1) The petitioner has challenged the judgment and award dated 1st March 1999 passed by the Presiding Officer of the Labour Court, Kalol, in Reference (LCK) No.3 of 1980.
2) Facts are as follows:-
2.1) The respondent herein (hereinafter to be referred to as “the workman”) was engaged as a wireman by one Mehsana Taluka Cotton Sell Ginning & Pressing Society (hereinafter to be referred to as “the employer”). The said employer decided to shutdown the business and sell all the properties including the land bearing Survey No.490 paiki 13 acre and 25 gunthas of Village: Nagalpur, Taluka: Mehsana along with superstructure and plant and machinery, situated on such land. By passing two separate resolutions, the employer decided to terminate the services of all the workmen including the present respondent. The respondent is covered under resolution dated 9th April 1977.
3) Above mentioned land with superstructure and plant and machinery was sold by the employer to the present petitioner-Gujarat State Co-operative Marketing Federation Limited by a registered sale deed dated 20th April 1978. Entire property was sold for a total consideration of Rs.20,50,904/-
4) The respondent-workman challenged his termination by raising industrial dispute before the Labour Court. In such reference, the present petitioner was joined as a party. The Labour Court held that the termination was illegal. The contention of the petitioner that the workman was never engaged or employed by the petitioner, was not accepted. In the alternative, it was held that if the respondent was employee of the original employer, by virtue of succession of the business of such employer by the present petitioner, the petitioner was required to continue the engagement of the workman and any illegal termination would be liable to be set aside. Resultantly, the learned judge, after quashing the termination, directed reinstatement of the workman by the present petitioner with 30% back wages.
5) When this petition was taken up for admission hearing, the learned Single Judge of this Court, on 25th October 1999, passed following order:-
“Heard the learned advocates for the respective parties.
2. Rule. The petitioner challenges the judgment and award dated 1st March, 1999 passed by the learned Labour Judge, Kalol in Reference (LCK) No. 3 of 1980 directing the petitioner to reinstate the respondent-workman and to pay him 30% of the backwages. It is undisputed that the Mehsana Taluka Cotton Ginning & Pressing Society, the predecessor in title of the petitioner herein, appointed respondent-workman as a wireman for a monthly pay of Rs.250/=, on 14th February, 1977. Prima facie, it does not appear that after the sale of the concerned Unit to the present petitioner, the service of the workman was continued. It is also not disputed that the management of the concerned Unit has been taken over by the present petitioner on 20th April, 1978. It is the categorical case of the workman that he had not been paid his salary since 20th April, 1978. The petitioner has also asserted that the workman's service was not continued after the change of management. In absence of any other evidence, the inference would be against the workman's continuing under the present management. It is an admitted position that the workman was working as a free-lance wireman and was earning more than Rs. 500/= a month. In that view of the matter, the workman can be said to be gainfully employed. The workman, therefore, cannot claim benefit of Section 17-B of the Industrial Disputes Act, 1947. Therefore, interim relief in terms of paragraph 6(D).”
6) I am informed that this interim order was challenged by filing Letters Patent Appeal No.1383 of 2003. Such appeal was allowed by an order dated 20th July 2010. Despite such order, counsel stated that the workman has not come forward to claim any such benefit by filing affidavit of not being gainfully employed.
7) Today, when the matter was taken up for hearing, learned counsel Mr.G.M.Joshi for the petitioner was present. None appeared for the respondent.
8) Having perused the documents on record with the assistance of the learned counsel for the petitioner, I find that the Labour Court erred in interpreting the sale deed between the original employer and the present petitioner. I have perused the sale deed minutely. I find that the sale was of the property in question, namely, the land with superstructure and plant and machinery. There was no intention to transfer the business. In essence, there was no succession of the business by the petitioner from the original employer. The Labour Court thus, committed grave error in appreciating the terms of the agreement. Even if the case of the workman was that he was freshly engaged by the petitioner, he did not produce enough evidence to hold that after such engagement, his services were terminated in breach of the provisions of section 25F of the Industrial Disputes Act. In that view of the matter, award of the Labour Court is set aside. Rule is made absolute accordingly with no order as to costs.
(AKIL KURESHI,J.) Vahid