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Ramdayal S/O Sukhram Gudewar Vs. the Principal, Industrial Training Institute - Court Judgment

SooperKanoon Citation

Subject

Labour and Industrial

Court

Mumbai High Court

Decided On

Case Number

Writ Petition No. 249 of 2005

Judge

Reported in

2009(1)BomCR893; [2008(119)FLR876]

Appellant

Ramdayal S/O Sukhram Gudewar

Respondent

The Principal, Industrial Training Institute

Appellant Advocate

I.N. Choudhari, Adv.

Respondent Advocate

T.R. Kankale, A.G.P.

Excerpt:


.....lecturers and full-time teachers for purpose of granting retrial benefits cannot be said to be unconstitutional or bad in law -- consumer protection act, 1986 -- article 16; right to pension held, it is true that the pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer. however, the right of pension is always subject to the rules. it is not inherent in the employment. though pension is a payment for a past service rendered and it is a social welfare measure, but it is well settled that an employee is not entitled to pension de hors the rules. in the instant case the government resolution dated 21.7.1983 held that the said pension scheme is only applicable to the employees covered therein. a part time teacher, unfortunately, is not covered by the said scheme and, therefore, not entitled. retirement benefit; differentiation between full time teachers and part-time lecturers government resolution providing for retrial benefits to full-time teaching staff part-time lecturer were not entitled to said benefit held, it is true that the pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer...........sought to be served on him on 1.8.2000, that amount of compensation was also kept ready, learned member of industrial court noticed that if these facts were true, respondent did not examine its accountant. according to him, realising the difficulties which the government faces, industrial court found it proper to give one more opportunity respondent to lead proper evidence and this court should not interfere in writ jurisdiction. 3. in the alternate learned a.g.p. relies upon judgment reported in : (2008)illj855sc [and : (2006)iiillj492sc [reserve bank of india v. gopinath sharma and anr.] to urge that daily wager has no right to post and his termination does not amount to retrenchment and as such even if there is technical valuation of section 25-f that by itself is not sufficient to grant employee the relief of reinstatement with continuity and back wages. 4. in facts before me it is not in dispute that the petitioner was appointed on daily wages as per order dated 1.4.1998 and he continued in service till his retrenchment on 1.8.2000. petitioner has stated that though the order of appointment is dated 4.1.1998 he was in service from 1.9.1997. thus the service period of.....

Judgment:


B.P. Dharmadhikari, J.

1. Heard Advocate Choudhari for petitioner and learned A.G.P. for respondents.

Only argument of Advocate Choudhari is that though Industrial Court in impugned order dated 20.9.2004 found everything in favour of petitioner, it has remanded the matter back to Labour Court to enable respondent/ employer to fill in lacuna. He points out that Labour Court has in terms found that Section 25F was complied with and therefore dismissed ULP Complaint filed by the petitioner. Industrial Court did not agree with those findings and found the story of employer about compliance with provisions of Section 25-F to be incorrect. Still it has remanded the matter back.

2. Learned A.G.P. in reply states that considering the position of respondent as Government Officer, the Industrial Court found it proper to enable to government to place necessary material before Labour Court. He contends that it cannot be ignored that petitioner was Daily Wager and in view of specific defence that retrenchment notice was prepared and was sought to be served on him on 1.8.2000, that amount of compensation was also kept ready, learned Member of Industrial Court noticed that if these facts were true, respondent did not examine its Accountant. According to him, realising the difficulties which the government faces, Industrial Court found it proper to give one more opportunity respondent to lead proper evidence and this Court should not interfere in writ jurisdiction.

3. In the alternate learned A.G.P. relies upon Judgment reported in : (2008)ILLJ855SC [and : (2006)IIILLJ492SC [Reserve Bank of India v. Gopinath Sharma and Anr.] to urge that daily wager has no right to post and his termination does not amount to retrenchment and as such even if there is technical valuation of Section 25-F that by itself is not sufficient to grant employee the relief of reinstatement with continuity and back wages.

4. In facts before me it is not in dispute that the petitioner was appointed on daily wages as per order dated 1.4.1998 and he continued in service till his retrenchment on 1.8.2000. Petitioner has stated that though the order of appointment is dated 4.1.1998 he was in service from 1.9.1997. Thus the service period of petitioner even as per his contention is from 1.9.1997 to 4.9.2000 i.e. date on which he received retrenchment order. Said period is of ab out 3 years. In view of the judgment of Hon. Apex Court in the case of Government of Andhra Pradesh v. K. Brahmanandam and Ors. reported in : AIR2008SC3170 and also Telephone District Manager and Ors. v. Keshab Deb 2008 L. I. C. 2615 and Jaipur Development Authority v. Ram Sahai and Anr. 2006 AIR SCW 5963. it is apparent that termination of services of a daily wager does not amount to retrenchment and for violation of Section 25-F in such circumstances, the employee can not be given benefit of reinstatement with continuity and back-wages. Hon. Apex Court has held that in such circumstances employee is entitled to benefit of compensation only. Therefore, even if argument of Mr. Choudhari that Industrial Could not have permitted respondents to fill in lacuna is accepted, I find that at the end of the trial in ULP complaint the petitioner becomes entitled for grant of compensation only. Considering the fact that his daily wage was Rs. 45/-roughly, it is clear that he was not earning more than Rs. 1400/-per month. He has put in about 3 years of service and hence I find it proper to give him salary of one year as compensation. Accordingly the petitioner be given compensation of Rs. 15000/-.

5. In view of this position, the order of Industrial Court remanding the matter is quashed and set aside. Writ Petition is partly allowed and petitioner is held entitled to and granted compensation of Rs. 15000/-. The amount be paid to him over and above retrenchment compensation and notice pay if not already received by him. Entire i.e. total amount be paid by 31.3.2009 and if it is not so paid, he shall be entitled to recover the amount due to him with 7% interest from today till realization. Rule accordingly. No costs.




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