- (1.) The petitioner has filed the present writ petition under Article 226/227 of the Constitution of India on 21.2.2004 against the respondents with a prayer that by an appropriate writ, order or direction the judgment and award dated 30.9.2003 (Annexure 3) passed by the learned Judge, Labour Court, Jodhpur (respondent No. 2) by which the learned Labour Court (respondent No. 2) after answering the reference accepted the claim filed by the respondent No. 1 (Lachcha Ram) and held that non-regularisation of services of respondent No. 1 even after taking the work of Chowkidar/IVth class employee from the respondent No. 1 and not to give him benefit of that post was not proper and thus, the Labour Court ordered that if the work of the petitioner was found otherwise suitable, benefit of regularisation on the post of Class IV employee be given to him.
(2.) It arises in the following circumstances : (i) That the appropriate Government vide notification dated 23.3.2002 made a reference to the respondent No. 2 to the effect whether non-regularisation of services of respondent No. 1 (Lachcha Ram) and non-grant of pay-scale to him even after taking work of the post of part time Chowkidar was proper and justified and if not what relief the respondent No. 1 was entitled to. (ii) That on the above reference, notices were issued by the respondent No. 2 to the parties and the respondent No. 1 filed claim petition (Annexure 1) stating that he was appointed as cook/Chowkidar on part time basis in Social Welfare Hostel run by the petitioner on 1.1.1999 and the respondent No. 1 was performing all the duties which were performed by a regularly appointed Chowkidar, but he was being paid a sum of Rs. 600/- per month as salary and thus, the case of the respondent No. 1 was that he was entitled for regularisation and pay scale of the post of Chowkidar and other benefits. (iii) That reply (Annexure 2) to the claim petition was filed by the petitioner stating that the provisions of Industrial Disputes Act, 1947 (hereinafter referred to as the Act of 1947) were not applicable to the facts of the present case as the respondent No. 1 was not appointed by the petitioner and in fact he was appointed by the Mess Committee and the payment was also being made to him by the said Samiti and he was not working under the control and supervision of the petitioner, therefore, there existed no relationship of employer and workman between the petitioner and respondent No. 1 and furthermore, cooks were not the employees of the Department and hence, no case was made and claim petition be dismissed. (iv) The learned Labour Court (respondent No. 2) through judgment and award dated 30.9.2003 (Annexure 3) accepted the claim of the petitioner inter alia holding : (i) that the employee appointed by Mess Committee would be treated as employee appointed by the Department as this point had earlier been decided by this Court in S.B. Civil Petition No. 619/99, decided on 7.4.2003 (Daya Ram and others v. State of Rajasthan and others). (ii) That because of the above reason, there existed relationship of workman and employer between the respondent No. 1 and the petitioner and since he was being paid a sum of Rs. 6000/- per month as salary, though the work which was being taken from him was that of Chowkidar, meaning thereby that he was not being paid salary of Chowkidar (class IV employee), that was not justified. (iii) That from the evidence, it was also established that the respondent No. 1 was working for more than 8 hours in a day and therefore, the respondent No. 1 could not be termed as part-time employee, but was regular employee and thus, he was entitled for regularisation and was entitled to get the salary of Class IV employee and other benefits. (v) In this writ petition, the judgment and award dated 30.9.2003 (Annexure 3) have been challenged.
(3.) In this writ petition, the following submissions have been made by the learned counsel for the petitioner : (i) that there was no relationship of workman and employer between the respondent No. 1 and petitioner as the respondent No. 1 was not a workman as defined in Section 2(s) of the Act of 1947 and the petitioner was not employer as defined in Section 2(g) of the Act of 1947 and therefore, the provisions of Act of 1947 would not be applicable to the case of respondent No. 1. (ii) that the services of respondent No. 1 were governed by the Hostel Management Rules, 1982 (hereinafter referred to as the Rules of 1982) and the Rules of 1982 have provided that cook would not be made available by the Department and therefore, from that point of view also, cooks were not the employees of the petitioner and hence, the respondent No. 1 was not entitled to any relief. (iii) That the learned Labour Court had no jurisdiction to direct regularisation of services of employees and from that point of view also, the findings of the learned Labour Court (respondent No. 2) should be quashed and set aside and this writ petition should be allowed.;