IMPORTANT POINT
The main legal point established in the judgment is the onus on the workman to establish completion of 240 days in a year and the principles for awarding reinstatement and backwages.

JUDGMENT :

1. Rule returnable forthwith. Learned advocate Ms. Vidhi Bhatt waives service of notice of Rule on behalf of respondent – workman.

2. State has filed this petition challenging the award of Labour Court, Anand, dated 15.12.2011 in Reference (LCA) Case No. 136 of 1998 wherein the Labour Court, awarded reinstatement with 20% backwages.

3. Brief facts referred in the petition are as under: -

It was case of respondent – workman before the Labour Court that he was working with the office of petitioner with effect from 28.11.1995 as a peon. After joining service in Borsad, he was transferred to various other offices of State as a peon. Thereafter, without any reason and without following any provisions of the Industrial Disputes Act, 1947 (‘the Act’ for short), he was illegally terminated on 30.06.1998. It was his case before the Labour Court that he completed 240 days in a year and had continuously worked from 1995 to 1998 and thus there was breach of Section 25F of the Act. It was also stated in the Statement of Claim that at his place some other person was appointed and thus though work was available, he was illegally terminated. For the said illegal termination dated 30.06.1998, the workman raised Industrial Dispute before Labour Court, Anand registered as Reference (LCA) No. 136 of 1998. Upon adjudication, the Labour Court by award dated 15.12.2011, granted reinstatement with 20% backwages. Pursuant to the award of Labour Court, workman was reinstated in service, subject to filing of petition by order dated 23.10.2012. Aggrieved by the award dated 15.12.2011, present petition is filed.

4. Heard learned Assistant Government Pleader Mr. Mayank Chavda for the petitioner – State and learned advocate Ms. Vidhi Bhatt for the respondent – workman.

5. Learned Assistant Government Pleader Mr. Mayank Chavda for the petitioner – State submitted that taking best case of the workman, he was appointed as peon with the office of petitioner on 28.01.1995 and thereafter he was terminated on 30.06.1998. Thus, he had completed only 3 years and 4 months of service. No evidence was produced by the workman in relation to his appointment. No appointment order was produced by the respondent – workman and there was no evidence with regard to completion of 240 days in a year. Further, from the written statement filed by the petitioner before the Labour Court it is evident that the respondent – workman had not worked on a permanent post. He was appointed as daily-wager and accordingly paid wages. Since the workman was not appointed on a permanent sanctioned post the seniority list was not prepared and kept. Further, provisions of the Industrial Disputes Act (“the Act) would not be applicable in case of daily wager and no notice is required to be given terminating the service. Moreover, from the wage register produced from March, 1996 to December, 1996 and from January, 1997 to December, 1997, admittedly the workman had not completed 240 days in a year. Most importantly, he was paid wages on the basis of the days he had worked. Hence, there was no breach of Section 25F of the Act as alleged.

5.1 In the cross-examination, the workman had stated that he is owning three cows and is earning from going to labour work and maintaining his livelihood. Most importantly, he stated that he was earning Rs.15,000/- per year which is more than the amount he used to receive as dailywager. Further, pursuant to the Government Resolution dated 06.02.2006, the practice of appointing daily wager has been abolished and it has been decided to appoint casual workers through outsourcing agency and therefore also the reinstatement as directed is beyond the Government Resolution dated 06.02.2006.

5.2 One more aspect which the Labour Court has ignored is that co-worker in the cross-examination had stated that he is not aware about completion of 240 days by the workman. On the contrary, he stated that the respondent was paid through vouchers and no seniority list was maint