The court established that temporary employment does not exempt a workman from the protections of the Industrial Disputes Act if continuous service can be proven.

JUDGMENT :

MAUNA M. BHATT, J.

1. State as appellant has filed this intra-court appeal under Clause 15 of Letters Patent, challenging the judgment dated 31.01.2017 in Special Civil Application No. 6059 of 2015, wherein learned Single Judge modified the award of Labour Court, Bhavnagar in Reference T No. 208 of 1995 by holding that the workman would not be entitled for reinstatement w.e.f. 31.03.1991 with 20% back wages and continuity of service but the workman would be entitled to reinstatement with effect from the date of employment of other employees through contractor. The consequential benefits shall also be made available to the workman accordingly.

2. The brief facts on record are to the effect that the respondent - workman was appointed temporarily on 10.08.1988, for a period of three months as a daily wager. Upon completion of three months, she was re-engaged by fresh order dated 15.11.1988 for a period of another one month. Once again, an order dated 04.01.1988, was passed engaging her for a period of 30 days. Thereafter, she was not employed and against her non engagement/ re-employment, she raised a dispute before the Labour Court, Bhavnagar registered as Reference T. No. 208 of 1995. The Labour Court, Bhavnagar, upon adjudication directed the appellant-State to reinstate the respondent-workman to her original post with 20% back wages with continuity of service w.e.f. 31.03.1991. Aggrieved by the award of the Labour Court dated 30.08.2014, the appellant- State preferred Special Civil Application No. 6059 of 2015, wherein learned Single Judge while modifying the award dated 30.08.2014, held that the respondent - workman would not be entitled to reinstatement with effect from 31.03.1991 with 20% back wages and continuity of service but the workman would be entitled to reinstatement with effect from the date of employment of other employees through contractor. All the consequential benefits with continuity of service and back wages shall be made available accordingly. Aggrieved by aforesaid directions, present appeal is filed.

3. Heard Ms. Shruti Dhruve, learned Assistant Government Pleader for the appellant-State and Mr. Vishal Thakkar, learned advocate for respondent (workman).

4. Ms. Dhruve, learned AGP for the appellant-State submitted that the judgment of learned Single Judge is erroneous, because the Court erred in not appreciating that initial engagement of the workman was only for a period of three months as a daily wager w.e.f. 10.08.1988 and thereafter she was re-employed for a further period of one month twice. Upon completion of the said period, the workman was not re-engaged or not given continuation of work and, therefore, once the employment of the workman was for limited period, the provision of Section 2(oo)(bb) would be applicable and, therefore, findings of Labour Court that there was breach of Section 25F, 25G and 25H of Industrial Disputes Act, 1947 (“the Act” for short) is erroneous. She submitted that in the written statement, it was case of the appellant-State that the respondent-workman was appointed w.e.f. 10.08.1988 for a period of three months. Thereafter, another order dated 15.11.1988 was passed whereby she was again re-employed for a period of one month. After that period of one month was over, she was again re-employed on 04.01.1988, for a period of one month and thereafter, she had not worked and, therefore, the assertion made in the statement of claim that she had continuously worked from 10.08.1984 to 31.01.1991 is factually incorrect. The seven years’ work period shown by the respondent-workman being not supported by any evidence, contrary to the written statement and not considered by the learned Single Judge, the judgment of Learned Single Judge deserves to be quashed and set aside on this ground. Further, as per the evidence on record particularly, Exh.28, Exh.29 and Exh.30 respectively, dated 16.08.1988, 15.11.1988 and 04.01.1989, the appointment of the respondent - workman was for a f