The determination of employment status should be based on the actual nature of work performed, not solely on the appointment letter.

JUDGMENT :

M.K. THAKKER, J.

1. Being aggrieved with the award passed by the learned Industrial Tribunal, Vadodara in Reference (IT) No. 101 of 2016 dated 08.09.2021 present petition is filed under Articles 14, 226 and 227 of the Constitution of India.

2. Facts arising for the consideration is that the respondent was offered work as a part time employee in the month of February 1989 and was paid remuneration as fixed by the Government of Gujarat for the part time employee. The respondent herein was rendering his service for six hours per day and the work which was done by the respondent was purely temporary, ad-hoc and part time wages as per the administrative requirement. The grievance was raised before the learned tribunal by way of filing the Reference praying to grant the benefit of the Government Resolution dated 17.10.1988 for which the written statement was filed by the petitioner stating that the aforesaid Resolution pertaining to the Road and Building Department and as the petitioner was serving in the District Rural Development Agency, the same would not be applicable in the case of the present petitioner. Learned tribunal after assigning the reasons has allowed the Reference vide order dated 08.09.2021 and the petitioner was directed to grant the benefits to the respondent flowing from the Government Resolution dated 17.10.1988 which is the subject matter of challenge before this Court.

3. Heard the learned advocate Mr. H.S. Munshaw for the petitioner and learned advocate Mr. Dipak R. Dave for the respondent-workman.

4. Learned advocate Mr. Munshaw for the petitioner submits that the learned tribunal has mislead and misinterpreted the Government Resolution dated 17.10.1988 issued by the Government of Gujarat through Road and Building Department, which is meant for full time daily wager not for the part-timers and in absence of any policy framed by the Government of Gujarat for the part-timers, learned tribunal has exceeded its jurisdiction by granting the benefits contrary to the provisions of the Government Resolution dated 17.10.1988. Learned advocate Mr. Munshaw submits that the Reference was preferred after a period of 13 years and on the ground of delay also the same was required to be rejected, however, the learned tribunal has committed an error in allowing the Reference and granting the benefits as per the Government Resolution dated 17.10.1988.

5. Per contra, present petition is opposed by the learned advocate Mr. Dipak Dave, who has submitted that to consider whether the respondent-workman was a part-timer or full timer, the nature of work and the services rendered by the respondent-workman is to be considered instead of considering the appointment letter. Learned advocate Mr. Dave submits that during the cross examination of the witness of the petitioner-management, it was admitted by the witnesses that the workman has served for 12 hours in a day and the nature of work that would consume whole day as he would come first and open the office and left the office after leaving of other employees. Therefore, it cannot be said that the respondent-workman was part time employee and therefore, not required to be granted benefits of Government Resolution dated 17.10.1988.

6. Learned advocate Mr. Dave has drawn the attention of this Court with regard to the evidence produced below Exhibit 40 wherein the respondent-workman was ordered to serve from 09:30 to 18:10 the morning on rotation basis as well as he was given the election duty, there also he was ordered to serve during the night hours in addition to the morning duty. Learned advocate Mr. Dave submits that in fact the petitioner himself has recommended for the regularisation of the respondent-workman after considering the duties discharged by the respondent-workman. Learned advocate Mr. Dave submits that Exhibit 27 suggests that he had completed 21 to 25 days in a month and other similarly situated persons were regularized, who were named in the communication made by