Shori Stay Home Centre and Another vs Man Mohan Saxena and Another

K. M. Agarwal, J.

By this petition under Article 220 of the Constitution, the petitioner wants the impugned order dated 18-1-1990 (Annexure P-2) of the Labour Court to be quashed by a writ of certiorari.

The deceased respondent no. 1 Smt. Usha Saxena was in the employ-meat of the petitioner as a Social Case Worker in pursuance of the appointment letter dated 16-9-1982 (Annexure P-3). Her services were terminated by order dated 6-2-1987 (Annexure P-12). Being aggrieved, she raised an industrial dispute, which was referred to the Labour Court for adjudication in accordance With Section 10 (1) (c) of the Industrial Disputes Act, 1947, (in short, the -Act"). After notice and hearing to the petitioner, the labour Court was pleased to pass its impugned order directing reinstatement of the deceased respondent no, i with 50 per cent back wages from the date of termination to the date of reinstatement. Being aggrieved, the petitioner has filed this petition under Article 226 of the Constitution for the said relief.

The learned counsel for the petitioner argued that Short Stay Homes were outside the purview of the term ''''industry" as defined in amended Section 2 (j) of the Act and, therefore, the impugned order of the Labour Court was without jurisdiction. The argument deserves to be rejected. Section 1 (2) of the Central Amending Act No. 46 of 1982 provided that:

It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

By Section 2 (c) of the Amending Act, clause (j) of Section 2 of the Original Act, denning the term "industry", was substituted. By Notification No. S.O. 606 (R), dated 21-8-1984, published in the Gazette of India, Extra-Ordinary Part If, Section i (if), dated 21-8-1984, page 2; clauses (a), (b) and (d) to (k) of Section 2 of the Amending Act No. 46/1982 were brought into force from 21-8-1984 Clause (c) of Section 2 of the Amending Act was intentionally excluded from being mentioned in the said notification. Accordingly the petitioner cannot rely on the provisions of the amended clause (j) of Section 2, as they were not brought into force. So for as the inclusion of the petitioner within the meaning of the term "industry" as deined in original Section 2 (jj is concerned, there was no dispute that in the light of the decision of the Supreme Court in Bangalore Water Supply v, A. Rajappa AIR 1978 SC 348, it would come within the definition of "industry" and accordingly within the ambit of Labour Court jurisdiction.

It was next argued that the deceased respondent no. 1 being a teacher was not a workman and, therefore, the Labour Court had no jurisdiction to adjudicate upon the dispute. This argument also deserves to be rejected. Firstly, such a plea was not raised before the Labour Court. Secondly, there was absolutely no material on record to show that social case worker was essentially to work as a teacher. On the contrary, the evidence of the deceased respondent no. 1 filed as Annexure P-26 would show that as a social case worker, she was required to write case history of girls brought in the Short Stay Home and to take them to the Courts in connection with the hearings of their cases

Realising that the termination order could not be said to be an order of retrenchment and that the conditions precedent for retrenchment were not filfilled by the petitioner, the learned counsel for the petitioner did not pursue his contention based on Section 25-F of the Act.

In proceedings under Article 226 of the Constitution, the just or unjust nature of the termination order cannot be examined as an appellate Court, so long as the impugned order of the Labour Court is not shown to be per-verse. On the materials brought on record, the impugned order could not be demonstrated to be perverse and, therefore, it calls for no interference on the ground of perversity.

The respondent no. 1 Smt. Usha Saxena expired on 19-11-1990 during the pendency of this petition. The direction for her reinstatement has, therefore, become infructuous. The legal representative of Smt. Usha Saxena was brought on record in pursuance of this Court''s order dated 8-1-1591. He may now be entitled to receive 50 per cent back wages of the deceased from the date of termination of her services to the date of her death. It appears from the order sheet dated 19-7-1990 that a sum of Rs. 3,575/- was deposited by the petitioner towares the 50% back wages of the deceased Smt. Usha Saxena, which was withdrawn by her from the Court. Accordingly the petitioner shall be entitled to adjustment of this amount against the claim of the deceased Smt. Usha Saxena for back wages as per impugned order of the Labour Court.

For the foregoing reasons and subject to the observations aforesaid, this petition fails and it is hereby dismissed. However, in the circumstances of the case, we leave the parties to bear their costs as incurred. The outstanding amount of security, if any, shall be refunded to the petitioner.