ORDER
Abhay M. Naik, J.
1. This order will govern disposal of above mentioned two writ petitions.
2. Petitioner Corporation appointed respondent No. 2 as Chowkidar for 89 days on 2-4-1992. Again he was appointed for 89 days on 2-7-1992 and thereafter on various occasions after giving a break of one day. Thus, he continued upto 22-6-1996. Case of the petitioners is that cement became available in open market which was earlier provided by the petitioner Corporation. Since, it became easily available in the open market there was no need to keep respondent No. 2 as Chowkidar. Respondent No. 2 raised a dispute under Labour Laws. His statement of claim is contained in Annexure P-3, which was duly replied by the petitioners. Labour Court, Jabalpur after recording the evidence, directed the petitioners to reinstate respondent No. 2 in the services. of the Corporation within one month from the dale of proclamation of award dated 1-12-2001.The same is contained in Annexure P-l and is under challenge in Writ Petition No. 992/02.
3. Learned Labour Court denied the back wages to the respondent No. 2, against which Writ Petition No. 1945/2002 has been preferred by him.
4. Shri Ramesh Shrivastava, learned Counsel for the petitioners in W.P. No. 992/02, contended that the provisions of Industrial Disputes Act were not applicable and the Labour Court has committed an illegality in passing the award in favour of respondent No. 2. According to him, the case of the petitioner is covered by the M.P.I.R. Act and the impugned award is liable to be quashed.
5. Petitioners arc unable to substantiate this plea. Moreover, the same does not appear to have been raised, specifically in the Court below. On the merits also it is found that the petitioner Corporation is not mentioned in the Schedule contained in M.P.I.R. Act. In view of nature of work and strength of employees, the petitioner Corporation is found to be an industry for the purposes of Industrial Disputes Act.
6. Contention of Shri Shrivastava, learned Counsel for the petitioner that respondent No. 2 being a seasonal worker was not governed by the provisions of Industrial Disputes Act is also without merit. In Annexure P-l, which has been issued by the petitioner Corporation, it has been clearly mentioned that respondent No. 2 was engaged by it continuously as a Chowkidar from the year 1992 to 1996. Thus, the provision of the Industrial Disputes Act have been rightly applied by the learned Labour Court.
7. Shri Shrivastava, learned Counsel for the petitioner further contended that the cement used to be provided by the petitioner Corporation, since it was not available in the open market. It is contended by him that on account of cement becoming available later on in the open market, services of respondent No. 2, as a Watchman, were not required. Learned Labour Court has clearly found that there is no material on record to establish that the contractors were required to purchase the same at their own from the vendors. Petitioners did not produce and prove the contentions that the contractors themselves were subsequently required to purchase the cement at their own. In the absence of such evidence the Labour Court cannot be said to be at fault, in holding that respondent No. 2 is entitled to reinstatement.
8. Shri Shrivastava, learned Counsel for the petitioner further contended that respondent No. 2 was not retrenched and compliance of Section 25F of Industrial Disputes Act was not required. It is true that no written order for removal of respondent No. 2 has been placed on record. However, respondent No. 2 is found to have worked on the post of Watchman from the years 1992 to 1996, as revealed in Annexures P-1 to P-12. Considering this, he could not have been removed without making compliance of Section 25F of the Industrial Disputes Act.
9. Shri Shrivastava, learned Counsel for the petitioners submitted that respondent No. 2 used to be appointed for 89 days and no right accrued in his favour. Document contained in Annexure P-l was issued by the petitioner Corporation, certifying thereby that respondent No. 2 has worked continuously on the post of Watchman from the years 1992 to 1996.
10. Reliance of the learned Counsel for the petitioners on the decisions, in the cases of State of Rajasthan and Ors. v. Rameshwar Lal Gahlot reported as , M. Venugopal v. The Divisional Manager, Life Insurance Corporation of India, Machilipatanam, Andhra Pradesh and Anr. reported as and Krishi Upaj Mandi Samiti Dabra, District Gwalior and Anr. v. Presiding Officer, Labour Court No. 1, Gwalior and Ors. reported as 2001(3) M.P.H.T. 24, is also of no avail, since the facts of the present case are distinguishable. Thus, none of the contention of Shri Ramesh Shrivastava, learned Counsel for the petitioner, is liable to be accepted.
11. Shri K.S. Wadhwa, learned Counsel for the petitioner in W.P. No. 1945/02 contended that the petitioner on account of having been found entitled to reinstatement, has to be awarded back wages.
12. Considered the submissions and perused the record.
13. Petitioner in W.P. No. 1945/02 has not been able to show that he established before the Labour Court that he has not been gainfully employed during the relevant period. It is a trite law, as held repeatedly by the Apex Court that the question of back wages depends on the facts and circumstances of each case and it is not necessary to award back wages, whenever reinstatement is directed.
14. Considering the above legal position and further in the absence of any material, this Court declines to interfere in the matter of not awarding the back wages.
15. In the result, W.P. No. 992/02 and W.P. No. 1945/02 both are hereby dismissed. No order as to costs.