Pradeep Kumar, J. - (1.) HEARD the learned Counsel for petitioner - M/S Tata Engineering & Locomotive Company Ltd now Tata Motors Ltd., Jamshedpur and learned Counsel for the workman - Dr. K.D. Pandey.
(2.) THE instant writ application is directed against the judgment dated 28.2.2006 passed by the Presiding Officer, Labour Court, Jamshedpur in B.S. Case No. 3 of 1997 by which judgment, learned Labour Court after considering all the evidence on record came to a finding that the respondent - Dr. K.d. Pandey was an employee working in the hospital being run by TATA motors for the treatment of workers of TATA motors factory as well as people in general and hence, he was employee within the meaning of Shops and Establishment Act, 1953, the court on the basis of the evidence came to a conclusive finding while deciding the issue No. 2 i.e. as to whether the applicant was guilty of misconduct of accepting illegal gratification. Learned Labour Court after discussing all the evidences also came to a conclusive finding at para 38 of the judgment that the management failed to prove by any reliable evidence that Dr. K.D. Pandey has committed any misconduct as alleged by the management - petitioner and finally while deciding the issue that whether the punishing authority was competent to punish the applicant on the charge of misconduct, learned Labour Court has considered all the aspect came to a conclusive finding that the action of the management on 6th February, 1997 in terminating the service of the applicant -respondent in this writ application was malafide, illegal and improper and also found that the Divisional Head cum Managing Director, Personal was not competent to terminate the service of the applicant and directed for reinstatement of the Respondent with full back wages with consequential benefits and continuing in service. In this writ of certiorari , learned Counsel for the petitioner has again raised the point that the respondent was working as per the factory act, since petitioner - TATA Motors is running the factor and factory has opened the hospital which is incidental to the running of the factory. He has further submitted that since, the hospital is being run without any profit base for the employees as per Section 91 of the act, hence it will not be covered under the shops and establishment Act. He has further raised the point that employee concerned was terminated by invoking annexure -2 i.e. terms of agreement and hence, he cannot claim that his termination was not in accordance with law. He has also argued that respondent cannot be allowed to get full back wages since, learned Labour Court has failed to give any finding with regard to the fact that the workman was gainfully employed somewhere else or not. He has also argued that petitioner was holding a post of trust being appointed as Registrar of the hospital being run by TATA motors, as such he cannot be asked to be reinstated.
(3.) ON the other hand learned Counsel for the respondent submits that now there is no question of reinstatement of respondent, since he has crossed the age of superannuation and that was the purpose of filing writ application in the year 2006 so that the respondent may not rejoin his service. However, respondent is entitled to get compensation in accordance with law. He has further submitted that now it has been settled by the judgment of the Hon'ble Supreme Court that the hospital run by TISCO or TELCO are establishment within the meaning of Shops and Establishment Act. He has relied in the judgment of the case TISCO v. Chief Inspector of Factories in the case reported in : (2005) 9 SCC 605. He has further submitted that now since, petitioner has crossed the age of his superannuation, hence he is entitled for compensation in accordance with law.;