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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.