MEDICAL OFFICER Vs. DASHRATHSINH GAJUBHA ZALA

JUDGEMENT

(1.) Heard learned Advocate Mr. Dipak C. Raval for Petitioner. He submitted that Respondent was appointed as daily wager driver in Primary Health Center when there was additional work available. Respondent workman was relieved from work as work was not available. Therefore, Respondent raised an industrial dispute under machinery of Industrial Disputes Act, 1947 which was referred to for adjudication to Labour Court, Surendranagar, registered as Reference (LCS) No. 24 of 2004. Statement of claim was filed by workman against which written statement was filed by Petitioner wherein it was stated that appointment of Respondent was casual in nature and Respondent was not appointed through any selection procedure and Respondent also not supplied his consent letter to work as and when work was available. Labour Court, Surendranagar passed award on 24th March, 2010 and granted reinstatement. According to learned advocate Mr. Raval for Petitioner, Medical Officer, Primary Health Center, Surendranagar is not having any authority to appoint or terminate any person and award itself is passed without joining necessary parties and, therefore, award is challenged in present petition. Petitioner has annexed award passed by labour Court, Surendranagar page 10 Annexure A dated 24.3.2010. Labour Court has granted relief of reinstatement in favour of Respondent as daily wager driver, to original post without back wages of interim period with costs of Rs. 500.00. Annexure B page 17 is copy of statement of claim produced by Petitioner along with present petition, according to which, Respondent workman was working as driver in establishment of Petitioner since last two years and was receiving daily wage of Rs. 85.20 ps. According to workman, his presence was being marked in muster roll and salary was being paid while obtaining signature in pay register and was not provided pay slip, identity card etc. According to workman, he has completed 240 days continuous service in each year when he was working with Petitioner. His service was terminated on 26th June, 2002 and thereafter, new driver has been engaged by Petitioner. According to workman, at present, Petitioner is having vehicle and recruiting fresh driver but on that occasion, no offer of re-employment has been made by Petitioner to Respondent workman. Demand notice was served by Respondent workman to Petitioner but no reply was given by Petitioner, therefore, according to workman, his services were terminated by Petitioner establishment in breach of Section 25F, G and H of ID Act, 1947.

(2.) Against that, written statement was filed by Petitioner which is annexed at Annexure B colly to this petition by Petitioner. According to stand taken by Petitioner before labour Court that they are functioning subject to the rules and regulations of Government and instructions received from Government from time to time and in view of such function, whoever needy patients comes for primary treatment, they are provided treatment without taking any charge whatsoever and as per requirement of patients, even medicines are also being provided, free of charge. It was also submitted by Petitioner establishment before labour Court that their establishment is run from grant of Government and therein, only persons selected by District Panchayat Service Selection Board are being recruited and without following any such procedure, Respondent workman was appointed as daily wager. Respondent workman was intermittently working as daily wager driver as and when there is necessity. His work was not continuous and jeep which was being driven by workman is at present not in working condition and, therefore, in such circumstances, question of reinstating workman in service is not arising. Industrial Disputes Act is not applicable to Petitioner establishment, therefore, workman is not entitled to get any relief from labour Court. It was also case of Petitioner before labour Court that Petitioner is not having jurisdiction or power to appoint any person without following process of recruitment rules and, therefore, reference is required to be dismissed. One defence is raised by Petitioner that one offer was made by Petitioner establishment that if Respondent workman is willing to perform duties as daily wager driver and makes demand to that effect in writing before Petitioner, then, first preference will be given to Petitioner. Learned Advocate Mr. Dipak C. Raval for Petitioner submitted that in response to aforesaid offer made by Petitioner, no consent letter was given or supplied by Respondent workman to Petitioner and in case after receiving such consent letter from workman, Petitioner was prepared to provide work to Respondent workman. Thereafter, certified copy of award is placed on record. Except that, no other documents have been annexed by Petitioner in present petition.

(3.) Learned Advocate Mr. Raval for Petitioner raised contention before this Court that in such circumstances, labour Court ought not to have granted relief to a daily wager driver whose services were terminated for want of work and vehicle which was entrusted to Respondent workman was not in working condition and workman was not recruited after following due process of recruitment rules. Then, he relied upon decision of apex Court in case of Incharge Officer and Anr. v. Shankar Shetty, 2010 9 SCC 126 and submitted that labour Court ought to have awarded lumpsum compensation in lieu of reinstatement as daily wager driver. Learned Advocate Mr. Raval for Petitioner emphasized that offer made by Petitioner in written statement was not accepted by workman and, therefore, now, reinstatement ought not to have been granted by labour Court. According to his submission, this Primary Health Center is run by Surendranagar District Panchayat on the basis of grant received from State Government and therefore, Petitioner establishment, Primary Health Center is not having any legal entity but it is depending upon grant received from either Surendranagar District Panchayat or from State Government and, therefore, labour Court ought not to have granted relief of reinstatement in favour of Respondent workman. Except that, no other submission is made by learned advocate Mr. Raval before this Court and no other decision has been cited by him before this Court.