1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR WRIT PETITION NO. 4579/2008 (Vidarbha Irrigation Development Corporation and another vs. Damodar Ramkrishna Naikwade and another) ====================================== Shri J.T.Gilda, Advocate, for the petitioner. CORAM : Smt. Vasanti A. Naik, J. DATE : 11th NOVEMBER, 2008 CIVIL APPLICATION NO. 1205/2007 1. By this petition, the petitioner impugns the judgment passed by the First Labour Court, Nagpur, in Complaint ULPA No. 317/93 on 13.8.2002, allowing the complaint filed by the respondent, as also that of the Industrial Court in Revision ULPA No. 401/2002 on 14.7.2005, upholding the judgment passed by the Labour Court, so far as it directed the reinstatement of the respondent in service with continuity of service. In revision, the Industrial Court, Nagpur, had allowed the revision, so far as the grant of backwages to the respondent was concerned. 2. The respondent claimed to have been working with the petitioner since the year 1983 as and when his services were required and since the year 1986 he was continuously working with the petitioner. It is the case of the respondent that the services of the 2 respondent were terminated without complying with the mandatory provisions of Section 25(F) and 25(G) of the Industrial Disputes Act. According to the respondent, the respondent was not paid retrenchment compensation prior to his retrenchment and neither the seniority list was maintained, nor was it published in accordance with the provisions of Industrial Disputes Act. 3. The petitioner filed the written statement and denied that the petitioner had engaged in unfair labour practice under the Act of 1971. It was the case of the petitioner that in view of the Government instructions in order dated 10.05.1991, the daily wage labourers were terminated and the services of the respondent were also terminated in view of the order dated 10.5.1991. It was also stated in the written statement that the respondent was paid an amount of Rs.1,944/- on 18.5.1993 and the balance of Rs. 804/- was sent on his address by money order and the total compensation of Rs. 2,748/- was paid to the respondent. It was also stated in the written statement that there was no non-compliance of Section 25(G) of the Act as the petitioner had only engaged the services of 11 industrial labourers who were senior in service than the respondent and no person junior to the respondent was retained in 3 service. The petitioner sought for the dismissal of the complaint. 4. The Labour Court by the impugned judgment dated 13.08.2002 allowed the complaint by declaring that the petitioner had indulged in unfair labour practice by terminating the services of the respondent and the petitioners were further directed to reinstate the respondent in service with continuity of service and backwages from 25.5.1993 till 4.7.1997. The labour Court further held that there was non compliance of the provisions of Section 25(F) and 25(G) of the I.D.Act. The direction issued by the Labour Court for reinstatement with continuity of service was upheld by the Industrial Court, Nagpur, in a revision filed by the petitioner. The revision application was, however, allowed so far as the grant of back-wages was concerned. 5. It is not in dispute that in view of an order passed by the Labour Court on 03.08.1996 in the earlier round of litigation, the respondent was reinstated in service by the petitioner and the respondent is working with the petitioner since 7.4.1997. 6. Shri J.T.Gilda, learned counsel for the 4 petitioner submitted that the judgments passed by both the Courts are liable to be set aside on the ground that the respondent had failed to aver and state the jurisdictional fact in the complaint filed by them before the Labour Court. The learned counsel for the petitioner submitted that the respondent had failed to state that the petitioner was an 'industry' and the respondent was 'workman' of the petitioner. The learned counsel for the petitioner relied on the decision reported in 2006 (5) Mh.L.J. 838 to substantiate his submission that the complaint was not tenable before the court in absence of an assertion that the establishment where the respondent was appointed was an 'industry'. The learned counsel for the petitioner submitted that the Labour Court had no jurisdiction to decide the complaint and hence this question can be agitated by the petitioner before this Court for the first time as it goes to the root of the matter. The learned counsel for the petitioner then submitted that there was compliance with the provisions of Section 25(F) of the I.D.Act as the petitioner had sent the retrenchment compensation by the money order and it was not necessary for the petitioner to prove that the respondent received the retrenchment compensation prior to the date of his retrenchment /termination. The learned counsel for the petitioner relied on the decision reported in 5 2003(4) Mh.L.J. 214 to submit that it is permissible for the employer to pay the retrenchment compensation before the retrenchment and it is not necessary to send it along with the notice. 7. I have considered the submissions made on behalf of the petitioner and have also perused both the impugned orders, as also the judgments relied on by the counsel for the petitioner. In this case, it cannot be said that the complaint filed by the respondent was not tenable because the respondent had not asserted in the complaint that the petitioners were an 'industry' and the respondent was a 'workman'. Though in terms it was not stated by the respondent in the complaint that the petitioners were an 'industry' and the respondent was a 'workman', the pleadings in the complaint reflected so. It is necessary to consider the written statement of the petitioners wherein the petitioners have indirectly admitted that the respondent is an 'industrial labourer' and the petitioners are an 'industry'. It is stated in the written statement that the action of retrenchment has been taken within the framework of law and the petitioners have engaged the services of other 11 “industrial labourers”, who are senior in the service than the respondent. In fact, it is stated in the written statement that there is compliance of the provisions of 6 Section 25(E) and Section 25(G) of the I.D. Act and the petitioners have tendered an amount of Rs.2,748/- to the respondent towards retrenchment compensation. It is also stated in the written statement that the amount of Rs.2,748/- has been paid as per the provisions of the I.D.Act. Hence, this is not a case where petitioners have not raised a question of jurisdiction, but it is a case where the petitioners have admitted that the petitioners are an 'industry' and the provisions of I.D. Act are complied by the petitioner before the retrenching/ terminating the services of the respondent. the judgment reported in 2006(5) Mh.L.J. 838 and relied on by the counsel for the petitioner would, therefore, not apply in the facts of the give case. 8. Both the courts have recorded a categorical finding that the retrenchment compensation was not paid to the respondent prior to the date of his retrenchment. It was also observed by the Labour Court that the best evidence was not produced by the petitioners before the Labour Court to show that the respondent was the juniormost employee and was rightly retrenched. The Labour Court has also noticed the admission of the witness of the petitioners in the cross examination that after 1986, the respondent was in continuous service and therefore, the muster 7 roll was not filed on record. The Court observed and rightly so that the petitioners had not produced the seniority list to show that the termination of the respondent was in accordance with the principle of “last come first go” as envisaged in Section 25(G) of the I.D.Act and hence it found that there was non compliance of Section 25(G) of the I.D. Act. The Labour Court has observed that the respondent was paid less retrenchment compensation though he was entitled to higher sum. The findings recorded by the Labour Court on the non-compliance of Section 25(E) and 25(G) of the I.D. Act were confirmed by the Industrial Court and the Industrial Court further recorded a finding that the retrenchment was effected by an order dated 14.5.1993 w.e.f. 25.5.1993 and there was absence of clear one month's notice. Since the respondent was continuously working for more than 7 years, the payment of Rs. 2,,748/- towards the retrenchment compensation was also not proper and the Industrial Court further observed that two alleged money order receipts which were placed on record did not indicate that the amount was received by the respondent prior to the date of his retrenchment. According to the Industrial Court, the money order receipt indicated the date to be 24.06.1993 and the retrenchment was to take effect from 25.5.1993. 8 9. The findings recorded by the Labour Court were rightly upheld by the Industrial Court so far as non compliance of the provisions of Section 25(F) and 25(G) of the I.D. Act was concerned. No fault can be found with the judgment passed by both the Courts. The judgment do not suffer from any jurisdictional error. 10. For the reasons aforesaid, the writ petition is dismissed with no order as to costs. JUDGE Rvjalit