1. By way of this petition, the petitioner has prayed to quash and set aside the judgment and award of the Labour Court, Kalol, rendered in Reference (L.C.K.) No.206 of 1999, dated 26.04.2004, whereby the Labour Court partly allowed the reference of the petitioner.
2. The brief facts of the case are that the respondent was working with the petitioner as ‘Supervisor’ in the maintenance department. Since, the work in the maintenance department was stopped, the services of the respondent workman were came to be terminated. The the respondent workman, hence, raised an industrial dispute in which the Labour Court, Kalol, passed the impugned judgment and award. Hence, the present petition.
3. Heard learned Counsel for the parties and perused the material on record. It is an admitted position that the services of the respondent workman were terminated vide order dated 15.04.1999. From the documents produced on the record as well as the oral evidence of the respondent workman and the witness of the petitioner, Kanubhai Patel, it transpires that the respondent workman was working as ‘Supervisor’ in Craft Department in the first shift and that there were different supervisors for different shifts, and therefore, the case put forward by the petitioner that the respondent workman was the only supervisor and that on closure of the concerned Department his services were terminated, was rightly not believed by the Labour Court. It may be noted that the petitioner did not led any evidence, much less any documentary evidence to show that the respondent workman was the only Supervisor, whereas the respondent workman proved his case by leading evidence that beside him other persons were also there, who were working as supervisor, in different shifts.
4. Insofar as the aspect of compliance with Section 25(F) of the act is concerned, the case of the petitioner is that they had sent a demand draft for an amount of Rs.19,000/-, which was duly accepted and encashed by the respondent workman, and hence, it is argued that the question of compliance with Section 25F of the Industrial Disputes Act, 1947, do not arise. It is not in dispute that the respondent workman had accepted the aforesaid demand draft and had encashed the same, but, at the same time, if, the contents of the letter dated 16.04.1999, Exhibit- 16, with which the petitioner had sent the aforesaid demand draft being Exhibit Nos. 17 is perused, it becomes clear that the petitioner, while issuing the said demand draft, has not given any brake up of the amount and it is only mentioned therein that a demand draft of Rs.19,000/- is being sent towards the payment of gratuity, retrenchment compensation etc.. It is well settled that, if, an employer desires to retrench any of his or her employees, in compliance of Section 25 of the Industrial Disputes Act, he has to pay said amount after giving detailed brake up under different heads, such as notice pay, retrenchment compensation, gratuity, which is, admittedly, not done in the case on hand. I am, therefore, of the opinion that the Labour Court rightly held that the petitioner committed breach of provisions of Section 25(F) of the Industrial Disputes Act. It may also be noted that before retrenching the respondent workman, the petitioner has not followed the principle of ‘First Come, Last Go’. In other words, there is also apparent breach of the provision of Section 25(G). It may also be noted that the petitioner has produced no evidence to show that they had taken any permission for closing the concerned department in which the respondent workman was working as supervisor, and therefore, on that count also the action of the petitioner cannot be sustained in the eye of law, and hence, the Labour Court rightly held that the retrenchment of the respondent workman done by the petitioner is illegal.
5. So far as the aspect of backwages is concerned, the case of the respondent workman was that after termination of his service, though, he had tried to get another job he could not find the one. However, the petitioner did not led any evidence to substantiate his say. Even otherwise, in view of the fact that the petitioner was working with the petitioner as ‘Supervisor’, it cannot be believed that he could not find any job. Nevertheless, the fact remains that the respondent has actually not worked with the petitioner from the date of termination of his services to till date. Even otherwise, in view of the fact that the pending this petition, the respondent workman did not press the application for benefits under Section 17(B) of the Industrial Disputes Act, the Labour Court erred in granting back wages.
6. In the result, this petition is partly ALLOWED. The petitioner is directed to reinstate the respondent workman on the same or equivalent post within a period of ONE MONTH from the date of receipt of this order and while doing so, the petitioner will protect the pay of the respondent workman. However, the respondent workman will not be entitled to get any amount towards backwages. The judgment and award of the Labour Court, Kalol, rendered in Reference (L.C.K.) No.206 of 1999, dated 26.04.2004, stands MODIFIED to the aforesaid extent. Rule is made absolute, accordingly. No order as to costs.
UMESH (K.S.JHAVERI, J.)