SCA/7850/2008 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 7850 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= TALALA TALUKA SAHKARI KHAND UDYOG MANDLI LTD. - Petitioner(s) Versus N.R. PAMPANIA - Respondent(s) ========================================================= Appearance : PS GOGIA for Petitioner(s) : 1, MR RC KAKKAD for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 18/11/2008 ORAL JUDGMENT Rule. Mr.R.C.Kakkad, learned Advocate for the respondent No.1 waives service of notice of Rule. 2. The petitioner- Co-operative Society has SCA/7850/2008 2/5 JUDGMENT approached this Court under Article 227 of the Constitution of India challenging the order passed by the Industrial Court, Rajkot on 14/12/2007 in BIR Appeal No.6 of 2004 on the ground that the same is bereft of any merits and contrary to the provisions of law and therefore the same deserves to be quashed and set aside. 3. The facts in brief deserves to be set out as under: 3.1 The respondent had filed an application on 31/03/1983 under Section 79 of BIR Act indicating therein that he has been working as a daily wager and received Rs.21.15 Paise per day. As he could not attend few days, and as when he went to work on 30/12/1982, he has not been engaged it was illegal termination. This action of not taking in job was assailed by filing BIR Application No.6 of 1990 wherein the Labour Court, Junagadh vide order dated 26/03/2004 rejected the same on various reasons mentioned therein and mainly the reason that the workman was appointed as Rojamdar and the nature of work was seasonal and the finding is recorded that he has not completed 240 days in the preceding year and the workman was engaged as and when the work was warrant against him. His non-engagement on a given day cannot be said to be illegal. The norm, issuance of notice and misconduct therefore failed into insignificance. The said order dated 26/03/2004 was assailed by the workman in BIR Appeal No.6 of 2004 SCA/7850/2008 3/5 JUDGMENT and the Industrial Court, Rajkot vide order dated 14/12/2007 has held on the ground of non-furnishing an opportunity for being heard, on account of misconduct which was resultant effect of non- engagement, partly allowed the appeal and ordered that he is to be reinstated on the basis of seniority and whenever the employer was working based on that whatever amount was admissible is to be counted and 20 % that of be paid to him and Rs.2,000/- of cost is awarded. 4. Being aggrieved and dissatisfied with the order dated 14/12/2007 passed in BIR Appeal No.6 of 2004, the present petition is filed. Shri Gogia, learned Advocate for the petitioner contended that having recorded that the workman was only daily wager and had not completed 240 days so as to invoke Section 25 (F) of the I.D. Act and also having recorded that the work was of a seasonal nature and only even couching the order in terms, it was not open to the Industrial Court to partly allow the appeal on the basis of no opportunity whatsoever. The workman has not been stigmatized, as it is the prerogative of the employer not to engage the workman and his right flow only from the provisions of BIR Act as well as those of Industrial Disputes Act. In absence of any specific finding of committing any breach of BIR Act and / or Industrial Disputes Act, no relief could have been granted. 5. Shri Kakkad, learned Advocate for the SCA/7850/2008 4/5 JUDGMENT respondent-workman submitted that the finding of the appellate Court is not correct, however as the operative portion is in favour of the workman, the same has not been challenged. He submitted that the real cause for non-engaging the worker is so-called misconduct as it is come out from the reply that in itself is sufficient to show that the workman is stigmatized and he therefore ought not to have been dismissed or ought not to have been refused to work without following due procedure of law. 6. This Court is unable to accept the submission of Shri Kakkad as it could be seen from the record that the respondent-workman has not been terminated on account of any misconduct, as he was only a Rojamdar and the nature of work is seasonal. His application in the form of approach letter dated 22/02/1983 is absolutely clear with regard to his nature of engagement and the non-engagement on 30/12/1982. The non-engagement cannot be said to be in any way on account of misconduct. The subsequent attempt to justify the non-engagement in itself is not create any right in the workman, as in the instance case, it was open to the employer to keep a workman or not to keep in as it was not in violation of any provisions of the Industrial Disputes Act. Had there been any stigma attached to his so-called termination then of course, the question would arise as to whether any inquiry was warranted or not, but as it is clear from the approach letter and the nature of work and the non-engagement, no procedural SCA/7850/2008 5/5 JUDGMENT inquiry is called for and the order passed by the appellate authority requires to be quashed and set aside and the same is quashed and set aside. The petition is allowed to the aforesaid extent. Rule made absolute accordingly. (S.R.BRAHMBHATT, J.) sompura