1. By way of this petition under Article 227 of the Constitution of India, petitioner Bharuch Nagar Palika has prayed for an appropriate writ, direction or order quashing and setting aside the impugned judgment and order dated 30.12.2003 passed by the Labour Court, Bharuch in Reference (LCB) No.255/1995, by which the Labour Court partly allowed the said reference by directing the petitioner to reinstate the respondents with 50% back wages, if the concerned workman has not attained the age of superannuation.
2. Concerned workmen were serving as part-time Water-server cum Peon and as & when the work was available, they were called for the duty for four hours and even they were paid wages from the contingency funds. That as the concerned workmen came to be relieved and/or were not called for duties with effect from 03.05.1985, concerned workmen raised industrial dispute which was referred to the concerned Labour Court. However, the same came to be dismissed for non-prosecution. That after a period of 10 years and on the basis of some subsequent award passed by the Labour Court in the year 1994, with respect to some other employees who according to the concerned workmen were similar to that of the concerned workman, again the concerned workmen raised the industrial dispute in the year 1995 i.e. after a period of 10 years from their alleged termination which was referred to the Labour Court, Bharuch and which was numbered as Reference (LCB) No.255/1995.
3. Relying upon the judgment and award passed by the Labour Court, in other cases / employees, the learned Labour Court by impugned judgment and award partly allowed the said reference by directing the petitioner to reinstate those workmen who did not attain the age of superannuation with 50% back wages and continuity of service.
Being aggrieved and dissatisfied with the impugned judgment and award passed by the Labour Court, Bharuch, petitioner has preferred the present Special Civil Application under Article 227 of the Constitution of India.
4. Ms.
Paurami Sheth, learned advocate appearing on behalf of the petitioner has vehemently submitted that as such there is no finding given by the Labour Court with respect to any breach committed by the petitioner under the provisions of the Industrial Disputes Act. Therefore, it is submitted that in absence of any finding given by the Labour Court with respect to any breach of the provisions of Industrial Disputes Act committed by the petitioner, the Labour Court ought not to have passed such an award directing the petitioner to reinstate the concerned workmen. It is submitted that even otherwise once, earlier the reference was dismissed for non-prosecution, the second reference for the same was not maintainable which was after a period of 10 years from the date of the alleged termination. It is further submitted that even there is no finding given by the Labour Court that the case of the concerned workmen are similar to that of other employees in whose favour some judgment and award has been passed by the Labour Court.
Petition is opposed by Shri Mathew, learned advocate appearing on behalf of the respondent workmen. It is submitted that the impugned judgment and award has been passed by the Labour Court on appreciation of evidence and considering the judgment and award passed by the Labour Court in case of other employees similarly situated and therefore, no illegality has been committed by the Labour Court while passing the impugned judgment and award. It is further submitted that as the earlier reference was dismissed for default and no decision was on merits, therefore, the second reference was maintainable. It is further submitted that as such there was no delay of 10 years as sought to be contended on behalf of the petitioner, as the first reference came to be dismissed for non-prosecution in the year 1994 and immediately having come to know about the same and having come to know about the judgment and award declared by the Labour Court in the case of other similarly situated employees, instead of filing a restoration application before the Labour Court, the concerned workmen being illiterate, again raised an industrial dispute which was referred to the Labour Court. Therefore, it is submitted that the contention on behalf of the petitioner that second reference was not maintainable, cannot be accepted and has no substance. Therefore, it is requested to dismiss the present Special Civil Application.
5. Heard learned advocates appearing on behalf of respective parties at length. At the outset, it is required to be noted that while passing the impugned judgment and award, the Labour Court has considered only one aspect i.e. with respect to passing of the judgment and award by the Labour Court in the case of other employees treating the same as similarly situated. As such there is no finding given by the learned Labour Court that the petitioner has committed breach of the provisions of the Industrial Disputes Act while terminating the services of the respondent. Nothing is on record how the case of the concerned workmen were similarly situated to that of those employees in whose favour some award came to be passed by the Labour Court. In absence of any such finding, the Labour Court was not justified in passing the impugned judgment and award solely considering some other judgment and award passed by the Labour Court with respect to some other employees. Under the circumstances, on that ground alone, the present petition deserves to be allowed and the impugned judgment and award passed by the Labour Court deserves to be quashed and set aside. In view of the above, the larger question whether the second reference was maintainable or not, is not decided by this Court and the same is kept open.
6. In view of the above and for the reasons stated above, petition succeeds. Impugned judgment and award passed by the Labour Court, Bharuch dated 30.12.2003 in Reference (LCB) No.255/1995 is hereby quashed and set aside. Rule is made absolute to the aforesaid extent. No costs.
(M.R.
Shah, J.) *menon Top