BIKANER GYPSUM LTD Vs. JUDGE CENTRAL GOVERNMENT

JUDGEMENT

(1.) M /s. Bikaner Gypsum Ltd., Udaipur (hereinafter referred as 'the Company') is engaged in mining business and owns a rock phosphate mines at Jamer Kotra in Udaipur district in the State of Rajasthan. The Company is also running a canteen at the mines for the benefit of its workmen employed at the mines. The work of canteen was earlier supervised by two Supervisors but the canteen was not functioning satisfactorily. On November 27, 1971, the Company employed respondent No. 2 Mahesh Chandra Sharma on a newly created post of Canteen In -charge on a 'purely temporary basis' for a period of 6 months with effect from December 1, 1971, to look after the Company's canteen at Jamer Kotra. The appointment of respondent No. 2 was made on the condition that on the expiry of the period of 6 months his temporary appointment shall automatically stand terminated. According to the Company, the post of Canteen In -charge was created on an experimental basis with a view to improve the working of the canteen run by the Company for the benefit of the workers at the mines. Before the expiry of the period of 6 months, the Company by its letter dated May 25, 1972 extended the period of appointment of respondent No. 2, Mahesh Chandra Sharma. on the post of Canteen In -charge for one month with effect from June 1, 1972, on a purely temporary basis, with the condition that the services of the respondent No. 2 will automatically stand terminated on the expiry of the extended period of his temporary appointment. On June 28, 1972, the Company intimated the respondent No 2 that his service was no longer required by the Company and as such his service was terminated with effect from June 30, 1972. According to the Company, on a representation submitted by respondent No. 2, the Company withdrew the order of termination of the service of respondant No. 2 and by its letter dated June 30, 1972 he Company informed the respondant No. 2 that his service would be continued till further instructions. It was also mentioned in the letter dated June 30, 1972 sent by the Company to the respondent No. 2 that he was advised to improve his performance. Thereafter, by the letter of the Company dated September 14, 1972, the service of the respondent No. 2 was terminated with immediate effect.

(2.) ON the request of the workman, the Central Government referred the following dispute to the Central Government Industrial Tribunal, Jabalpur, for adjudication: Whether the action of the management of Jhamarkotda Rock Phosphate Mines of M/s Bikaner Gypsum, Udaipur in terminating the services of Shri Mahesh Chandra Sharma, Canteen In -charge, was legal and justified? If not, to what relief is he entitled Both parties filed their written statements and led their evidence before the Central Government Industrial Tribunal at Jabalpur (hereinafter referred to as 'the Tribunal'). The Tribunal by its order dated April 22, 1974 held that the management did not produce any evidence to substantiate its contention that the performance of respondent No. 2. Mahesh' Chandra Sharma (hereinafter called 'Sharma'') was unsatisfactory. According to the Tribunal, the very fact that his term of employment was extended by the Company would indicate that Sharma's work as Canteen In -charge was satisfactory. The Tribunal further held that although initially respondent No 2 was appointed on a temporary basis, yet there is sufficient evidence on record to indicate that the post of Canteen In -charge was not a temporary' post, but it appears to be a permanent post and that a mere change of designation from 'Canteen Incharge to supervisor' did not make any difference, in as much as the Supervisor continued to perform the same work which was earlier performed by Sharma and this fact went to show that the post was not abolished but merely the designation was changed. Sharma worked for 9 months and 14 days and the termination of his service could have been brought about by giving him one month's notice by the management. The Tribunal held that as no notice was given by the Company terminating the service of Sharma the termination of his employment was invalid and that Sharma was entitled to be reinstated to his post as Canteen Incharge. The Tribunal, therefore, held that the termination of service of Sharma by the Company was illegal and was not justified and Sharma was entitled to be reinstated to his post and he must be paid his back wages together with usual allowances. The aforesaid order passed by the Tribunal, has been challenged by the Company in the present writ petition.

(3.) MR . Singhvi, learned counsel for Sharma tried to defend the order passed by the Tribunal and submitted that the Company did not have any certified standing orders and as such the model standing orders contained in Schedule I appended to the Industrial Employment (Standing Orders) Central Rules, 1946 (hereinafter called 'the Rules') shall be deemed to have been adopted in the establishment, by virute of the provisions of Section 12 -A of the Industrial Employment (Standing Orders) Act, 1945 and that Sharma was a permanent workman, according to the classification of work in Clause 2 of the model standing orders. Learned counsel argued that even if respondent No.2 was taken to be a probationer, then after the expiry of the months he became the permanent workman and as such notice of one month was required to be given for terminating the employment of Sharma in, accordance with Clause 13 of the Emplyees Standing Order. Learned counsel also argued that the post of Canteen In -charge was a permanent post and there were two Supervisors earlier, who performed the work of Canteen In charge before Sharma's appointment and the same work was performed by three Supervisor's after the termination of Sharm's service. Learned counsel submitted that mere change of nomenclature would make no difference and it was of little consequance as to whether the person looking after the work of canteen was called a 'Canteen Incharge' or' 'Supervisor' so long as such person performed the same duties. Learned counsel drew my attention to the definition of 'temporary', contained in Clause 2 of the Employees Standing Orders and argued that as the case of Sharma did not fall under the other categories of 'Badli', 'temporary', 'casual' or apprentice', he was necessarily a permanent workman. Learned counsel asserted that the post of Canteen Incharge was not abolished but merely the designation was changed to that of Supervisor.