Mukesh Kumar vs Presiding Officer

S.S. Sudhalkar, J.

1.This writ petition has been filed by the workman challenging the award of the Labour Court dated 31.5.1999 (copy Annexure P/9) vide which the claim of the petitioner for reinstatement and back wages was rejected.

the contention of the petitioner is that he was employed as a Tubewell Operator on 25.6.1992 on a monthly salary of Rs. 1071/- per month and he was not allowed to come for duty w.e.f. 2.2.1993. He raised the dispute which was not referred to the Labour Court. The petitioner filed Civil Writ Petition No. 15758 of 1995 in this Court. The writ petition was allowed and the Labour Court was directed to take into consideration the averments made in the demand notice, after which the reference was made and the impugned award was passed thereafter. In the earlier writ petition, the defence taken by respondent No. 1 was that the petitioner had not completed 240 days of service. However, it was found by this Court that the reference was not sought on the ground that the petitioner had not completed 240 days and the allegation was of "Unfair Labour Practice."

In the Claim statement before the Labour Court, copy of which is produced at Annexure P/5, the petitioner has contended that respondent No. 1 is in the habit of terminating service of the employees before they could complete a period of 240 days and that the services were illegally terminated. It is further contended that even the posts of Tubewell Operators still existed with the respondent. Copy of the written statement has been produced at Annexure P/6. Regarding the post of Tubewell Operators still existing, it has been contended that many tube-wells are remaining out order. However, it is not shown by the respondents that the posts were not available and hence the termination was made. No cogent reason has been given in the written statement for terminating the service of the petitioner. The Labour Court rejected the contention of the petitioner because he had not completed 240 days. It came to the conclusion that the working days of petitioner were 223 days. When if it is not the case of the petitioner that he had not completed 240 days, actually his working days were less by 17 days for the completion of period of 240 days. When there is the question of unfair labour practice, the non-completion of 240 days of service will not come in the way in granting the relief.

Learned counsel for the petitioner has relied on the case of The Kapurtltala Central Co-operative Bank Ltd., Kapurthala v. The Presiding Officer, Labour Court, Jullundur and others reported as 1984 Lab. I.C. 974. It has been held therein by the D.B. of this Court that when there was termination of service of employees on me verge of their completing 240 days of service with notional breaks and other persons employed in their place, the action of the employer is unfair labour practice and that ordering of re- instatement was justified. Learned counsel for the petitioner has also drawn our attention to Item No. 5(b) of the Full Schedule to the Act. This is as under :-

"5. To discharge or dismiss workmen

b) not in good faith, but in the colourable exercise of the employer''s rights."

Counsel for the respondent argued that no issue was framed regarding the Unfair Labour Practice and, therefore, there was no chance for the respondent to contest the case. However, the written statement was clear and the respondent was also a party in the earlier writ petition in which it was found that it was not a case of non-completion of 240 days but was a case of "Unfair labour practice". Therefore, it cannot be said that respondent No. 1 had no opportunity to meet the case of the petitioner. Moreover, in such cases, it will be hazardous to rely on technicalities as argued by learned counsel for the respondent.

Regarding back wages, it is stated that the petitioner was getting Rs. 1017/- from the respondent No. 1 in the year 1992 as pay. The petitioner has stated in his disposition that he is earning Rs. 1000-1200/- per month. In view of the above reasons, we do not award any back wages.

As a result, this writ petition is partly allowed. The petitioner is ordered to be reinstated with continuity of service but without back wages. This order implemented with three months from today.

A copy of this order by given dasti to learned counsel for the parties on usual payment.

Petition partly allowed.