Full Judgment Text
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CASE NO.:
Appeal (civil) 1389 of 2001
PETITIONER:
Bihar Caustic & Chemicals Ltd.
RESPONDENT:
Kripa Pandey
DATE OF JUDGMENT: 18/01/2008
BENCH:
Dr. ARIJIT PASAYAT & P. SATHASIVAM
JUDGMENT:
J U D G M E N T
Dr. ARIJIT PASAYAT, J.
1. Challenge in this appeal is to the judgment of the
Division Bench of the Patna High Court dismissing the Letters
Patent Appeal filed by the appellant. Challenge in the Letters
Patent Appeal was to the judgment of the learned Single Judge
of the said High Court. Before the High Court challenge was
to the award of the Labour Court, Ranchi in Reference Case
No.41/85. The respondent had raised a dispute, inter alia,
alleging illegal termination. According to him he was working
in the appellant\022s factory continuously from 1.8.1983 to
12.8.1984 and he was removed from service on 21.9.1984
without any reason. Following dispute was referred to the
Labour Court for adjudication:
\023Whether the termination of services of Shri
Kripa Pandey, Driver by the management is
proper and justified? If not, whether he is
entitled to reinstatement and/or any other
relief.\024
2. The aforesaid reference was made by notification dated
1.11.1985. Stand of the appellant before the Labour Court
was that during the period from 1981 to 1984 when the
factory of the appellant was under construction it had engaged
several contractors including one M/s Mishra Brothers for the
purpose of various works for construction of the factory.
During the aforesaid period the said Contractor who was
authorized to engage contract labour under the provisions of
the Contract Labour (Regulation and Abolition) Act, 1970 (for
short\022 \021Contract Labour Act\022) by licence deed dated 13.3.1982
engaged the respondent as a tractor driver. It was the case of
the appellant that at no point of time respondent was
employee of the appellant and there was no relationship of
employer and employee between them. No appointment letter
was ever issued to the respondent by the appellant. The
respondent used to get salary from the Contractor. After
construction of the work was completed in 1984, the appellant
did not require services of the contractor and in turn the
contractor did not require the services of the employees
including respondent engaged by it.
3. In the written statement filed before the Labour Court the
above plea was taken and it was stated that the respondent
was not a workman within the meaning of Section 2(s) of the
Industrial Disputes Act, 1947 (in short \021the Act\022) and,
therefore, the reference as made was maintainable in law.
Before the Labour Court the contractor was also examined and
he stated that the respondent was working under his contract
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and he was employed by him and, therefore, he paid the wages
to him. In the gate pass it was clearly mentioned that he was
the employee of the Contractor.
4. The Labour Court held that the termination was illegal
and unjustified and the respondent was entitled to
reinstatement and back wages from the date of the institution
of claim i.e. 28.11.1985.
5. Writ petition was filed before the High Court and as noted
above, it was dismissed by the learned Single Judge. The
Division Bench dismissed the Letters Patent Appeal.
6. In support of the appeal, learned counsel for the
appellant submitted that no finding on the plea taken by the
appellant regarding the respondent being employed by the
contractor has been recorded and the plea has not been
considered. Additionally, after this Court granted leave and the
stay was restricted to payment of back wages, respondent was
reinstated on 21.3.2001 and superannuated on 6.3.2006.
According to his own case, he was getting Rs.400/- p.m. It is
unbelievable that he was not employed elsewhere. Further,
during the pendency of the writ petition and Letters Patent
Appeal, payment in terms of Section 17-B was being made.
Therefore, it is submitted that direction of back wages is not in
order.
7. Learned counsel for the respondent on the other hand
submitted that on the plea taken by the appellant that
respondent was gainfully employed, an inquiry was conducted
and it was concluded that the respondent was not gainfully
employed.
8. Few dates need to be noted.
Date of reference is 1.11.1985 and the case was registered by
Labour Court on 20.11.1985. The award is dated 28.7.1989.
It was published on 30.10.1989. The learned Single Judge
dismissed the writ petition on 7.10.1999 and the Letters
Patent Appeal was dismissed on 29.6.2000.
9. Considering the facts that the specific stand of the
appellant about the respondent being employee of the
Contractor was not considered by the Labour Court and the
High Court, in normal course we would have remitted the
matter to the High Court for consideration of that aspect. But
taking into account the fact that even after reinstatement, the
respondent has superannuated, ends of justice would be best
served if 50% of the back wages in terms of the Labour Court
Court\022s award is paid to the respondent. The payment shall
be made within three months. If any payment has already
been made as back wages, the same shall be adjusted from
the amount payable in terms of this order.
10. The appeal is allowed to the aforesaid extent with no
order as to costs.