Point of Law: there is a breach of Section 25-F of the I.D. Act and as there is a delay of 11 years in preferring the reference, instead of granting reinstatement a lump sum amount as full and final settlement will serve the end of justice

JUDGMENT :

1. The present petition is filed under Articles 16, 226 and 227 of the Constitution of India for the following prayers.

a. Be pleased to quash and set aside the award passed by the Learned Judge of Labour Court, Dahod in Reference I.C.B. No.59 of 2008 dated 6-11-08 by which the present petitioners directed to reinstate the workman – Orig. respondent with 40% of back wages, other eligible benefits, with continuity of the services and pay Rs.3000/- as reference expenditure.

b. Be pleased to hold that the present petitioner institute does not fall under the definition of the industries as per the section 2(J) of the Industrial Disputes Act therefore there is no relationship of employer and employee between the present petitioner and respondent – workman.

c. Pending hearing, admission of the present petition, your lordship may be pleased to grant stay of execution, implementation and operation of the operation of the order passed by the Learned Judge of the Labour Court, Dahold dated 6-11-2008 in Reference L.C.B. Case No.59/2008.

d. Be pleased to grant in other and further relief in the interest of justice.

2. Short facts leading to the present petition are that respondent herein has preferred the reference raising his grievance that he was retrenched by the petitioner - authority without giving notice or notice pay or retrenchment compensation. It was the stand of the workman that he was working in the department and he was carrying out the work permanent in nature even though his service was terminated. The workman has submitted that he was watchman and the service of 8 hours being taken from him and he was paid minimum wages. It was his grievance that no appointment letter or Identity Card or pay slip was issued to him. It was his allegation that he was working since 01.02.1988 and worked for more than 240 days in a year. According to him, the petitioners have terminated his service w.e.f. 17.07.1997 without paying any notice pay or retrenchment allowance or serving any notice. On all these basis, the workman has claimed for reinstatement along with continuity of service with full back wages.

3. The petitioners have contested the same on the grounds that the workman was taken as and when the work was available and he has not completed 240 days in the preceding year. It was contended that the work was not of a permanent in nature and the workman was working as daily wager and he was being paid daily wage. It is also the stand of the petitioners that on completion of work, he was relieved from the services. The other stand of the petitioners that it is not an industry and, there was no relationship between the petitioners and respondent as of employer and employee. The other contention of the petitioners was that the workman himself stopped to come on service.

4. After completion of evidence, the Labour Court passed the award dated 06.11.2008 in Reference (L.C.T.) No.59 of 2008 (Old) (New No. Reference (L.C.G.) No.507 of 2008) and directed the petitioners to reinstate the workman on his original post with continuity of service and also directed to pay 40% back wages with other eligible benefits, with continuity of the services and R.3000/- as cost.

5. Heard Mr. Soaham Joshi, learned Assistant Government Pleader for the petitioners and Ms. Reema Kamani, learned advocate with Mr. P.H. Pathak, learned advocate for the respondent at length through video conferencing.

6. Mr. Soaham Joshi, learned Assistant Government Pleader for the petitioners has vehemently submitted that the respondent – workman was working as watchman on need basis and the work was not of permanent in nature. He has submitted that the workman has not completed 240 days in a calendar year. He has submitted that the work was being on seasonal basis and he was never appointed on regular basis and the workman was daily wager. According to him, the workman has also admitted that he was working on daily wager. According to the learned Assistant Government Pleader, if t