SCA/12288/2007 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 12288 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE K.M.THAKER ========================================================= 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 ? ========================================================= P.P. PATEL - Petitioner(s) Versus MOHMMAD AKIL NAZMUL HUSSAIN BUKHARI - Respondent(s) ========================================================= Appearance : MS ROMA I FIDELIS for Petitioner(s) : 1, RULE NOT RECD BACK for Respondent(s) : 1, MR MUKESH H RATHOD for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE K.M.THAKER Date : 08/08/2008 ORAL JUDGMENT 1. In this petition, the petitioner has challenged an award dated 15.12.2006 passed by the learned Labour Court, Ahmedabad. By the said Award, the learned Labour SCA/12288/2007 2/5 JUDGMENT Court has partly allowed the reference and directed the present petitioner to reinstate the respondent on his original post and has rejected prayer for back-wages. The petitioner is aggrieved by the said award to the extent it directs to reinstate the respondent. Hence, this petition. 2. From the record of the petition, it appears that the respondent of present petition had approached the learned Labour Court as against present petitioner's action of terminating his service with effect from 1.7.1999. The respondent herein alleged that he was working with the petitioner since last about one and half years and that he was being paid wages @ Rs.1500/- and since the petitioner indulged in exploitation, he had objected against said exploitation of not paying full salary as per the minimum wages etc. and therefore, his service was terminated illegally and without following procedure prescribed by law and without giving any notice or notice pay etc. On the basis of such allegation, he claimed relief of reinstatement, back-wages and other benefits. The petitioner herein filed its reply and also examined Dr. Heena as its witness and claimed that no appointment letter was issued in favour of respondent, however, it was admitted that the respondent was engaged by oral order of Medical Officer and in pursuance of such order, the respondent worked from June, 1998 to July, 1999. It SCA/12288/2007 3/5 JUDGMENT was also claimed by the petitioner before the learned Labour Court through the evidence of the said officer that it was the respondent, who had abandoned job and had left the car, of which he was in-charge as driver, unattended and thereafter, did not report for work and abandoned his job irresponsibly. On the other hand, the respondent tried to contend that the petitioner terminated his services. On the basis of the documents produced by the present petitioner, through its witness, the Court came to the conclusion that the respondent was in employment of the petitioner. The Labour Court also came to the conclusion that the respondent's service was terminated without following procedure of law. The Labour Court, on the basis of such conclusions, directed the petitioner to reinstate the respondent. 3. Ms. Roma I. Fidelis, learned advocate appears for the petitioner. She submitted that the respondent was working on daily wages and was not recruited after following due and prescribed procedure and that the Labour Court has erred in directing reinstatement. 4. During the pendency of the present petition, the petitioner has issued an order dated 31.7.2008, whereby the respondent has been ordered to be engaged as daily wage driver and on that premise, it is submitted that the direction to reinstate the respondent on his original SCA/12288/2007 4/5 JUDGMENT post has been complied with. By the said order dated 31.7.2008, the respondent has also been granted posting at Barwada. Accordingly, the respondent is now taken in employment as a daily wage employee - driver. It would not be out of place to recall that before the trial Court, the petitioner's witness in her deposition had admitted that the respondent was engaged by the petitioner and that he had worked during the period from June, 1998 to July, 1999 and the said witness had also produced certain documents showing the payment of wages to the respondent. It comes out from the award that the respondent was engaged on daily wages by an oral order of Medical Officer and no conclusive evidence on record by respondent to show that he had put in work of 240 days, and yet the Labour Court has proceeded on presumptions that the respondent was must have completed the work of 240 days. Even if such was the case, then also mere completion of 240 days would not make the respondent entitled for payment of retrenchment compensation and/or for any other payment, as his engagement with respondent, as it transpires from the award, was only on daily wages. 5. However in view of the finding recorded by the Court that the work for which the respondent was engaged continues and the petitioner has been engaging other persons junior to the respondent for the same work and in view of the fact that the SCA/12288/2007 5/5 JUDGMENT petitioner has decided to reengage the respondent on the same post and on the same terms, the direction regarding reinstatement is not disturbed. It is however, clarified that the Labour Court has not granted benefit of continuity of service and that therefore, the decision of the petitioner to reengage the respondent shall not make him eligible for continuity of service and this decision shall not confer any such right and the respondent. 6. However, as noticed hereinabove, since the respondent is now ordered to be engaged as daily wages worker, the cause of petition does not survive and same is accordingly disposed of. Rule is discharged. (K.M.THAKER, J.) ynvyas