1 S.B. CIVIL WRIT PETITION NO.1767/2004. (SARPANCH, GRAM SEWAK VS. GUMANA RAM & ANOTHER) DATE OF ORDER : 15.09.2008. HON'BLE MR. GOVIND MATHUR, J. Mr. M.R. Singhvi for the petitioner. Mr. A.K. Rajvanshy for the respondents. This matter came up for orders on an application preferred under Section 17-B of the Industrial Disputes Act, 1947, however, with consent of the learned counsel for the parties, the matter is finally heard. In brief, facts of the case are that respondent workmen raised an industrial dispute relating to their termination from service w.e.f. 10.11.1998 and that was referred for its adjudication to the labour court, Jodhpur by the appropriate government under a notification dated 27.12.2000. The dispute was in the terms that “whether termination of workman Shri Gumanaram s/o Shri Hamira Ram and Shri Surjaram s/o Shri Pusaram represented by Shri Sohan Singh Jaitmal, Bhartiya Mazdoor Sangh, by their employer Sarpanch and Gram Sewak, Gram Panchayat Bagawas, Tehsil Pachpadra, district Barmer by 2 an oral order on 10.11.1998 is just and legal? If not, then for what relief and amount, the workmen are entitled?” In statement of claim, the workmen averred that they were employed by the Director, de-gellination Plant, Defence Laboratory, Jodhpur on 01.08.1997 and control of the plant aforesaid was given to the Gram Panchayat Bagawas on 16.03.1998. The Sarpanch and Gram Sewak of the Gram Panchayat concern discontinued them from service by an oral order dated 20.03.1998. It was also stated by the workman that no payment of wages was made to them subsequent to 16.03.1998, therefore, they preferred an application before the prescribed authority under Payment of Wages Act and that came to be accepted on 02.08.2001 and this fact too establishes that they were in continuous employment of the Gram Panchayat at de-gellination Plant. As per the written submitted by the non-applicant Gram Panchayat Bagawas, the Gram Panchayat was just looking after de-gellination Plant and as a matter of fact, the same was run by the Defence Laboratory, Jodhpur. The Gram Panchayat specifically denied relation of master and servant between it and the workmen. It was also stated in written statement that the de-gellination Plant was with the Gram Panchayat up to 3 September 1999 and subsequent thereto, the same was handed over for its control and operation to the Public, Health and Engineering Department of the Government of Rajasthan. The labour court by the award impugned dated 05.12.2003 without deciding the question as to who was the employer of the workmen Gumanaram and Surjaram, reached at the conclusion that they were working continuously at de- gellination Plant under the operation of the Gram Panchayat and their termination from service amounts retrenchment. The retrenchment being made without adhering mandatory condition precedents was declared bad, accordingly an order for reinstatement of the workmen with 25% of back wages from the date of the reference i.e. 27.12.2000 was passed. While challenging validity of the award dated 05.12.2003, the contention of the learned counsel for the petitioner is that the labour court without determining the issue regarding employer of the workmen passed the award. It should have first examined the specific contention raised that the Gram Panchayat Bagawas was not employer of the workmen. It is also urged that de-gellination Plant was subsequently handed over to Public, Health and Engineering Department and, therefore, even if liability determined against the employer is right, then too, it 4 was required to be borne by the Public, Health and Engineering Department, the successor employer. On behalf of the respondent workmen, it is urged that the labour court after considering entire material available on record, reached at a specific conclusion that the workmen were discharging their duties continuously at de-gellination Plant and that was under control and operation of the Gram Panchayat and as such, the Gram Panchayat is employer of the respondent workmen. Heard learned counsel for the parties. As per the respondent workmen, they were employed with de-gellination Plant on 01.08.1997 and at that time, the plant was under the control of Defence Laboratory, Jodhpur. The de-gellination Plant was handed over to Gram Panchayat Bagawas on 16.03.1998. It is also pertinent to note that even after handing over the plant, the liability regarding payment of wages to the workmen was with the Defence Laboratory, hence the payment of wages as per the orders passed by the authority under the Payment of Wages Act was made by the Defence Laboratory. The control and operation of the plant was handed over to the Public, Health and Engineering 5 Department of the Government of Rajasthan after the month of September 1999. The Gram Panchayat Bagawas in specific terms raised an issue that it was not employer of the respondent workmen. This question should have been decided by the labour court and finding in this regard should have been given before reaching at a conclusion that the termination was erroneously made by the Gram Panchayat. The labour court should have determined the issue that whether the Defence Laboratory, Jodhpur, Gram Panchayat Bagawas or the Public, Health and Engineering Department, Government of Rajasthan is to be treated as employer of the workmen. In absence of such finding, the liability settled against the Gram Panchayat Bagawas is apparently bad. In view of whatever said above, this petition for writ deserves acceptance and same, therefore, is allowed. The award dated 05.12.2003 is declared illegal, thus, is quashed. The industrial dispute referred to the industrial tribunal by the notification dated 27.12.2000 is remanded to the labour court, Jodhpur for its adjudication afresh after impleading the Director, Defence Laboratory, Jodhpur and the Executive Engineer, Public, Health and Engineering Department, Balotara, district Barmer as party to the dispute. All efforts shall be made by the labour court to get the matter decided expeditiously, as far as possible 6 within a period of six months after effecting service upon the Defence Laboratory and the Executive Engineer, Public Health and Engineering Department, Barmer. No order to cost. (GOVIND MATHUR)J. Anil/