MORI MANHARSINH AMARSANG Vs. SURENDRANAGAR JOINT NAGARPALIKA

JUDGEMENT

(1.) Heard learned advocate Mrs. D.T. Shah for the petitioner and Ms. Hingorani for M/s. Thakkar Associates for the respondent. In this petition, the petitioner has challenged the award made by the labour court, Surendranagar Exh. 10 in Reference No. 334 of 1992 dated July 15, 1997 wherein the labour court has rejected the said reference. Learned advocate Mrs. Shah raised the contention that the service of the employee concerned was terminated on 2nd July, 1992, he was working since many years, his service was terminated by the respondent without complying with the provisions of section 25F of the ID Act, 1947. According to her submission, after termination of the service of the petitioner, two other persons were recruited by the respondent namely Shri Vikramsinh Rana and Kishorbhai Darji and, therefore, the respondents have committed breach of section 25G and 25H of the ID Act, 1947. She also submitted that to prove the periodical appointments, appointment orders were not produced by the respondent. She also emphasized that section 2(oo) (bb) is not applicable to the facts of the present case as this is not the appointment on the basis of period and it is also not a case of renewal of contract, therefore, section 2(oo) (bb) of the ID Act, 1947 are not applicable to the facts of the present case. She has also submitted that before the labour court, the workman has not pressed for back wages and, therefore, she is not pressing for the back wages. She has also relied upon the decision of this court in Special Civil Application No. 3734 of 1997 dated 9th October, 1997 and Special Civil Application No. 5458 of 1997 and 765 of 1997 dated 25th November and December, 1997. By placing reliance on the said decisions, it was submitted by her that the workmen concerned in those cases were having the similar situation and the reinstatement was granted by this Court. Except these submissions, no other submission was made by Mrs. D.T. Shah before this Court.

(2.) On the other hand, learned advocate Ms. Hingorani appearing for the respondent has supported the award made by the labour court by submitting that the findings recorded by the labour court are quite just and proper and based on evidence. She also submits that the findings are not perverse and baseless. She also submits that the petitioner was appointed on periodical basis and such facts were admitted by the workman in his deposition and he was not appointed after following due process of law and, therefore, his appointment itself was illegal and, therefore, section 25F is not applicable and, therefore, there is no substance in the petition and the same is required to be dismissed.

(3.) I have considered the submissions made by the learned advocates for the parties. I have also perused the award made by the labour court and the decisions referred to and relied upon by Mrs. Shah before this Court. Admittedly, the services of the workmen were terminated on 2nd July, 1992. Workman was examined before the labour court at Exh. 7. Admittedly, the workman has not pressed the claim of back wages in his deposition. According to his evidence, he was working as a clerk in the house tax department. It was admitted by the workman in his cross examination that he was appointed periodically by giving each month order in his favour. After termination of his services, two other persons were recruited namely Vikramsinh Rana and Kishorbhai Darji. On behalf of the respondent, one Jayendrasinh Jhala was examined at Exh. 9. It was deposed by him before the labour court that the workman was appointed by one months' order periodically and no post is vacant with the respondent. Service of the workman was terminated by a flux of time as indicated in the order of appointment. Appointment orders were not produced on record. Said witness for the respondent was not aware whether new persons were recruited in the house tax department subsequently. On the basis of this evidence of the petitioner and the respondent, considering the admission made by the workman in his cross examination, the labour court has come to the conclusion that the workman was appointed periodically by one months order. It was also observed by the labour court that from the evidence of the workman, it is not becoming clear as to how many years, the workman was working. It is also observed by the labour court that no evidence has been produced by the workman as to whether he has completed 240 days continuous service or not. In view of these facts, when the workman was appointed periodically by one months order and his service came to an end by afflux of time as indicated in the order of appointment, the labour court has come to the conclusion that in view of section 2(oo) (bb) of the ID Act, 1947, said termination is not amounting to retrenchment. Ultimately, once, since the termination is not amounting to retrenchment, then, section 25G and 25H are not applicable to the facts of this case. Labour court further observed that the petitioner was appointed without following due process of law and such illegal appointment cannot be regularized by giving reinstatement to such a workman, therefore, workman who is having back door entry cannot be granted reinstatement. On the basis of such conclusions based on the admission of the workman himself, the labour court rejected the reference.