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Gujarat High Court
Judgename :D.C.Srivastava
EXECUTIVE ENGINEER ROADS AND BUILDING DEPARTMENT - Appellant
Versus
RAMESHKUMAR K.BHATT - Respondent
S.C.A. 9232 of 1998
Decided On : 08/01/1999
It cannot be said by any stretch of imagination that the power of discharge was exercised in a mala fide manner by the petitioner nor it can be said that the power of discharge was misused. The order of appointment also cannot be said to have been made in colourable exercise of power. The respondents appointment was made strictly in accordance with the Government Resolution contained in Annexure-B to the writ petition. Since the work could not be completed by 28.2.1982, the respondents services were continued till 31.8.1982. Since on 31.8.1982 it was found by the petitioner that the grants were stopped and few divisions had to be closed that the order of discharge against the respondent was passed by the petitioner. No mala fide has been attributed while passing the order of discharge nor any such mala fide is reflected prima facie from the material on record. The order of appointment cannot be said to have been passed in colourable exercise of power. The terms and conditions in the letter of appointment Annexure-C indicate that it was issued in a bona fide manner keeping in view of the Government Resolution contained in Annexure-B.
There is also nothing on record to indicate that the petitioner misused the power and discharged the respondent. Thus, if the power was not misused nor is vitiated by malafide nor the power to appoint suffers from the vice of colourable exercise of power, the impugned order of discharge could not be quashed by the Labour Court and as such the impugned award becomes patently illegal and it cannot be sustained. There was no justification for the Labour Court to apply Sec. 25F of the Act on the facts and circumstances of the case before it. Section 25F of the Act was hardly applicable to an employee who was appointed for a fixed term. If this is so, then the order for 50% backwages also becomes contrary to law with the result that the entire award becomes illegal. It is therefore difficult to sustain the impugned award. It has, therefore, to be quashed.
[Para 9]
( 1 ) THE petitioner through this writ petition has challenged the award dated 17. 6. 1998 passed by the Labour Court, Rajkot and has prayed for quashing of the said award being illegal.
( 2 ) THE brief facts giving rise to this petition are as under:-
( 3 ) THE State of Gujarat, Roads and Building Department by its letter sanctioned one Division and four sub-divisions on ad hoc basis upto 28. 8. 1982. In pursuance of this order the respondent was appointed as `tracer on purely temporary basis from 18. 12. 1981 to 28. 8. 1982 in the Panchayat Sub division, Jasdan and he resumed duties on 19. 12. 1981. Since the posts were created on ad hoc basis with a view to complete the work within a prescribed period for rural roads, the respondent was appointed under that Scheme. Subsequently the Panchayat had no need to continue the respondent because the Government stopped paying grant. Consequently, the respondent was removed from service. In the appointment letter it was clearly mentioned that the appointment of the respondent was purely on ad hoc basis and after expiry of the term his services can be terminated at any time without giving any reason or notice. One division and three sub-divisions were closed by the Government with effect from 31. 8. 1982. The `tracers who were appointed on regular basis were accommodated on the post of the petitioner. Consequently, the services of the respondent were no more required. The respondent raised belated industrial dispute in the year 1988. The said industrial dispute was referred to the Labour Court which rendered the impugned award directing reinstatement of the respondent with 50% backwages. It is this award which is challenged in this writ petition.
( 4 ) THE writ petition was admitted on 6. 4. 1999. The respondent was served. At the initial stage no counter affidavit had been filed by him. As such the learned counsel for the petitioner and the respondent were heard. The learned counsel for the respondent after reading the entire award contended that the award is prima facie legal, hence it requires no interference. On the other hand, the learned counsel for the petitioner contended that the award is illegal because the Labour Court did not take into consideration the fact that the appointment of the respondent was on ad hoc basis for a fixed term and a person appointed for a fixed term could not raise industrial dispute nor he could say that the provisions of Section 25-F of the Industrial Disputes Act were violated.
( 5 ) THE first point for consideration in this petition is whether the respondent was appointed for a fixed period or that simply because he worked for more than 240 days, his termination was wrongful and he is entitled to be reinstated with backwages at the rate of 50%. The view of the Labour Court that the respondent was not appointed for a fixed term is contrary to the evidence on record and as such the award can be said to be perverse on this point. If a finding is given ignoring the material evidence or overlooking the material evidence, it can be said to be perverse. Likewise, if a finding is given misinterpreting the documentary evidence, such finding can also be said to be perverse finding. From Annexure-B dated 16. 6. 1981 it is clear that through this Government Resolution new Divisions and Sub-Divisions under administrative supervision of the Panchayat (Road and Building) Circle were approved on ad hoc basis and posts were also approved on ad hoc basis upto 28. 2. 1982. Three posts of Junior Engineer/supervisor/overseer inter alia were sanctioned. The post of `tracer falls in the category of Junior Engineer. Annexure-C is the appointment letter dated 16. 12. 1981 to the petitioner. Certain conditions were imposed in this appointment letter. The first condition was that the appointment of the respondent was limited only for the period upto 28. 2. 1982. It was further mentioned that as his services were ad hoc he has no right over the services.
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