BABUBHAI GOVINDBHAI Vs. ASSISTANT AGRICULTURE ENGINEER

JUDGEMENT

(1.) Heard learned advocate Mr.Kishor M. Paul on behalf of the workman and the learned AGP Mr.Mangesh Mengade for respondent - State of Gujarat in connection with Special Civil Application No.6827 / 2001 and vice versa in other connected matter filed by the petitioner State of Gujarat.

(2.) In both these petitions, the respective parties have challenged the award passed by the labour court, Rajkot in Reference No.1305 / 1989 dated 19th May, 2001, wherein the termination order has been set aside by the Labour Court, Rajkot granted reinstatement with continuity of service and also granted 25 % backwages of the interim period. The challenge of the State of Gujarat is against the reinstatement, so also, grant of 25 % backwages. The challenge against the very same award by the workman against denial of 75 % backwages of the interim period. It is undisputed facts between the parties that the respondent workman was working as the Watchman with the petitioner with effect from 1st August, 1988 till 31st March, 1989 continuously including the public holiday and weekly holidays. The petitioner - State of Gujarat has produced the details showing the working days in respect of present workman vide list Exh.37. In all, 17 documents were produced on record which came to be exhibited from Exh.43 to 59. These documents also admitted by the workman. The petitioner has produced copy of the muster roll where presence of the workmen was noted by the petitioner from August, 1988 to March, 1989 vide Exh.46 to 53. A xerox copy of the said documents has been shown to this Court by the learned advocate Mr.Kishor M. Paul which bear signature of the concerned Officer of the petitioner - State of Gujarat. This Court has called for original record and proceedings from the subordinate labour court and the record is before this Court. This Court has also perused the same. The list Exh.37 along with Exh.43 to 59 of the documents. The relevant documents are Exh.46 to 53 wherein, the muster roll from August, 1988 to March, 1989 has been produced by the petitioner. Before the labour court, original record has been produced for the period from August, 1988 to March, 1989 vide Exh.46 to 53. It also shows that certificate has been given by the concerned officer, Central Store, Rajkot certifying that present respondent workman had worked in the interest of Government on public holidays and holidays and his working found to be satisfactory and accordingly, working days has been recorded in the muster roll and payment to that effect has been made to the respondent workman. This Court has also perused the muster roll, wherefrom the workings are found as under : Thus, in muster roll, it is specifically certified and certificate given by the concerned Officer that concerned watchman workman had worked on holidays in the interest of the Government and accordingly, payment has been made to the respondent workman. Service of the workman terminated on 1st April, 1989 with 15 days notice in advance served on the respondent workman. After calculating the working days for the period from August, 1988 to March, 1989, learned AGP Mr.Mangesh Mengade has also verified the record and calculated the working days of the concerned workman which comes to 243 days. Therefore, learned AGP Mr.Mangesh Mengade admitted that it stand proved that from the date of termination i.e. 1st April, 1989, within last preceding twelve months, the workman had completed 240 days continuous service which amounts to one year continue service as defined under Section 25-B sub section [2] of the Industrial Disputes Act, 1947. It is also not disputed between the parties that at the time of terminating service of the workman, one month notice or notice pay and retrenchment compensation not paid to the respondent workman by the petitioner, in other words, Section 25-F has been clearly violated by the State of Gujarat. Non compliance of Section 25-F rendered the termination order ab initio void. This aspect has been examined by the labour court in its award while considering the record produced by the respective parties before the labour court. Before the labour court, statement of claim has been filed by the workman vide Exh.6, written statement was submitted by the petitioner and thereafter, vide Exh.7 list has been produced by the petitioner and along it produced certain documents and vide Exh.10 workman was examined before the labour court. Thereafter, Exh.37, list referred to above, containing 17 documents, were also produced by the petitioner including the muster roll of the respondent workman for the period from August, 1988 to March, 1989. No oral evidence led by the petitioner before the labour court and right to oral evidence closed by the labour court and ultimately the labour court has considered written submissions made by the workman and oral submissions also considered made on behalf of the petitioner. Ultimately, the labour court has come to the conclusion that after considering certain decisions pointed out by the respondent workman that workman's service has been terminated violating the provisions of Section 25-F, G and H of the I.D.Act, 1947. In oral evidence of the workman, it was specifically deposed that at the time when his service was terminated, junior to the workman was working as the Watchman and continued in service and after his termination, new employee was recruited or engaged by the petitioner - State of Gujarat. This fact is also not controverted by the petitioner by leading proper evidence before the labour court. Therefore, the labour court has come to the conclusion that termination of the respondent workman is in violation of Section 25-F, G and H of the I.D.Act, 1947. Therefore, the labour court has set aside the termination order and granted reinstatement with continuity of service. The labour court has considered the evidence of the workman and after considering the fact that the petitioner has not proved the gainful employment of the respondent workman and workman remained unemployed during the interim period inspite of efforts made by the workman and therefore, ultimately the labour court has considered that the workman has remained unemployed, cannot be believed for such long time and hence, not believed the evidence of the workman to the extent that the workman had remained totally unemployed during the interim period and the labour court has considered the workload and delay in disposal of the Reference proceedings and therefore, not considered to be proper to pass the order awarding full backwages as it would be a burden upon the petitioner - State authority and hence, the labour court has granted 25 % backwages of the interim period.

(3.) Learned AGP Mr.Mangesh Mengade, in support of his contentions, placed reliance on two decisions. The first decision in case of STATE OF H.P. V. SURESH KUMAR VERMA reported in AIR 1996 S.C. 1565. He, however, emphasised on the Head Note which suggests that "appointment of daily wage basis, is not appointment to post according to Rules. Termination of daily wage employees due to coming to end of the project employing them, directions to re-engage them in any other work or appoint them against existing vacancies, cannot be given by the Court. The second decision relied upon by the learned AGP Mr.Mengade in case of HIMANSHU KUMAR VIDYARTHI V. STATE OF BIHAR reported in AIR 1997 SC 3657, wherein the Apex Court has considered that daily wager employee, appointment made on the basis of need of work, termination of their services, cannot be construed to be retrenchment as the same is also not arbitrary as they were not entitled to post. The Apex Court has further considered the concept of "retrenchment" and observed that the concept of retrenchment cannot be stretched to such an extent as to cover these employees, means the temporary employees working on daily wages, not appointed to the posts in accordance with the rules but were engaged on the basis of the need of the work and they are temporary employees working on daily wages. Therefore, relying on the observations and the ratio laid down by the Apex Court in aforesaid two cases, learned AGP Mr.Mengade submits that the workman concerned was daily wager and therefore, reinstatement of such daily wager cannot be granted by the labour court and as such, no relief of backwages ought to have granted in favour of the respondent workman concerned.