EXECUTIVE ENGINEER Vs. SHANKARBHAI JIVABHAI PATEL

JUDGEMENT

(1.) In both these petitions, Award passed by the Labour Court, Bharuch, in Reference (LCB) No.602 of 1990 (Old (LCB) No.955 of 1989) dated 31.1.2003 is challenged. The Labour Court, Bharuch, has set aside the termination order and granted reinstatement with continuity of service with 35% backwages for interim period. The employer has raised grievance against reinstatement and 35% backwages whereas the workman has raised grievance for denial of 65% backwages, therefore, both the matters are heard together. I have heard learned advocate Shri Sudhanshu Patel on behalf of employer and Shri P.H.Pathak, learned advocate appearing for the workman.

(2.) The services of the workman, according to him, were terminated on 1.2.1987, dispute against termination was referred for adjudication on 28.9.1989 to the Labour Court. According to the workman, he remained in service from 11.8.1983 to 9.9.1984 as a daily wager and from 10.9.1984 to 31.1.1987 as a workcharge employee in the scale of Rs.260-400. According to him, his services were terminated without giving any opportunity, being victimization and without giving any reason or justification by the employer. The statement of claim which was filed by the workman was replied by the employer vide Ex.14. In reply, contention was raised by the employer that the Labour Court has no jurisdiction as Civil Service Servant Tribunal Act is applicable to the workman concerned. Further averment made in the reply is that the workman was appointed by the employer without following legal and due procedure under the Panchayat Service Rules. The workman was appointed for 29 days which was on contract basis and such type of appointments were given from 10.9.1984 to 31.1.1987. On the next date, i.e. On 1.2.1987, the contract was not renewed, and therefore, the services of the workman automatically came to an end by afflux of time. So according to the employer, there is no termination from their side but services came to an end automatically by afflux of time. Before the Labour Court, the workman produced certain documents vide Ex.16 wherein appointment orders were produced. On behalf of employer, vide Ex.45, certain documents were produced from Ex.53 to 61, in which, copy of Muster Roll was also produced. The workman was examined vide Ex.15 and he deposed before the Labour Court that he was employed fro 11.8.1983 to 9.9.1984 as a daily wager workman on daily wage of Rs.15/- per day and then from 10.9.1984 to 31.1.1987 by 29 days' order. Salary was received by him as per Government Rules, during his service no memo was given by the employer, post of wireman was found to be vacant and after completion of period, his service was terminated. According to the workman, he was terminated because he raised demand for making him permanent. After termination, he wrote a letter to the employer to reinstatement him but it was not accepted and therefore, Reference was made. In cross-examination, workman deposed before the Labour Court that he had completed 240 days' continuous service. Then vide Ex.48, witness on behalf of employer has been examined. Thereafter, matter was heard by the Labour court. Thereafter, the Labour Court raised issue as to whether the workman is entitled for reinstatement with continuity of service with full backwages or not. The Labour Court has considered the defence of the employer that such type of appointments were based on contract and the appointment was for the period from 10.9.1984 to 31.1.1987. In view of these facts, the Labour Court raised issue whether the service which was rendered by the workman with the employer is based on contract or not. The Labour Court has referred and considered the periodical appointments given by the employer to the workman. It is not a dispute raised by the employer that the workman did not remain in service for the entire period. On the basis of this evidence and submissions made by employer, the Labour Court has rightly raised the question whether there is any justification with the employer to give such type of orders of appointments on contract basis. The Labour Court has at page 11, rightly raised the question that such type of periodical appointments on contract basis are without any justification from the employer who is a public body and the same has created some doubt namely of denial of legal rights of the workman or to avoid the statutory provisions for necessary compliance. The Labour Court has considered that such type of 29 days' order can be given by the employer how long or for how much period. There is no end to such type of appointments given to the workman. Therefore, the Labour Court considered Section 2(oo)(bb) of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act"), which gives power or authority to the employer to appoint an employee on contract basis by giving periodical appointments. The Labour Court interpreted the word `contract' and came to conclusion that such kind of appointment while giving artificial breaks for one or two days amounts to unfair labour practice adopted by a public body. There is no justification given by the employer that why each month such type of order is required to be issued in favour of the workman, is there any demand raised by the Department or from any section which requires employment of the workman concerned periodically. The Labour court has rightly come to the conclusion that this break is artificial and such type of tactics have been adopted by the employer to deny legal benefits which are available to the workman under the law. The power given to the employer to appoint any employee on periodical basis or contract basis must have to be justified by the employer before the Court that such type of specific appointment was required for specific work or duration and that has not been justified by the employer before the Labour Court. The Labour Court has considered certain decisions which were cited by both the sides and ultimately, the Labour court has come to the conclusion that such type of appointments given to the workman are arbitrary, amount to unfair labour practice adopted by the public body and just to deny the legal benefits to the workman or to avoid legal complications while terminating the service, this mode is adopted. Therefore ultimately, the Labour Court has come to the conclusion that the workman had completed continuous service in both parts 240 days and at the time of terminating the service, Section 25F of the Act has not been complied with and therefore, termination order is set aside and the Labour Court has granted reinstatement in service. Then the Labour Court has considered the question of backwages. The Labour court considered the deposition of workman and the fact that in his cross examination he admitted that he was receiving Rs.15/- per day, Reference was of 1989, more than 13 years old and workman was having technical knowledge of wireman, and therefore, he may not have remained without work for long period and further the fact that the petitioner-Panchayat is a public body, being a part of Government, so unnecessary financial burden may not be imposed upon the establishment was also considered and thereafter, considering these facts, the Labour Court has granted only 35% backwages for interim period.

(3.) Learned advocate Shri Sudhanshu Patel appearing for the Panchayat, has relied upon certain decisions in support of his submission that it was a periodical appointment covered by definition under section 2(oo)(bb) of the Act and if the case falls under this definition, section 25F will not be applicable, because it does not amount to retrenchment and therefore, the Labour Court has committed gross error.