STATE OF GUJARAT Vs. JITENDRABHAI RAMESHBHAI SODARAVA

JUDGEMENT

(1.) The present petitions are filed under Articles 226 and 227 of the Constitution of India for challenging the legality, validity and propriety of the award passed by the learned Presiding Officer, Junagadh dated 30.11.2017. Since, common question of law and facts are arising, at the request of learned Assistant Government Pleaders, these three matters are dealt with by present common order by treating Special Civil Application No.5628 of 2018, as a lead matter.

(2.) So far as Special Civil Application No.5628 of 2018 is concerned, the respondent workman has come out with a grievance that he was discharging his services as a daily rated employee right from the year 2009 diligently. Abruptly, in the year 2014, his services were put to an end without complying any of the provisions of Industrial Disputes Act , 1947 (hereinafter referred to as the "Act") though he has completed 240 days in each year right from 2009 to 2014. It is further the case of the respondent that after discontinuance, a demand notice was also given on 29.06.2015 but the same has not been respondent to, which has constrained the respondent workman to approach the Conciliation Officer and in turn the Conciliation Officer vide order dated 28.09.2015 had referred the reference to the learned Presiding Officer of the Labour Court, Junagadh for adjudication. The said reference was registered as Reference (T) Case No.76 of 2015, wherein at Exh.6, a claim statement has been submitted and upon service of notice, the present petitioner opponent in the reference has submitted a written reply inter alia contending that from 2009 to 2014, the respondent workman had not worked continuously for 240 days, he had worked merely intermittently and on his own had left the work. It is the case of present petitioner that though by way of letter dated 01.07.2015, a request was made instructing the respondent to resume the work, had chosen not to come and had also not completed 5 years as a daily rated employee, hence, the reference was contested. It is further submitted that both the sides produced relevant evidence in the form of oral as well as documentary evidence and after considering at length, learned Presiding Officer has passed an order on 30.11.2017 partly allowing the reference, setting aside the oral termination and directed the present petitioner to reinstate respondent workman to his original post without granting benefit of continuity, without back wages and with a cost of Rs.1,000/-. The reference came to be disposed of, which is made the subject matter of present petition i.e. Special Civil Application No.5628 of 2018.

(3.) So far as Special Civil Application No.5633 of 2018 is concerned, the case of the petitioner is that respondent workman has raised an industrial dispute on the premise that she was appointed at a monthly salary of Rs.4,500/- with effect from 04.03.2004 and had completed 240 days and abruptly came to be terminated without any just cause on 10.03.2013 and for discontinuing the services no procedure is followed as is required under the provisions of Act. Resultantly, this discontinuance was made the subject matter of conciliation proceeding which upon failure report referred to the learned Presiding Officer of the Labour Court, Junagadh where the reference was registered as Reference (T) No.73 of 2015, in which, a request of reinstatement with consequential benefit was sought at Exh.4, the claim statement has been submitted and has asserted that despite the claim notice having been given on 06.07.2015, the same is not complied with. Resultantly, when the learned Presiding Officer issued notice upon the petitioner authority at Exh.5, the reply was filed, in which, it has been disputed by petitioner authority that there is no such sanctioned post on which the respondent was kept in employment nor completed 240 days in a year and has also no right to continue with the employment. Drawing of a salary of Rs.4,500/- is nothing but a concoction and on the contrary, she on her own left the work. Looking to this tenure which is purely of a temporary nature there was no requirement on the part of authority to comply with the procedure, and furthermore, as per the circular dated 17.10.1988 since the respondent has not completed 240 days, respondent is not entitled to claim any relief and by submitting such kind of reply the reference was contested. The learned Presiding Officer upon completion of pleading has given an opportunity to both the sides to lead the evidence, and accordingly, both the sides have produced documentary as well as oral evidence and upon examination in detail the learned Presiding Officer has passed an order on 30.11.2017 directing the petitioner to reinstate the respondent to her original position without benefit of continuity of services nor without granting any back wages. Accordingly, the reference came to be partly allowed and it is this award is made the subject matter of Special Civil Application No.5633 of 2018.