Point of Law: Rule 33 which prohibits an employee from taking employment elsewhere. Indeed, it was not even the pleaded case of the management that during the period of suspension, the appellant had left the Headquarter without prior approval of the Chief Executive Officer and thereby disentitling her from getting subsistence allowance or that during the intervening period she was gainfully employed elsewhere

JUDGMENT :

1. By filing this petition, the petitioner-Dhanera Nagarpalika has prayed to quash and set aside impugned award dated 26.8.2008 passed by the Presiding Officer, Labour Court, Palanpur, in Reference (LCP) No.39 of 2001.

2. As per the facts stated in the petition, the respondent was working as a dally wager as an alternative arrangement for limited period. The respondent stopped coming to the petitioner Dhanera Nagar Palika from 26,02.2000 on his own and thereafter did not approach for more than eight months for any work,

2.1 The respondent thereafter raised dispute and the same was referred to the Industrial Court by the Assistant Labour Commissioner vide order dated 02.07.2001. The Industrial Court therefore registered the same as Reference (LCP) No. 39 of 2001 and issued notice to the petitioner on 06.12.2002.

2.2 The respondent, second party submitted his statement of claim on 07.03.2002 inter alia contending that the respondent, while on duty on 24.02.2000 fell down and sustained injuries on the spinal cord. It was contended that the respondent was admitted in the Civil Hospital, Ahmedabad and was discharged from the Civil Hospital on 29.06.2000. It was further contended that on 01.07-2000 and on 02.07.2000, the respondent approached the petitioner Nagar Palika to resume his duties but he was not allowed to resume the duties. In the aforesaid facts, it was alleged and contended that the services of the respondent was retrenched illegally by an oral order dated 01.07.2000 and petitioner employed another person in place of the respondent. Thus, the petitioner has violated the provisions of section 25(F), (G) and (H) of the Industrial Disputes Act. It was prayed in the said statement of claim that the respondent may be reinstated with full back wages and other ancillary benefits.

2.3 The petitioner tendered reply and denied all the allegation and averments made in the statement of claim and submitted that the respondent was working as a daily wager as alternative arrangement and abandoned the duties from 24.02.2000. It was also submitted that the State Government has directed all the Nagar Palikas not to employ any person without following selection process under the title of daily rated employee on any post as directed by the Hon’ble Gujarat High Court in various decisions.

2.4 It is also stated that both the parties produced documentary evidence and led oral evidence in support of their case. However, the Ld. Presiding Officer, Labour Court, Palanpur vide award dtd. 26.08.2008 allowed the reference partly by directing the petitioner to reinstate the respondent with continuity of service despite the fact that the respondent himself stopped attending the daily waged service and now the State Government has put ban on employing any person as daily wager upon relying the various decisions of Hon'ble Gujarat High Court and also Apex Court of the country. It is stated that in the above set of facts and circumstances, the petitioner is constrained to file present petition.

3. Heard learned advocate, Ms.Krishna Desai, for Mr.I.M.Thakkar for the petitioner and learned advocate Shri B.K.Oza for the respondent-workman.

4. Learned advocate, Ms.Krishna Desai, for Mr.I.M.Thakkar for the petitioner has vehemently submitted that the respondent herein was a daily wager and since 24.2.2000, he did not present himself and stopped coming on duty. She has submitted that the stand taken by the workman is to the effect that whenever he tried to resume his duty, he was orally directed not to come. She has also submitted that the workman has reported for duty on 1.7.2000. While inviting the attention of the Court to the documentary evidence, she has submitted that in view letter dated 7.8.2000, whereby the workman has submitted that he got injury on 28.2.2000 and the doctor has opined for complete bed rest for six months. According to her submission, since he had to remain at home due to such illness from 28.2.2000 for six months, the period woul