Gujarat High Court
Excel Crop Care Ltd vs Rameshbhai on 7 February, 2013
Author: K.S.Jhaveri
Bench: Ks Jhaveri
EXCEL CROP CARE LTD.....Petitioner(s)V/SRAMESHBHAI DHARAMSHIBHAI....Respondent(s) C/SCA/2473/2005 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 2473 of 2005 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE KS JHAVERI ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ EXCEL CROP CARE LTD.....Petitioner(s) Versus RAMESHBHAI DHARAMSHIBHAI....Respondent(s) ================================================================ Appearance: MR MANISH R BHATT, ADVOCATE for the Petitioner(s) No. 1 MR TR MISHRA, ADVOCATE for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE KS JHAVERI Date : 07/02/2013 ORAL JUDGMENT
1.0 This petition is directed against the judgement and award dated 04.02.2005 passed by the learned Presiding Officer, Labour Court, Bhavnagar in Reference ( L.C.B.) No. 146 of 1987 whereby the reference of the respondent came to be partly allowed by directing the petitioner to reinstate the respondent with continuity of service on his original post without backwages.
2.0 The facts of the case in brief are that in February 1983, during the course of erection of plant, the respondent was engaged on casual basis as Welder. On completion of the erection work, since services of Welder were not required, further employment was not given to the respondent on 10.09.1983. In the year 1984, the respondent initiated proceedings under the Industrial Disputes Act and a Reference came to be made for adjudication by the Labour Court. After adjudicating the matter, the Labour Court passed the award as stated hereinabove. Hence, this petition.
3.0 Learned advocate appearing for the petitioner contended that there is no breach of Sections 25(G) and 25(H) of the Industrial Disputes Act. The Labour Court without any basis, has come to the conclusion that there is breach of Section 25(G) and 25(H) of the Industrial Disputes Act.
3.1 Learned advocate appearing for the petitioner submitted that the Labour Court ought to have appreciated that even for application of the provisions of Section 25G, two conditions are required to be fulfilled, inasmuch as it operates only within the establishment in which retrenchment is to be made and to a particular category to which the retrenched workman belonged. Admittedly, the respondent workman was rendering casual services as Welder. Welding is not a continuous activity in so far as the petitioner s establishment was concerned since the company is engaged in manufacturing of Industrial and Agro Chemicals. In view of the clear provision of Section 25G and its requirement, the said provisions could not be applied .
3.2 Learned advocate appearing for the petitioner further contended that the provisions of Section 25H would not be applicable to the facts of the present case inasmuch as in the first instance the respondent was not retrenched and secondly there was no evidence on record to show that the petitioner had employed workman in similar category or for similar work. As per the language of Section 25H of the Act, opportunity to the retrenched workmen to offer themselves for re-employment would arise only if that particular nature of work is available.
3.3 Learned advocate appearing for the petitioner further contended that the Labour Court ought to have appreciated that even as per the say of the respondent he was working on casual basis as a Welder. In view of the evidence available on record, the Labour Court ought to have appreciated that on completion of the specified work there was no question of continuing the service of the respondent. The conditions of service and non-continuation after the work was completed would therefore, not come within the purview of retrenchment as per the provisions of section 2(oo) of the Act. He further submitted that the respondent was employed on casual basis as Welder and that work having come to an end, it would be covered under clause (bb) of Section 2(oo) of the Act.
4.0 Mr. Mishra, learned advocate appearing for the respondent supported the judgement and award of the Labour Court and contended that the work which was performed by the respondent was on contract basis. Hence, the award of the Labour Court is just and proper.
5.0 Heard learned advocates for the parties and perused the documents on record. It is found that the respondent was working on casual basis as a Welder and on completion of the specified work there was no question of continuing the service of the respondent. The respondent was employed on casual basis as Welder and that work having come to an end, it would be covered under clause (bb) of Section 2(oo) of the Act. From the record it is found that the respondent had worked for only 163 days. In that view of the matter, the Labour Court has rightly held that there is no breach of Section 25(F) of the Industrial Disputes Act. One Shri Prashantbhai Nanabhai Bhatt who is the witness of the petitioner at Exh. 19, stated that seniority list was not published when the respondent workman was relieved/terminated and the same is accepted by the respondent. Further it was stated at Exh. 19 that respondent was doing welding work. He was given work of Welding for erection of the plant of the petitioner. The work has come to an end. Further it was stated that the work which was done by the respondent was not continued. The juniors of the respondent workman are not kept for the said work. Further there is no recruitment of any person in place of the respondent. Hence, in view of the above deposition it is found that there is no breach of Sections 25(G) and 25(H) of the Industrial Disputes Act. Further, the respondent was working on casual basis as a Welder. On completion of the specified work the services of the respondent are not continued. The respondent was not issued any appointment letter for any work. Hence, the award of the Labour Court is required to be quashed and set aside.
6.0 However, in view of the fact that the respondent was working in the establishment and other attending circumstances it would be in the interest of justice to pay him a lumpsum compensation of Rs. 25000/- to the respondent. Accordingly, the award of the Labour Court is substituted. The petitioner shall pay an amount of Rs. 25000/- to the respondent as compensation which will be treated as full and final settlement between the parties. Rule is made absolute to the aforesaid extent.
(K.S.JHAVERI, J.) niru* Page 6 of 6