Point of Law: Workman - Order of Reinstatement - Labour Court has not committed any error of law and facts in passing order of reinstatement of workman as a daily wager “Sweeper”.

JUDGMENT :

1. Being aggrieved and dissatisfied with award dated 29.2.2009 passed by the Industrial Tribunal, Bhavnagar in Complaint (IT) No.4 of 2004 filed in Reference (IT) No.65 of 2002, by which the workman was ordered to be reinstated as a daily wager “Safai Karmachar” with 50% backwages on the ground that there was a breach of Section 33 of the Industrial Disputes Act, 1948, Lathi Nagar Palika has filed present petition on the ground that the order of reinstatement of a daily wager was not justified; the order of payment of 50% backwages is also not warranted in the facts and circumstances of the case and Reference (IT) No.65 of 2002 had become defunct in view of “No Instruction Purshis” given in 2006, which was not taken into consideration by the Industrial Tribunal, while passing the impugned order.

2. The parties are referred to in this order as “employer” and the “workman” respectively.

3. The employer has contended that the workman was admittedly a daily wager and was never recruited by following the due procedure as prescribed in the Rules. It is also contended that the workman has not worked for 240 days in a year. It is further contended that the Tribunal has committed an obvious error in finding that burden of proof to prove attendance of 240 days is on Nagar Palika. It is also contended that there was no proof that the workman has worked for more than 8 years as daily wager. According to the employer, there was no justification for passing the order of reinstatement and backwages. It is also contended that the Tribunal has misread the judgment of the Full Bench of this Court in the case of Amreli Municipality and judgment of the Apex Court in the case of State of Karnataka v. Uma Devi.

4. It is also contended that the workman was admittedly a daily wager and had no right to propose that there was no question of passing any order of backwages since he has not worked. According to the employer, the services of the workman was brought to an end in the year 2003, whereas the complaint has been made by the workman in the year 2004. It is also contended that Reference (IT) No.65 of 2002 was never seriously contested right from 2002 and “No Instruction Purshis” was submitted as back as in the year 2006, therefore, there was no justification on the part of the Tribunal to proceed with hearing of the complaint in the year 2009 and to pass impugned order of reinstatement and backwages. On all these grounds, it is contended by the employer that order passed by the Tribunal is erroneous and same deserves to be set aside and, accordingly, prayed to allow present petition by setting aside the impugned order of the Tribunal.

5. Heard Ms.Khyati Hathi, learned advocate for the petitioner- Nagar Palika and Mr.U.T.Mishra, learned advocate for the respondent-workman through video conferencing.

6. Ms.Khyati Hathi, learned advocate for the petitioner submitted that same facts, which are narrated in the petition and has submitted that the complaint was made by the workman in 2004. While inviting the attention of the Court to the written statement filed by the Nagar Palika before the Tribunal in Reference (IT) No.65 of 2002 in Complaint No.4 of 2004, wherein the same grievance has been raised, a specific averment is made that the workman has worked for 173 days only. She has also invited the attention of the Court to the fact, stated in the written statement, that workman has worked for 17 days in August, 20 days in September, 24 days in October and 2 days in November 2003 and, therefore, the version of the workman regarding his termination on 6.8.2003 is not tenable. She has also invited the attention of the Court to the averment made in written statement that the Labour Court or the Tribunal cannot direct the Panchayat or Nagar Palika to make order of permenancy. She has also submitted that demand of workman was premature. While inviting the attention of the Court to the deposition of the workman, she has submitted that the workman has adm