Gujarat High CourtState Of Gujarat vs Kalidas Kuberbhai Machhi on 19 June, 2001Equivalent citations: [2002(93)FLR928]Author:Ravi R. TripathiBench:Ravi R. TripathiJUDGMENT
 

 Ravi R. Tripathi, J.1. The State of Gujarat, through the Executive Engineer to the Civil Store, Irrigation Sub Division No. 24 at Rajpipla, District : Narmada, has challenged the award passed by the Labour Court, Bharuch, in Reference (LCB) No. 25/1990, which was the new number given to the earlier Reference bearing No. Reference (LCV) No. 378/1984. The learned Judge, by the impugned award, directed the present petitioner to reinstate three persons, namely, Kalidas Kuberbhai Machhi, Bachubhai Chhaganbhai Vasava and Kanchanbhai Amrabhai Vasava, on their original posts with 40% back-wages and also costs of Rs. 250/- to the applicants of that Reference.2. Mr. R.V. Desai, learned AGP appearing for the petitioner, invited the attention of the Court to the fact that written statement was filed before the Court below by Exh.11, in which it was specifically pleaded that the respondents-workmen were daily wager Chowkidars at the rate of Rs. 9-90 ps. per day for discharging their duties during night. It is the case of the petitioner that on 7/1/1982, when these three workmen were on duty as Chowkidars at the Store, a theft of a truck load of iron bars had taken place from the Store Compound. It is the case of the petitioner that when these three chowkidars were on duty and the theft is committed, an inference can be drawn that they are not vigilant in discharging their duties and therefore, their services were terminated with effect from 21/5/1982. It is also the case of the petitioner that while the respondents-workmen were on duty as night Watchmen, theft was committed in their presence and there is no material to show that they had tried to stop the commission of the said theft and therefore, it can be said that they have not discharged their duties diligently and therefore, their services were terminated.3. The learned Judge, while considering the case of the respondents-workmen, has given undue weightage to the fact that the person, who was examined on behalf of the Department, namely, one Deputy Engineer, Navinchandra Pursottambhai Chauhan, deposed on 3/7/1986 that, "the respondent-workmen were employed as night Watchmen at the rate of Rs. 9-90 ps. per day". He has narrated the incident, as was mentioned in the written statement, during the cross-examination. The said witness has further deposed that, "He does not have any personal knowledge of this case"; "He is not in possession of any papers of the police complaint against the respondents-workmen"; and "No notice was given to the respondents-workmen or no amount was paid to them". From the deposition of the said witness, the learned Judge has drawn the conclusion that, "The respondents-workmen were not given any opportunity to defend themselves and that is in violation of the principles of natural justice and that the Department has not conducted any departmental inquiry against them". The learned Judge has also recorded a finding solely on the basis of the case of the respondents-workmen that, "he was serving for more than three years" and that, "the workmen had been working for more than 240 days". Not only that the learned Judge has also observed that, "as the present petitioner has not produced the muster roll of the respondents-workmen, there is a reason to believe that the respondents-workmen has worked for more than 240 days in every year".4. Nothing except the bare word of the workmen could be found on the record in support of this finding by the learned Judge. It is also required to be noted that the petitioner had taken a plea that, "theIndustrial Disputes Actis not applicable to the Irrigation Department". The learned Judge has replied the said contention by saying that the judgement on which the said plea is based, is of the year 1998 and as the services of the respondents-workmen were terminated in the year 1982, the said propositions of law cannot be applicable to the case of the respondents-workmen. Be that as it may, the fact remains that the respondents-workmen were working as daily wagers night watchmen and were getting the salary at the rate of Rs.9-90 ps. per day. It is also not denied that the theft had taken place on 7/1/1982 when they were on duty and thereafter, their services came to be terminated.5. Mr. R.V. Desai, learned AGP, relied upon the judgement of the Honourable Apex Court reported at AIR 1997 SC 6357 wherein the Apex Court has held that the appointment of the daily wagers is made on the basis of the need of work and therefore, the termination of their services cannot be construed as retrenchment. The Apex Court has also held that the said retrenchment cannot be said to be arbitrary as the daily-wagers were not entitled to the post. The Apex Court in para-3 of the said judgement observed as under :"The question of consideration, therefore, is : whether the petitioners can be said to have been 'retrenched' within the meaning ofSection 25-Fof the Industrial Disputes Act ? Every Department of the Government cannot be treated to be "industry". When the appointments are regulated by the statutory rules, the concept of 'industry' to that extent stands excluded. Admittedly, they were not appointed to the posts in accordance with the rules but were engaged on the basis of need of the work. They are temporary employees working on daily wages. Under these circumstances, their disengagement from service cannot be construed to be a retrenchment under theIndustrial Disputes Act. The concept of "retrenchment", therefore, cannot be stretched to such an extent as to cover these employees."6. In view of the aforesaid discussion, the present Special Civil Applications are allowed. The judgement and award of the Labour Court, Bharuch, is quashed and set aside. and Rule is made absolute. No order as to costs.