GENERAL MANAGER, BSNL Vs. SANJAY FATTU DESAI

JUDGEMENT

(1.) HEARD Shri P. P. Singh, learned counsel appearing for the petitioner and Shri A. V. Nigalye, learned counsel appearing for the respondent no.1.

(2.) THE above petition challenges an award passed by the respondent no.2 dated 27.02.2004, whereby inter -alia the respondent no.1 has been directed to be reinstated in the services of the petitioner along with full back wages.

(3.) SHRI P. P. Singh, learned counsel appearing for the petitioner has assailed the impugned award on the ground that the respondent no.1 was a daily wage employee and as such the question of considering such person as a workman would not arise. The learned counsel has pointed out that the learned Tribunal has not considered the said aspect in accordance with law and as such the findings on that count by the learned Tribunal deserves to be quashed and set aside. The learned Counsel has taken me through the definition of a workman under the Industrial Disputes Act and pointed out that the respondent no.1 does not fit into such definition. The learned counsel further pointed out that there is no finding by the learned Tribunal as to whether the respondent no.1 was in continuous service of the petitioner for the requisite number of days and as such the question of granting any reinstatement by the respondent no.2 would not arise. The learned counsel further pointed out that the respondent no.1 was engaged only on hours basis to carry out the manual work for the purpose of watering and sweeping of the premises of the petitioner and such person cannot be considered as a workman. The learned counsel further pointed out that there is no similar post available with the petitioner and as such the question of directing the petitioner to get the respondent no.1 reinstated does not arise at all. The learned counsel has taken me through the impugned award and pointed out that the learned Tribunal has directed the reinstatement of the respondent no.1 as a casual worker without considering the documents adduced by the petitioner to the effect that the engagement of such casual worker is totally banned. The learned counsel further pointed out that the effect of the impugned award would amount to regularisation of a casual worker as held in the judgment of the Apex Court in the case of Secretary, State of Karnataka and Ors. Vs Umadevi and Ors, 2006 4 SCC 1. The learned counsel without prejudice to his aforesaid submissions has further pointed out that in a similar situation this Court while disposing of Writ Petition No. 16 of 2012 has relied upon the judgment of the Apex Court in respect of daily wages employee to remand the matter to consider whether in lieu of reinstatement compensation would be more adequate. The learned counsel as such submits that the impugned award deserves to be quashed and set aside. On the other hand, Shri A. Nigalye, learned counsel appearing for the respondent no.1 has supported the impugned award. The learned counsel has pointed out that the respondent no.2 upon appreciating the evidence on record has come to the conclusion that the respondent no.1 was in continuous service of the petitioner from 15.08.1989.