Girdharlal Shamji Tank vs Sardar Sarovar Narmada Nigam Ltd.

V.M. Sahai, J.—We have heard Mr A.S. Supehia, learned Counsel for the Appellant. The Appellant workman was working with the Respondent as daily wager peon. Since the work was over and as he was appointed in a temporary establishment, his services were terminated. The termination order was challenged before the Labour Court. The Respondent filed their written reply before the Labour Court wherein in paras 4 and 5 it was stated as under:

It is submitted that the opponent corporation is created by Gujarat State Government for undertaking work of State for construction of dam-power project-canal, distribution of water to agriculturist that is for irrigation works. Thus it does not produce any materials, goods nor render services but they are performing functions of State Government. It is not carrying on any trade or business. They are executing and performing sovereign activities. The opponent gets funds for executing the work from Government. This Corporation is created temporarily for execution of the above work, hence no employee is appointed by this corporation but all the staff of class I, II and III are transferred on deputation from Irrigation department of the Government of Gujarat and on completion of the work, they would be transferred to their parent department. It is respectfully submitted that irrigation department of the Government is not carrying on any trade, business so it does not fall under the word Industry as defined under the ID Act and the disputes if any between the employer and the employee would not fall under the word Industrial Dispute but would fall under Civil Law. Thus, the Hon''ble Court has no jurisdiction to entertain, hear and decide this matter and reference by Assistant Labour Commissioner before Hon''ble Court is misconceived and not competent nor maintainable.

It is further submitted that the executive engineer or deputy executive engineer of the Corporation to appoint class IV employees that is peon, chowkidars etc. But they can be appointed by General Manager of the Corporation, who calls for names from Employment Exchange, takes interview of such candidates, selects for recruitment. But as department is itself temporary the staff of class I, II and III being on deputation only the question of any person on permanent basis does not arise at all. Moreover, as per the policy of the Government the persons from whom agricultural land is acquired for carrying out the project by Corporation are to be provided with job, and practically they are illiterate so they are being recruited on class IV post and none from outside is being appointed by this Corporation.

The case of the Respondent before the Labour Court was that the Appellant was appointed as peon on a temporary post in the temporary establishment. The Appellant was not appointed on a permanent post. The Appellant was appointed as peon due to exigencies of work along with other persons. All the staff of Class I, II and III are transferred on deputation from the irrigation department and after the work was over, they were repatriated to their parent department. It was further stated that the appointments of Class IV employees including the present Appellant have been made by the Executive Engineer or Deputy Executive Engineer of the Corporation but they were not the appointing authority of peon, chowkidar etc. It is only the General Manager of the Corporation, who calls for names from the Employment Exchange and after taking interview, the candidates are selected and appointed. Therefore, the appointment of the Appellant was dehors the Rules. However, only two persons have been retained by the Respondent corporation whose land was acquired for the construction of dam by Sardar Sarovar Narmada Nigam Ltd. The Labour Court, did not consider the submissions made by the Respondents that the appointment of the workman was dehors the Rules; the establishment was not permanent but was created temporarily for the purpose of construction of dam and; all the staff of class I, II and III are transferred on deputation from the irrigation department and after the work was over, they were repatriated back to their parent department. But without considering these submissions made by the Respondents, the Labour Court has directed reinstatement of the workman but without any backwages. The Respondents filed Special Civil Application No. 12874 of 2008 which had been allowed by the learned Single Judge by judgment dated 13.9.2010 and it has been held that since the Appellant was not employed in a permanent set up or establishment and he refused to accept the notice by which retrenchment compensation was offered, therefore, there is no question of violation of Section 25F, G and H of the Industrial Disputes Act, 1947. The learned Single Judge further found that from the date of passing of the award till the matter was decided by the learned Single Judge, an amount of Rs. 33,000/- would be liable to be paid to the Appellant. Thus, in the interest of justice, the learned Single Judge awarded a total compensation of Rs. 50,000/- to the Appellant and set aside the order of reinstatement. In view of the aforesaid facts, we are of the opinion that the order passed by the learned Single Judge is perfectly just and legal in view of the decision of the Apex Court in Secretary, State of Karnataka and Others Vs. Umadevi and Others, wherein it has been held that appointments made on temporary basis, dehors the Rules could not confer any right on the workman. The directions issued by the Labour Court would amount to creating another mode of public appointment which is not permissible. Here in this case, the learned Single Judge found that the Appellant was appointed on temporary basis which came to an end and after the work was over. All Class I, II and II employees who were on deputation had been repatriated back to their parent department as the work was over. The Labour Court committed an error of law which had been rectified by learned Single Judge. We do not find any reason to interfere with the order of the learned Single Judge.

In view of the aforesaid, we do not find any merits in this appeal and the appeal is accordingly dismissed.