Executive Engineer vs Amarsing Bhathibhai Parmar

Akil Abdul Hamid Kureshi, J.—This petition is filed by the Gujarat Water Resources Development Corporation calling in question the award of the Labour Court, Nadiad dated 13.08.2002 in Reference (LCN) No. 189/91. Brief facts are as under:

The respondent-workman was engaged as tube-well operator under an order dated 16.12.89 for a period of 12 months from 20th December 1989 to 19th December 1990. Such appointment was on the terms and conditions contained in the agreement duly signed by the employer and the workman accompanying the appointment order. Under such terms of employment, the workman had to discharge the duties of maintaining and operating the tubewell of the Corporation for which he would be paid monthly salary of Rs. 657/-. I would refer to such terms and conditions at length at a later stage.

On the premise that the workman had been negligent in his work as tube well operator which caused loss and damage to the Corporation, after giving him show cause notice, his contract was terminated by an order dated 12.11.90. He challenged such order by raising an industrial dispute. The Labour Court in the impugned award came to the conclusion that the employer''s action of terminating the services of the workman on the ground of alleged misconduct was incorrect. The Labour Court was of the opinion that the workman was illegally terminated. Relying on a decision of this Court dated 26th March 2002 in the case of Deputy Executive Engineer v. Atulkumar Naranbhai Barot in Special Civil Application No. 2516 of 2002, the Labour Court held that the workman was a regular employee of the Corporation. The termination was accordingly quashed. He was directed to be reinstated in service. However, looking to the fact that as per his own version, the workman was earning Rs. 40/- per day through manual labour, the Labour Court granted only 25% backwages for the intervening period. It is this award that the employer has challenged in this petition.

It is undisputed that the workman was engaged as a tubewell operator for one year between 20th September 1986 and 19th September 1987 and thereafter, after a gap of one year, for a period between 26.9.88 and 25.9.89. His last engagement was the one when under the above noted order dated 16.12.89, he was assigned the task of bore well operation between 20th December 1989 and 19th December 1990. His engagement was subject to the terms and conditions contained in the agreement duly signed by both the sides. Such agreement also contained an additional document in the nature of conditions of contract. The agreement and the conditions provided, inter alia, that the workman would be paid Rs. 657/- per month during his engagement of 12 months. If any deficiency is found in the duties performed by the workman, after calling for his explanation, agreement could be terminated. It was further provided that the competent authority would be entitled to terminate the contract by giving a notice of seven days.

The terms also provided that the bore well would be operated by the operator personally without engaging a sub-contractor. Signatures of the persons receiving water would be obtained. The time of supplying the water would also be recorded.

From the order of termination of the workman, it could be seen that there were multiple complaints against the workman about the discharge of his duties. The said order dated 12.11.90 records that on 9.11.90, he had unauthorizedly provided water to farm holders without charging any money. He had deliberately damaged the meter and taken direct connection and provided water without making entries in the register. Earlier also, similar complaints were received. He had thus caused financial loss and damage to the Corporation. He had breached the conditions of the contract. His contract was, therefore, terminated with effect from 12.11.1990.

The workman in his deposition at Ex. 27, admitted that the meter was damaged for which he had owned up the responsibility and agreed to pay the fine. He however, explained that the damage was caused by rat.

One Narendrabhai Dahyabhai, Deputy Executive Engineer of the Corporation was examined at Ex. 30. He produced the charges levelled against the workman and stated that due to such charges, the contract was terminated on 12.11.90. He further stated that currently there was no system of appointment of contractor for bore operation. The financial condition of the Board was weak. Most of the permanent employees have been either terminated or given voluntary retirement.

In my opinion, the Labour Court committed an error in directing reinstatement of the workman with backwages in part. The employer had terminated the contract for alleged irregularities committed by the tubewell operator. A show cause notice was issued before passing the order dated 12.11.90. It was found that he had given water without proper records and without accounting the charges for the same. Earlier also, similar complaints were received. His explanation that the meter was damaged by a rat was not accepted. The appointment order envisaged termination of the contract on finding irregularities. It also envisaged simplicit termination of the contract after giving seven days notice. Ordinarily, the question of validity of the action of the employer of terminating the services for alleged misconduct would be subject to close scrutiny. Whether a proper inquiry before proving the charges was conducted or not would be a germane question. However, in the present case, due to attendant circumstances, in my opinion, the Labour Court ought not to have only on this basis directed reinstatement with backwages. This is for the following reasons.

The contract itself was to last only upto 19th December 1990. It was thus terminated barely one month earlier. In the statement of defence as well in the deposition of the witness of the employer, it has come on record that after the said period, the entire system of appointing well operators on contract basis was done away with. In terms of the contract, therefore, in any case, the agreement between the parties would have permitted the workman to discharge his duties maximum upto 19th December 1990 after which the contract would automatically expire. Even if therefore his service was not terminated early, he had no claim to continue to discharge his duties. Coupled with the fact that the unchallenged testimony of the employer''s witness was that the Corporation completely dismantled the system of appointing tubewell operators would not merit any direction for reinstatement with backwages. The Labour Court committed a serious error in relying on the decision of this Court in the case of Atul Kumar Naranbhai Barot (supra) in which the tube well operator had worked for more than a decade almost uninterruptedly and was in addition to his basic salary also paid dearness allowance etc. On such basis, the Court was of the opinion the workman was a permanent employee of the Corporation. Such are not the facts in the present case.

Accordingly, the impugned award of the Labour Court is set aside. Rule is made absolute accordingly.