RAJKOT DIST PANCHAYAT Vs. VAJASOOR ALA RATHOD

JUDGEMENT

(1.) Heard learned advocate Mr. H.J. Nanavati for the petitioners and Mr. P.M. Pathak for the respondent. In- this petition, the petitioner panchayat has challenged the award made by the labour court, Rajkot in Reference No. 412 of 1984 dated September 8, 1995 wherein the labour Court has granted reinstatement with continuity of service with 20 per cent back wages for the intervening period. While admitting the petition by issuing rule thereon, this court has granted stay in terms of para 6(a) as well as 6(b) till final hearing of the petition and has, thus, stayed operation of the award in question by order dated March 25, 1996. Said order is reproduced as under:

(2.) On the other hand, learned advocate Mr. Pathak, appearing for the respondent has submitted that the date of appointment and the date of termination of service of the respondent are not in dispute between the parties. According to him, the petitioner has also not disputed the completion of 240 days by the workman within the meaning of section 25B of the Industrial Disputes Act, 1947 and, therefore, the labour court was right in granting benefit of section 25-F of the Industrial Disputes Act, 1947 which has been violated at the time of termination of service of the workman. Therefore, order of termination is bad, illegal and void ab initio and labour court was right in setting aside such an order and granting the relief of reinstatement with 20 per cent back wages in favour of the workman. It was also submitted by him that before the labour court, no such contention was raised by the petitioner that the relief work is not covered by the definition of 'industry'. No evidence to that effect was led and proved by the petitioner before the labour court and, therefore, now the petitioner cannot raise such contention for the first time before this Court in a petition under Article 227 of the Constitution of India. According to him, before relying upon the decision in HK Makwana (supra), petitioner is required to prove that issue by producing cogent and convincing evidence to that effect, and then the decision can be considered. According to him, there is no evidence on record to show that the workman was appointed on relief work. According to him, the labour court has rightly decided the matter and granted the relief while appreciating the facts on record.

(3.) I have considered the submissions made by the learned advocates for the parties. I have also perused the award in question made by the labour court. I have also perused the appointment order issued by the Deputy Executive Engineer, R & B Panchayat, Sub Division, Relief Work No.2, Morbi dated 30th November, 1980 wherein appointment came into effect from 1st November, 1980 which has been considered as Hangami and he has to work for 24 hours in the pay scale of Rs.196-3-232. Appointment order of the workman was placed before this Court by the learned advocate Mr. Pathak. On perusal of the said appointment order, it appears that the condition that the workman is appointed in the relief work, has not been incorporated. Such condition has not been incorporated even in the sanction order/letter and there is no such indication that the workman has been appointed as a Chokidar (Watchman) in relief work. Condition No. 5 suggests that whatever expenses and salary of the workman has to be adjusted against the relief work and that does not mean that he has been appointed against the relief work. This appointment order is very much clear and the conditions of the order of appointment are also clear and looking to this appointment order and considering the conditions thereof, according to my opinion, it cannot be said that the respondent workman was appointed for the scarcity work as contended by Mr. Nanavati, but it can be said that the workman has been appointed to watch the store material of the Sub Division for 24 hours. It is also clear that if an employer informs the workman while issuing appointment order, that his appointment is in a particular project or for a particular work, then, on completion of such project or particular work, employer has right to terminate service of such a workman and otherwise, employer has no right or authority to terminate service of any workman. If such condition is not incorporated in the order of appointment, then, it is not open for the employer to take such a plea that the appointment of the workman, was for a particular project or work. Looking to the facts of the present case, it is clear that the workman was not appointed against the relief work and, therefore, there is no question of applying the ratio of the decision of the Full Bench of this Court in H.K. Makwana (supra) in view of the peculiar facts of the present case as the petitioner was not appointed for the relief work. In S.M NILAJKAR ANT) OTHERS V/S. TELECOM DISTRICT;, MANAGER, KARNATAKA [AIR 2003 SC 3553], the apex court considered the question of termination of project employees. In para 13 of the said judgment, it was observed by the apex court as under: