SCA/3614/2003 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 3614 of 2003 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 ? ============================================= = DIVISIONAL CONTROLLER - Petitioner Versus PRABHATSINGH KESERSINGH DARBAR - Respondent ============================================= = Appearance : MR HS MUNSHAW for Petitioner MR ND SONGARA for Respondent ============================================= = CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 12/11/2008 ORAL JUDGMENT The petitioner-GSRTC has challenged the award and order dated 20/05/2002 passed by the Labour Court, Kalol in Reference (LCK) No.120 of 1986, partly allowing the reference SCA/3614/2003 2/6 JUDGMENT and ordering the reinstatement of the respondent-workman with continuity of service and 25 % of back wages and awarding cost of Rs.251/-, on the ground that the said award is contrary to law and therefore deserves to be quashed and set aside. 2. The facts in brief leading to the filing of this petition deserves to be set out as under: 2.1 The respondent-workman was appointed as temporary Badli driver on 17/09/1980 at Kadi. Though he was appointed as temporary Badli driver, he was required to obtain fitness certificate from the Medical Officer within seeks months from the date of his temporary Badli driver appointment on 17/09/1980. On 05/11/1980, the respondent-workman was referred to the Medical Officer, Mehsana and thereafter he was referred to Board of Referee, Civil Hospital, Ahmedabad and the certificate was issued on 10/11/1980 and on account of weak eye sight he was declared unfit. As he was having weak eye sight, his name was deleted from waiting list of temporary Badli driver and he was accordingly informed on 01/01/1981. The workman raised industrial dispute which came to be referred to the competent Court wherein it got numbered as Reference (LCK) No.120 of 1986. The Labour Court after hearing parties at length and perusing the certificate came to a conclusion that the certificate was ambiguous and held that the workman was entitled for reinstatement with only 25 % of back wages, as even the alternative appointment was not offered to him as per the settlement existing between the Union and the petitioner-S.T. Corporation. The said order dated 20/05/2002 passed by the Labour Court is impugned in this SCA/3614/2003 3/6 JUDGMENT petition. 3. Mr.Munshaw, learned Advocate appearing for the petitioner has vehemently submitted that the workman did not have any right in the first instance to get employment as driver in S.T. Corporation on account of his physical infirmity, as he did not have proper eye sight. The performance of this workman as temporary Badli driver would not confer upon him any right whatsoever including that of recategorization as held by the Labour Court. He further submitted that assuming for the sake of submission without conceding that the certificate referred to by the Labour Court in its order was not very clear, but then the subsequent certificate obtained on 10/05/2003 after the order was passed, which has now been relied upon by the workman also go to show that the workman was not fit to serve as a driver and therefore the order and award impugned in this petition cannot be said to be sustainable from any angle and the petition deserves to be quashed and set aside. 4. Shri Sonagara, learned Advocate for the respondent- workman submitted that the respondent-workman could not have been de-listed or terminated and his name ought not to have been revoked or scored off from the wait list, as the certificate which was made basis for doing the same itself was ambiguous and unclear on the aspect of unfitness of the respondent-workman. Alternatively, he submitted that assuming that the workman was unfit to be employed as a driver then as per the settlement between the Union and S.T. Corporation, he should have been given benefit of recategorization and other alternative employment. He submitted that case deserves to be considered with utmost SCA/3614/2003 4/6 JUDGMENT sympathy, as he is not even attained the age of superannuation and he is having difficulty in sustaining himself. 5. This Court has heard the learned Advocates for the respective parties at length and has perused the award and order impugned in this petition. The following undisputed facts deserves to be set out before adverting to rival contentions of the respective Counsel. 1. The workman was actually figuring in the waiting list for the employment to the post of temporary Badli driver. 2. The workman was engaged as Badli driver and he was referred to Medical Officer for medical examination. The record indicates that the workman was engaged as Badli driver only on 02/09/1980 and he was referred to medical examination on 05/11/1980. 3. The respondent was declared unfit on account of weak eye sight. 4. The subsequent certificate obtained also indicates that the workman was unfit to perform his duty as driver. 5. The workman had never been employed as regular employee in the organization. 6. The workman had not completed 240 days in the preceding year, as could be seen from the record and it is also not the case of the respondent-workman before the Labour Court that he has completed 240 days and therefore become entitle for retrenchment compensation. 6. Against the aforesaid backdrop, the question arises SCA/3614/2003 5/6 JUDGMENT as to whether the award passed by the Labour Court ordering reinstatement could be said to be justified in eye of law. The answer would be emphatically “No”. The Labour Court has not appreciated the fact that it was not even the case of the respondent-workman prior to his de-listing or revoking or scoring of his name from wait list, that he had in-fact discharged his duties for 240 days in the preceding year. The award is absolutely silent on this aspect, despite that Labour Court has observed that there was a breach of Section 25 (F) of the I.D. Act. This finding deserves to be deprecated under Article 227 of the Constitution of India as it has rendered the entire award unsustainable. It also deserves to be noted that the Labour Court has not taken into account the fact that the workman had never been regularly employed as driver. He was only offered employment as Badli driver, that to within two months thereof he was asked to undergo medical test wherein he was declared unfit. In these circumstances, the workman did not have any right to benefit of recategorization, as is observed by the Labour Court. The settlement between the Union and the petitioner-S.T. Corporation is not referred to in the judgment indicating such rights in Badali workers. There cannot be such rights into those wait list candidates whose appointments were on conditions that they have to pass the medical test and on failure of medical test on account of some infirmity or some handicap, they cannot be said to be entitled for benefit of recategorization. As in the first instance the employment itself has not came into being ; nor can it be said that it is because of the employment rather hazards of employment, the workman incurred some kind of infirmity which warranted his recategorization for any other job or employment within the Corporation. SCA/3614/2003 6/6 JUDGMENT 7. In view of this, the award of the Labour Court which has proceeded on this premises is absolutely perverse and the same therefore deserves to be quashed and set aside and accordingly the same is deserves to be quashed and set aside. Rule made absolute to the aforesaid extent only. However, there shall be no order as to costs. (S.R.BRAHMBHATT, J.) sompura