RAJENDRAPRASAD SHANKARLAL Vs. EXECUTIVE ENGINEER

JUDGEMENT

(1.) Heard learned advocate Mr.B.S. Supehia for the petitioner and Mr. H.D. Dave, learned AGP for the respondents. In this petition, the petitioner is challenging the award made by the labour court, Palanpur in Reference No. 171 of 1996 dated 29/05/2000 whereby the labour court has rejected the reference filed by the petitioner workman. In this matter, rule has been issued by this court on 22nd January, 2002 and it was made returnable on 20th February, 2002. In this matter, affidavit in reply has been filed by the respondents and rejoinder thereto has also been filed by the petitioner.

(2.) During the course of hearing, learned advocate Mr. Supehia has submitted that according to the findings recorded by the labour court on the basis of the documents which were produced by the respondents before the labour court, it is Undisputedly clear that the petitioner workman has worked from 14/03/1989 to 31st December, 1989, 219 days continuously and from 1st January, 1990 to 31/03/1990, for a period of sixty days. He has submitted that if the total period of working days is taken into consideration, it would come to 279 days. He has submitted that the labour court has erred in coming to the conclusion that 240 days are required to be completed within one calender year. He has submitted that on the basis of the aforesaid erroneous conclusion, the labour court has recorded the finding that the provisions of section 25-F of the Industrial Disputes Act, 1947 have not been followed because there is no question of retrenchment required to be complied with by the respondents. He has submitted that the labour court has specifically observed that the petitioner has not completed 240 days' continuous work and he has worked for a different period and thus he has not completed continuous service and, therefore, provisions of section 25-F of the Industrial Disputes Act, 1947 are not at all applicable. He has relied upon the decision in case of Mohan Lal v. Management of Bharat Electricals Ltd., reported in AIR 1981 SC 1252 and has submitted that if any employee or workman has completed 240 days work during the last 12 months preceding the date of the order of termination, then, he is entitled for the benefits of section 25-F of the Industrial Disputes Act, 1947. He has submitted that section 25-B is very much clear wherein the term 'continuous service' has been defined. Section 25-F is also clear that in such circumstances, a workman is entitled to the benefit of these provisions and, therefore, according to him, the labour court has erred in coming to such conclusion and such conclusion drawn by the labour court is contrary to the provisions of law as well as the principles laid down by the apex court in the aforesaid decision. He has submitted that as regards the working days produced by the respondents, there is no dispute between the parties. Service of the petitioner was terminated with effect from 1/04/1990 and if consider the date of termination 1/04/1990 and then consider 12 months preceding the date of termination, then, it is clear that the petitioner workman has completed more than 240 days actual work within 12 months preceding the date of termination and, therefore, the labour court ought to have held that there is breach of the provisions of section 25-F of the Industrial Disputes Act, 1947 and the action of the respondents is bad for want of compliance of section 25-F of the Industrial Disputes Act, 1947. According to him, since the labour court has erred in law and facts in coming to such conclusion, the impugned award rejecting the reference of the petitioner is required to be quashed and set aside.

(3.) On the other hand, learned Asstt. G.P. Mr. H.D. Dave appearing for the respondent authorities has submitted that the petitioner was working in the office of the Executive Engineer, Rural Road Project Division, Palanpur and the work of the said project has already come to an end and as such, there is no work which can now be offered to the petitioner. He has submitted that the name of the petitioner was never inserted in the Muster Roll as he was working as casual labour. According to him, the petitioner was engaged as daily wager rojamdar and his name can be entered into nominal muster roll as he was engaged as casual worker and his name was not there in such register. He has submitted that according to the rules, the department is empowered to engage workers on casual basis for the purpose of job work and for that, H.R. payment is required to be made under Form No. 28 and accordingly, name of the petitioner was inserted in Form NO. 28 and he was engaged as casual worker for job work of the department and, therefore, the petitioner cannot ask for the reliefs which he has prayed in the reference before the labour court. In light of these submissions, according to him, the labour court was right in coming to the conclusion that the petitioner has not completed 240 days work within one calender year as he was being engaged by the department as and when work was available with the department. According to him, in view of these facts, the labour court was also right in coming to the conclusion that the provisions of section 25-F are not applicable and the labour court has not committed any error in recording such findings and then in rejecting the reference and, therefore, this Court should not interfere with the award of the labour court in exercise of the powers under Article 226 and/or 227 of the Constitution of India.