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SCA/15533/2008 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 15533 of 2008
=========================================================
GOVERNMENT
ADARSHANIVASI SCHOOL - Petitioner(s)
Versus
RAMANBHAI
JETHABHAI PANDYA - Respondent(s)
=========================================================
Appearance
:
MR
AL SHARMA AGP for
Petitioner
NOTICE SERVED for Respondent
MR HARSHAD K PATEL for
Respondent
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 05/04/2011
ORAL
ORDER
1. Heard
learned AGP Mr.A.L.Sharma appearing on behalf of petitioner –
School and learned advocate Mr.H.K.Patel for respondent.
2. In
present petition, petitioner – School has challenged award
passed by Labour Court, Himmatnagar in Reference No.44 of 1998, dated
31.12.2007 whereby the Labour Court has partly allowed the reference
setting aside termination order and granted reinstatement with
continuity of service with 20% back wages of interim period.
3. Learned
AGP Mr.Sharma has raised contention before this Court that respondent
was appointed on 30.1.1988 by petitioner on contingency payment as
per Government Resolution and he was getting Rs.580/- for working
days of 29 days. The respondent was appointed as per Government
Resolution and said power was withdrawn by Government and therefore,
petitioner – school cannot continue the workman in service
because power has been withdrawn by State Government.
3.1 Learned
AGP Mr.Sharma also submitted that respondent workman was not
appointed after following due recruitment procedure and this school
has been maintained by State Government as per their Rules and this
being not a commercial establishment and respondent was appointed as
Assistant Cook in the year 1994. Before Labour Court, detailed reply
was submitted by petitioner vide Exh.17 and certain documents have
also been produced on record by petitioner and one witness Acharya
Maniben Jivabhai Katara was examined vide Exh.54 and also produced
order passed by the Director of Schedule Caste, Welfare Department
vide Exh.56. He also submitted that workman has not completed 240
days continuous service and he has also not proved it, even though
Labour Court has committed gross error in setting aside termination
order. He further submitted that he was appointed on contingency and
entire work of cook had been handed over by Government to Contractor
on contract basis. Therefore, if respondent workman is prepared to
work under the Contractor, then on certain conditions he may be
reinstated in service. He also submitted that these facts have been
disclosed by petitioner vide Exh.15 and 17. But this aspect has not
been considered by Labour Court. He further submitted that Labour
Court has committed gross error in granting 20% back wages of interim
period without any justification and workman has not proved
unemployment of entire period. He also submitted that when workman
was not appointed after following recruitment procedure in Government
school, then he is not entitled any relief from Labour Court. In
short, his submission is that Labour Court has committed gross error
in granting relief in favour of respondent.
4. I
have considered submissions made by both learned advocates appearing
on behalf of respective parties and also perused award passed by
Labour Court, Himmatnagar. The facts are not much in dispute between
the parties. The respondent workman was appointed on contingency work
paying wages of Rs.580/- for 29 days working and the work of cooking
has been handed over to contractor and now, it has been continued on
contract basis. The kitchen of the school is continued on contract
basis. According to petitioner, as per Government Finance Department
resolution dated 10.1.1988, the respondent workman was appointed so
long on the post of Assistant Cook of regular appointment is made by
Government. Therefore, he was allowed to work on hour basis and
receiving salary from petitioner. The respondent has to work as
Assistant Cook, Safai Kamdar, Chowkidar and Hamal. These are the work
of contingency was being done by respondent – workman.
According to petitioner, no employee or person can be recruited by
school without following due procedure of Recruitment Rules. The
petitioner has not issued any appointment orders in favour of
respondent workman. But vide Exh.21 to Exh.44, advance receipts have
been produced by petitioner for a period of 1994-1995 and 1995-96
wherein 240 days continuous service has been established. These
documents have been supported by evidence of workman as well as
evidence of witness of petitioner – Acharya Maniben J. Katara.
Therefore, Labour Court has come to conclusion that though 240 days
continuous service has been established on the basis of documents
vide Exh.21 to Exh.44, even though Section 25(F) of I.D.Act,1947 has
not been followed and same has been violated and workman is covered
by definition of Section 2(s) of I.D.Act,1947 and considering the
fact that mandatory provisions have been violated, then order of
termination is held to be ab-initio void and considering evidence of
petitioner that now work of kitchen has been handed over to
contractor and that kitchen is continued on contract basis,
therefore, workman if required to be reinstated by petitioner, then
he should have to be reinstated under contractor. However, Labour
Court has considered interim period being more than 10 years, workman
remained without work and therefore, only 20% back wages has been
granted in favour of workman.
5. Looking
to records, advance receipt has been produced by petitioner, evidence
of Acharya Maniben J. Katara vide Exh.54 and evidence of workman,
Labour Court has rightly come to conclusion that workman has
established 240 days continuous service and undisputedly, Section
25(F) of I.D.Act,1947 is not followed which renders the termination /
retrenchment ab-initio void and accordingly, relief of reinstatement
under contractor has been rightly granted with 20% back wages. For
that, Labour Court has not committed any error which requires
interference by this Court. The Labour Court has given detailed
reasons in support of its conclusion and Labour Court has applied the
mind and appreciated oral and documentary evidence. For that, finding
of fact recorded by Labour Court cannot consider to be baseless and
perverse. This Court is having a very limited jurisdiction under
Article 227 of the Constitution of India, this Court cannot act as an
appellate authority and therefore, according to my opinion, Labour
Court has not committed any error which requires interference by this
Court while exercising powers under Article 227 of the Constitution
of India. Hence, there is no substance in present petition.
Accordingly, present petition is dismissed with no order as to costs.
Notice is discharged.
[
H.K.RATHOD, J. ]
(vipul)
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