Point of Law: Since litigious employer has gone back and forth from this Court before the Single Judge to the Division Bench and then Supreme Court and back on two occasions rendering the workman without the fruits of litigation for more than 11 years in peculiar facts thereof Court did not accept even the suggestion to award lumpsum compensation in lieu of reinstatement therefore the said decision is also of no any help to the petitioner.

JUDGMENT :

1. By way of this petition the petitioner – workman has challenged the order passed by the Presiding Officer, Labour Court, Ahmedabad dated 30.04.2018 in Reference (T) Case No.9 of 2015 allowing the Reference partially awarding Rs.50,000/- lumpsum in lieu of reinstatement.

2. According to the case of the petitioner – workman he had worked as Rojamdar Driver with the Principal Chief Conservator of Forest on a daily wage of Rs.183/- per day payable at the end of the month. It is asserted that he had completed 240 days in preceding 12 months from the date of his termination. It is further submitted that on 01.09.2012 his service was terminated orally without any notice, notice pay or retrenchment compensation. It is further asserted that even no departmental inquiry is conducted, and therefore, he approached the office of the Assistant Labour Commissioner. It is further asserted that the office of the Principal Chief Conservator of Forest is still working and he has been replaced by some new man whereas he is without any job and he is not getting the same, despite efforts. He had shown his willingness to go for work, which was offered. In short, it is claimed that the action of oral termination from 01.09.2012 is in breach of Sections 25F and 25G as also Section 25H of the Industrial Disputes Act, 1947 (hereinafter referred to as ‘the Act’). On notice of Reference, respondent filed written reply vide Exh.8. It is asserted in it that he was working as a daily wager for miscellaneous work and he was never on monthly wage. It is further asserted in the reply that the post of Driver is classified as Class III post under the Recruitment Rules of the State Government enacted under Article 309 of the Constitution of India. So far as post of Peon is concerned, it is classified as Class IV. It is further asserted in it that the petitioner – workman is not regularly recruited under the Recruitment Rules but he has worked as Rojamdar daily wager, and therefore, he cannot be equated with the regular employees. It is further asserted that he has never been terminated but he himself has abandoned the said work from 01.09.2012 without informing anyone. It is further asserted that while conciliation was going on he was offered to join the work as daily wager as per the prevailing policy of the State through outsourcing but he refused. It is further asserted that no one can afford to sustain without earning, and therefore, it can be safely presumed that he must have been gainfully employed during the said period.

2.1 After leading evidence on both the sides and production and proof of certain documents, the Labour Court heard the learned advocates for the parties and passed the impugned order whereby in lieu of reinstatement lumpsum compensation of Rs.50,000/- has come to be awarded.

3. Shri U.T. Mishra, learned advocate for the petitioner, vehemently submitted that when Labour Court held that the petitioner has from 01.06.2010 to August, 2012 completed 284, 302 and 73 days, same has not been controverted by the respondent and on the contrary it establishes that the petitioner – workman has worked as Rojamdar, and therefore, it is concluded by the Labour Court that the respondent – Institution has failed to prove by cogent evidence that they have followed Sections 25F, 25G and 25H of ‘the Act’ or for abandonment of work by the petitioner any procedure or proceedings are initiated, and therefore, it is submitted that once it is not proved through evidence that the provisions of ‘the Act’ are followed, the action of termination has to be held as illegal and reinstatement should have been ordered.

3.1 It is further submitted, drawing attention of the Court to the deposition of the petitioner – workman, more particularly paragraph 6 thereof at page 22 where in examination-in-chief on affidavit it is asserted that in place of the petitioner new persons have been recruited, it is submitted that the action of the respondent is in violation of the