatement in service or not.
6. Under the circumstances, it appears that if the Labour Court having found that there is breach of section 25G of the Act, the Labour Court could have considered the matter for direction of reinstatement with or without backwages, but could not have directed for absorption of the respondent workman in the State Government. The aforesaid bar would operate with more vigour in view of the fact that in any case the State Government was not a party to he proceedings of the Reference before the Labour Court.
7. The learned counsel appearing for the the respondent submitted that if this Court finds that the Labour Court exceeded the jurisdiction in directing the State Government to absorb the respondent workman, the aspect of reinstatement with backwages may be considered by this Court and the award may be modified to that extent.
8. Whereas Mr. Mehta for the petitioner submitted that the Labour Court should reconsider the matter afresh on the aspect that whether the reinstatement should be granted or not and also on the aspect as to whether any backwages should awarded or not.
9. It appears that the services of the respondent workman came to be terminated as back as in the year 1995 and about 17 years' time has passed in the litigation. Further, it is not that the Labour Court has awarded backwages until the date of award, but has awarded backwages from the date of termination until the date of closure of the petitioner Corporation, i.e., 02.06.1995 to 06.07.1998. Further, on the aspect of breach of section 25G of the Act, no material is brought before the Labour Court nor even produced before this Court in the present proceedings which may require the Court to further examine the matter. Even if the retrenchment compensation is paid as per section 25F of the Act, but if junior to the workman are retained in service or continued in service, there would be noncompliance to the provisions of section 25G of the Act. Therefore, the Labour Court has rightly held that there was breach of section 25G of the Act. When the provisions of the Act and more particularly section 25G of the Act is breached, the Labour Court could direct for declaring the termination as illegal. On the aspect of backwages, no material is produced before the Labour Court showing that the workman was gainfully employed during the period of the proceedings before the Labour Court or even thereafter, nor any material is produced before this Court in the present proceedings. Therefore, in absence of the said material, the Labour Court could award the backwages until the date of closure of the Corporation which has been so ordered by the Labour Court.
10. Under these circumstances, it appears that when the matter is pending for such a long time, since 1995 after termination, no useful purpose would be served and on merits on the aspects of reinstatement with backwages from 02.06.1995 to 06.07.1998, is clear and hence no useful purpose would be served in remanding the matter to the Labour Court for passing the order of reinstatement with backwages from 02.06.1995 to 06.07.1998. The contention on behalf of the petitioner that let all the issues be considered afresh by the Labour Court, if entertained, would result into allowing the petitioner Corporation to reopen the evidence which was closed.
11. Hence, it is a fit case to exercise the power for modification of the award since by remanding the matter no useful purpose would be served.
12. In view of the aforesaid observations and discussions, the judgement and award of the Labour Court is set aside so far as directing the petitioner Corporation to absorb the respondent workman in any department of the State Government. However, it is directed that the petitioner shall reinstate the respondent workman in service as if he was the employee of the Corporation on the date when the Corporation was closed and consequently, he may be entitled to the benefit as may be available in law at par with other employees of the Corporation who are similarly situated. The direction of the Labour Court for payment of backwages from 02.06.1995 to 06.07.1998 is not interfered with.
13. The award passed by the Labour Court shall stand modified to the aforesaid extent. The modified award shall be complied within three months from the receipt of the order.
14. The petition is partly allowed to the aforesaid extent. Rule made absolute to the aforesaid extent. Considering the facts and circumstances, there shall be no order as to costs.
(JAYANT PATEL, J.) *bjoy