High Court
Case Details
WP(C) 6317/2005 BEFORE HON’BLE MR JUSTICE B. K. SHARMA This writ petition is directed against the Annexure-VI, order dated 01.04.2003, passed by the Assistant Labour Commissioner, Guwahati cum Appellate Authority un der Section 18 of the Assam Shops & Establishment Act, 1971. In terms of the sa id order, the respondent No.2 who was the appellant in the appeal is required to be reinstated in service along with compensation of Rs.5000/-. Alternatively, h e would be entitled to lump sum compensation of Rs. 1,10,000/-(one lakh ten thou sand only).
Decision
As stated in the writ petition, the petitioner was engaged by the Shop M anager in the Bata Shoe store, Nalbari on temporary basis i.e. (cid:28)no work no pay b asis (cid:29). Although payment was made on fortnightly but he was paid his salary on da ily rated basis. It is the case of the petitioner that the respondent No.2 was a ppointed as per the sole discretion of the Manager and that the petitioner compa ny itself was not involved in such appointment. For filling up of the post, a recruitment process was initiated on 19.09 .2000, in which respondent No.2 also participated. However, in the selection he could not qualify and accordingly the candidate who was found qualified and suit able was selected and appointed. The said selected candidate is not party to the proceeding. As stated in the writ petition, upon such appointment the services of re spondent No.2 was dispensed with and he was also paid his dues. The respondent N o.2 duly accepted the payments, thereafter he approached the Labour Inspector ra ising a grievance against his purported retrenchment from service. By Annexure-V , letter dated 20.10.2001, Labour Inspector, Nalbari intimated the petitioner th at since he has already accepted compensation and one month’s salary in lieu of retrenchment notice, there was no scope to proceed further with the matter. Bein g aggrieved, the petitioner preferred an appeal under Section 18 of the Assam Sh ops & Establishment Act, 1971. The appeal was preferred before the Appellate Aut hority i.e. Assistant Labour Commissioner cum Appellate Authority. By the impugned order dated 01.04.2003, the appeal having been allowed i n terms of the directions indicated above, the petitioner filed the instant writ petition. The impugned order was stayed by this Court by an interim order dated 07.09.2005. In the counter affidavit filed by the respondent No.2, it has been state d that the respondent No.2 had continued in the services for about 12 years and thus it was incumbent on the part of the authority of the petitioner company to consider regularisation of his service instead of retrenching him in the name o f selection. Heard Mr. A. K. Sarma, learned counsel for the petitioner and Mr. S. Das, learne d counsel representing the respondent No.2. I have also heard Mr. B. G. Ghosh, l earned State Counsel. I have also perused the entire materials on record. As regards the selection and appointment pursuant to which the services of the r espondent No.2 was dispensed with, the respondent No.2 has accepted the same. Th e selection was conducted in September, 2000 for filling up the post on regular basis. He has also accepted the appointment of the selected candidate. However, his claim is that he was retrenched from service without following the due proce dure. As per the requirement of Section 18 of the aforesaid Act, 1971 no employer shal l dispense with the services of an employee employed continuously for a period o f not less than six months except for a reasonable cause without giving such emp loyee at least one months notice or wages in lieu of such notice. Such notice is not required if the discharge is on account of charges of misconduct etc. As pe r Section 18, an employee whose services are dispensed with is entitled to prefe r an appeal to the prescribed appellate authority. As per Rule 17 of the Assam S hops & Establishment Act, 1971, the Appellate Authority is the Assistant Labour Commissioner which includes Senior Assistant Labour Commissioner. Being aggrieve d by the rejection of the claim of the petitioner by the Inspector on account of acceptance of the final settlement dues by the petitioner, he preferred the app eal under Section 18(2) of the Act, entertaining which the Assistant Labour Comm issioner passed the impugned order dated 01.04.2003 with the aforesaid direction . On perusal of the impugned order dated 01.04.2003, it is found that the reinstat ement of the respondent No.2 has been primarily directed on the ground of violat ion of the provisions of Section 18 of the Act. The order has been passed holdin g that since the petitioner was not given one months’ notice there was violation of the said provision. However, while doing so, it escaped the notice of the As sistant Labour Commissioner that Section 18 also provides for wages in lieu of o ne months notice. In the instant case, admittedly the petitioner was provided with one months’ sal ary in lieu of notice. This aspect of the matter having not been considered by t he Assistant Labour Commissioner, there was erroneous finding in the impugned or der. That apart, there is no mention in the order as regards the selection condu cted by the petitioner company to fill up the vacancy on regular basis. There is also no mention regarding the appointment already made issuing appointment orde r in favour of the selected candidate. In case of implementation of the order re instating the respondent No.2 in service the selected candidate who has already been appointed will have to be terminated from his service. This aspect of the m atter has not been considered in the impugned order. Mr. S. Das, learned counsel representing the respondent No.2, submits th at the petitioner had been performing his duties and responsibility for long 12 years and having regard to the nature of the job involved, the authority in the petitioner company ought to have selected him instead of taking up a new hand. H e further submits that if it is not possible to reinstate the respondent No.2 in service he may be provided with some compensation for generating hopes and extr acting his service from long 12 years. Considering the matter in its entirety the impugned order dated 01.04.20 03 (Annexure-6) stands interfered with. However, it is hereby provided that havi ng regard to long 12 years of service the respondent No.2 would be entitled to c ompensation of Rs. 25,000/- (Rupees twenty five thousand) only. Writ petition is disposed of with the aforesaid direction and interfering with t he impugned order dated 01.04.2003 passed by the Assistant Labour Commissioner, Guwahati cum Appellate Authority leaving the parties to bear their own costs.