RAJUJI SHIVAJI THAKORE Vs. EXECUTIVE ENGINEER

JUDGEMENT

(1.) The present petition is filed by an employee against the judgement and award dated 8.1.2001 in Reference (LCK) No. 245 of 1999. The learned Judge was pleased to reject the reference. At the first hearing, learned counsel appearing for the petitioner pointed out that the judgement and award passed by the same learned Judge in Reference (LCK) No. 246 of 1999 dated 7.1.2001. The learned advocate for the petitioner has produced the facts of both the cases in form of comparative table in para.3.3 and pointed out that there was hardly any difference in the facts of these two cases and still for no express reason in one case the reference was allowed and reinstatement was ordered with continuity of service in the case of present petitioner the reference was rejected. The matter is serious enough for being referred to on administrative side to the learned Judge who looks after the Labour Courts. The same is being done by a separate order. However, by an order dated 1.8.2001, this Court issued notice returnable on 13.8.2001 for final disposal of the petition and it was made clear that the respondent was not asked for time and shall come prepare with affidavit in reply if any they want to file on the said date. The order-sheet reveals that inspite of the aforesaid order, the matter could not be heard and disposed of on that day and it was required to be adjourned on number of occasions thereafter. On 6.11.2001, this Court (Coram : Mr. K.M.Mehta,J.) passed an order to the effect that, "(para.3) Ms. Nandini Joshi learned AGP states that against the said award dated 7.1.2001 passed by the Labour Court in Reference (LCK) No. 246 of 1999, the Government has filed Special Civil Application No. 11346 of 2000 and the matter is pending." The learned Judge was pleased to record the request made by Mr. Adeshra learned advocate for the petitioner that it will be interest of justice if both the matters are heard together. The learned Judge was pleased to direct the Office to place Special Civil Application No.11346 of 2000 along with this matter and the matter was adjourned to 29.11.2001.

(2.) Again the matter went on being adjourned and it was only on 16.1.2002 that the matter came up before this Court. The Court passed a detailed order wherein it was recorded that other Special Civil Application No. 11346 of 2000 was rejected by this Court (Coram : Mr. P.B.Majumdar,J.) on 1.10.2001. The said fact was noticed only when the papers of Special Civil Application No. 11346 of 2000 were called for. It is also recorded in the order that learned AGP Mr. R.V. Desai was not equipped with this information though incidently Mr. Desai himself appeared in that other Special Civil Application No.11346 of 2000. It is also recorded that Mr. Desai did not have any information as to whether the Letters Patent Appeal is preferred against the order passed in Special Civil Application No.11346 of 2000 dated 1.10.2001 rejecting that petition. In view of the aforesaid facts, on 16.1.2002 the Court passed the following order : Para.5

(3.) Mr. Adeshra learned advocate appearing for the petitioner submitted that the petitioner was employed as a daily wager (Chowkidar) in the year 1983 and he was continuously in service for long 16 years until he was terminated by an oral order in the year 1999 without any rhyme or reason. Mr. Adeshra, the learned advocate submitted that the petitioner workman was constrained to approach the Labour Court, Kalol by filing a Reference (LCK) No. 245 of 1999. The said Reference is rejected in a very cursory manner without assigning any tenable reasons for the rejection. Mr. Adeshra, learned advocate submitted that, in a case having identical facts, the learned Judge of the Labour Court has granted reinstatement to other coemployee and a petition filed against the said judgement and award of the Labour Court is dismissed and till date, no Letters Patent Appeal is filed by the State. Mr. Adeshra, learned advocate submitted that the petitioner workman had contended before the Labour Court that he was working for last 16 years, continuously, as Chowkidar with the respondent Authority, and on 15.2.1999 when the petitioner went to the place of work, he was not allowed to work and his services were terminated by an oral order. Mr. Adeshra submitted that, the respondent Authorities before the Labour Court had contended that as there was no permanent establishment created by the Government for the work which the petitioner workman was discharging and there being no permanent post there was no necessity to continue the workman. The workman had not worked continuously. It was a temporary post and daily wagers were called for and as per the rules and regulations they were paid. It was also contended that the workman had never made any demand before filing the present application (Reference). On completion of the season, on account of recession in the work, the workman had stopped coming to work. For all these reasons, the reference is required to be rejected. The learned Judge after appreciating the case of both the sides held that the workman is not able to produce any written evidence to prove that for last 16 years he was working on a permanent post. That he has admitted in his statement of claim and in the deposition that he was employed as a daily wager and in his cross-examination he had admitted that at present no daily wager workman is working on the canal and on this ground, the reference of the workman is rejected.