JUDGMENT
S.K. Shah, J.
1. Heard the learned counsel for the Petitioner as well as the learned counsel for the Respondent No. 1.
2. Impugned herein is the order passed by the Presiding Officer of the Central Government Industrial Tribunal No. 2, Mumbai on June 22, 1999, whereby he set aside the action of the management of Bharat Earth Movers Limited, terminating the services of Respondent No. 1 with effect from January 13, 1997 and directing the management to reinstate Respondent No. 1 in service with continuity and also then directing the management to treat Respondent No. 1 workman as in the regular employment in a vacancy which occurred due to one Kamble A.P. being not in service and to pay all back wages, deducting the wages already paid to him.
3. It is undisputed that the father of Respondent No. 1 workman was working in the factory as a sweeper and used to do the work of cleaning. While he was in service of the company, in his absence, Respondent No. 1-workman used to be called to the company by his father and was asking him to do the same work, sometimes in his presence and at times in his absence. His father expired in 1987. Thereafter by letters dated July 1, 1987 (Ex. A), July 15, 1987 (Ex.B) and December 1987 (Ex.C), Respondent No. 1 workman was given an employment as casual worker for the fixed periods between April 3, 1987 to June 19, 1987, June 22, 1987 for three months and extending the same by a period of three months till December 10, 1987. These appointments were casual and on payment of Rs. 15/- per day. This casual appointment was on full time basis. Thereafter till 1982 Respondent No. 1 workman was working on part-time basis, which he worked upto November 1992. In the meantime, in 1987 the company was shifted to a premises in Ghatkopar where Respondent No. 1 was working on part-time basis. Thereafter the services of Respondent No. 1 were discontinued.
4. The allegation of Respondent No. 1 was that he was employed by the company and was doing the work of maintenance and cleaning and was also preparing tea for the employees which were 30 in numbers working in Ghatkopar establishment of the company. He was paid his wages initially under vouchers and then by cash. He alleged that there was oral termination with effect from January 13, 1997. On complaint being made, the Government made a reference to the Central Government Industrial Tribunal for adjudicating the dispute as under:-
“Whether the action of the management of Bharat Earth Movers Limited by terminating the services of the workman Shri Mansukh M. Makwana with effect from January 13, 1997 was justified?
If not, what relief the workman was entitled to?”
5. The contention of thePetitioner-company was that Respondent No. 1was not given any regular employment at any time; that he was employed by some of the employees of the company just for preparing tea for which the employees themselves used to collect contributions from the employees working at Ghatkopar establishment of the company and used to pay the workman. There was no relationship of the employer and
employee between the Petitioner and Respondent No. 1 workman and as such the
company dismissed the services of Respondent No. 1.
6. On evidence having been recorded by the Industrial Tribunal, the learned Presiding Officer held that the workman had completed 1240 days of working in a year and was entitled to the benefit of the provisions of Section 25-B of the Industrial Disputes Act and since there was no notice of retrenchment, his termination which took place on January 14, 1997 was illegal and therefore, he set aside the termination and passed the order not only for reinstatement but also for absorbing him in the vacancy which occurred due to one Kamble A. P. not being in service. It is this order which has been assailed in this Writ Petition.
7. It is contended on behalf of the Petitioner company that it is a Government company. There are Rules and Regulations for recruitment as also for creation of posts. It is further contended that there was no relationship of employer and employee between the Petitioner and Respondent No. 1. Respondent No. 1 was employed to do a particular work i.e. preparing tea etc. collectively by the company’s employees working in Ghatkopar establishment of the company and they used to pay to the workman. It is further submitted that even if it is taken that Respondent No. 1 had completed 240 days in a year, since he had been irregularly coming to the establishment, his services cannot be made permanent, that too without there being evidence for vacancy available in the establishment.
8. As against this, the learned counsel for Respondent No. 1 tried to support the order passed by the learned Presiding Officer of the Central Government Industrial Tribunal.
9. I have perused the Judgment as well as the evidence led before the Tribunal. At the outset, it should be mentioned that the learned Presiding Officer of the Industrial Tribunal did not take into consideration the aspect of there being absence of proof of Respondent No. 1 having been employed by the company and that too 240 days within one year preceding the alleged termination. Although a finding to that effect was given, it is not at all based on tbe evidence and therefore it is perverse.
10. Next, only a reference was made for considering whether a termination was proper or otherwise and what relief the workman was entitled to with regard to the termination. The learned Presiding Officer exceeded his jurisdiction by directing not only reinstatement but also continuing the workman in the vacancy without knowing whether there was really a vacancy and whether that vacancy was required to be filled in or otherwise.
11. It is undisputed that in 1987 the workman was casually employed for a limited period on three occasions. Thereafter he worked as casual worker on part time basis upto November 1992. However, after November 1992, there is nothing on record to show that the Respondent No. 1 workman was employed by the company. It was the case of the Respondent No. 1 workman that he was employed by the company and was doing the work of maintenance and cleaning, but there is no evidence in support to that effect. He also stated in his evidence that he was employed by the company and had relied on certain vouchers which were prior to November 1992 and also certain certificates produced by company’s witness Dobhal. These vouchers also never indicated that the payments that were made to Respondent No. 1 workman were by the company in order to show that the workman was employed by the company.
12. The evidence of the company’s witness is to the effect that there were 30 employees working in Ghatkopar establishment of the company. They used to contribute Rs. 25/- per month per person. It was collected from them so that they used to spend for purchasing the material required for preparing tea and Respondent No. 1 was asked to prepare tea for which he was being paid under the vouchers which the witness Dobhal had produced. There is further evidence to show that the company used to make reimbursement initially to the extent of Rs. 500/- and subsequently to the extent of Rs. 850/- per month by way of reimbursement to the employees on account of the expenses they incurred for tea etc.
13. This aspect has also been admitted by the workman. From these facts, therefore, it is clear that Respondent No. 1 was engaged by the company’s employees and not by the company at any time. The evidence further indicates that Respondent No. 1 workman used to work only half an hour. It is difficult to digest that the company would employ Respondent No. 1 for doing such work on regular basis or otherwise. Probably having seen the quantum of work of cleaning etc. which was of very minor nature, the company did not continue him in the employment after November 1992. Under these circumstances, in fact, there was no evidence before the learned Presiding Officer to hold that Respondent No. 1 was directly employed by the company so as to establish the relationship of employer and employee.
14. The learned Presiding Officer has given the benefit of the provisions of Section 25-B of the Industrial Disputes Act. The learned Presiding Officer held that it was established that Respondent No. 1 had worked with the company for 240 days in a year preceding to the alleged termination dated January 13, 1997. However, this finding is not based on any material on record. The vouchers produced do not indicate that the payments under them were made by the company. The evidence, on the contrary, indicated that the payments under the vouchers were made by Dobhal, who was an employee of the company. Further, it is an admitted position that since after 1992 Respondent No. 1 was paid in cash. Under the circumstances, the finding arrived at by the Industrial Tribunal that Respondent No. 1 workman has put in service of 240 days in a year preceding to the alleged termination was not cogent and proper.
15. Apart from this, the Petitioner is a Government Establishment the employment in which is governed by the Rules and Regulations. As per those Rules and Regulations the employment for any post has to be through the Employment Exchange. It is not the case of the workman that his employment was made through Employment Exchange. Therefore, his entry was by backdoor which cannot be permitted and he has to go by the same door as has been held by the Apex Court in a number of decisions, particularly in the case of Ashwani Kumar and Ors. v. State of Bihar and Ors. . As in the case of Delhi Development Horticulture Employees Union v. Delhi Administration, Delhi and Ors., , even the benefit of having worked for 240 days was not given to the workers who were employed under Jawahar Rojgar Yojana for their continuation in service.
16. Under these circumstances the view taken by the Central Government Industrial Tribunal was not based on evidence before it and was also not supported by any legal position and the same, therefore, deserves to be set aside.
17. The Writ Petition is, therefore, allowed; the order passed by the Central Government Industrial Tribunal on June 22, 1999 in Reference No. CGIT-2/84 of 1998 is hereby set aside.
