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2004 DIGILAW 1600 (RAJ)

State of Rajasthan v. Lachchha Ram

2004-11-02

SUNIL KUMAR GARG

body2004
Judgment S.K. Garg, J.-The petitioner has filed the present writ petition under Article 226/227 of the Constitution of India on 21.02.2004 against the respondents with a prayer that by an appropriate writ, order or direction the Judgment and award dated 30.09.2003 (Annex.3) passed by the learned Judge, Labour Court, Jodhpur (respondent No. 2) by which the learned Labour Court (respondent No. 2) after answering the reference accepted the claim filed by the respondent No. 1 (Lachcha Ram) and held that non regularisation of services of respondent No. 1 even after taking the work of Chowkidar/IVth Class employee from the respondent No. 1 and not to give him benefit of that post was not proper and thus, the Labour Court ordered that if the work of the petitioner was found otherwise suitable, benefit of regularisation on the post of Class IV employee be given to him. 2. It arises in the following circumstances:- (i) That the appropriate Government vide notification dated 23.03.2002 made a reference to the respondent No. 2 to the effect whether non-regularisation of services of respondent No. 1 (Lachcha Ram) and non-grant of pay-scale to him even after taking work of the post of part time Chowkidar was proper and justified and if not what relief the respondent No. 1 was entitled to. (ii) That on the above reference, notices were issued by the respondent No. 2 to the parties and the respondent No. 1 filed claim petition (Annex.1) stating that he was appointed as cook/Chowkidar on part time basis in Social Welfare Hostel run by the petitioner on 01.01.1999 and the respondent No. 1 was performing all the duties which were performed by a regularly appointed Chowkidar, but he was being paid a sum of Rs. 600/-per month as salary and thus, the case of the respondent No. 1 was that he was entitled for regularisation and pay scale of the post of Chowkidar and other benefits. (iii) That reply (Annex. 600/-per month as salary and thus, the case of the respondent No. 1 was that he was entitled for regularisation and pay scale of the post of Chowkidar and other benefits. (iii) That reply (Annex. 2) to the claim petition was filed by the petitioner stating that the provisions of Industrial Disputes Act, 1947 (hereinafter referred to as the Act of 1947) were not applicable to the facts of the present case as the respondent No. 1 was not appointed by the petitioner and in fact he was appointed by the Mess Committee and the payment was also being made to him by the said Samiti and he was not working under the control and supervision of the petitioner, therefore, there existed no relationship of employer and workman between the petitioner and respondent No. 1 and further more, cooks were not the employees of the Department and hence, no case was made and claim petition be dismissed. (iv) The learned Labour Court (respondent No. 2) through Judgment and award dated 30.09.2003 (Annex. 3) accepted the claim of the petitioner inter alia holding. (i) that the employee appointed by Mess Committee would be treated as employee appointed by the Department as this point had earlier been decided by this Court in S.B. Civil Writ Petition No. 619/99, decided on 07.04.2003 (Daya Ram & Ors. vs. State of Rajasthan & Ors.). (ii) That because of the above reason, there existed relationship of workman and employer between the respondent No. 1 and the petitioner and since he was being paid a sum of Rs. 600/-per month as salary, though the work which was being taken from him was that of Chowkidar, meaning thereby that he was not being paid salary of Chowkidar (Class IV employee), that was not justified. (iii) That from the evidence, it was also established that the respondent No. 1 was working for more than 8 hours in a day and therefore, the respondent No. 1 could not be termed as part time employee, but was regular employee and thus, he was entitled for regularisation and was entitled to get the salary of Class IV employees and other benefits. (v) In this writ petition, the Judgment and award dated 30.09.2003 (Annex. 3) have been challenged. .3. (v) In this writ petition, the Judgment and award dated 30.09.2003 (Annex. 3) have been challenged. .3. In this writ petition, the following submissions have been made by the learned Counsel for the petitioner: .(i) That there was no relationship of workman and employer between the respondent No. 1 and petitioner as the respondent No. 1 was not workman as defined in Section 2(s) of the Act of 1947 and the petitioner was not employer as defined in Section 2(g) of the Act of 1947 and therefore, the provisions of Act of 1947 would not be applicable to the case of respondent No. .1. .(ii) That the services of respondent No. 1 were governed by the Hostel Management Rules, 1982 (hereinafter referred to as the Rules of 1982) and the Rules of 1982 have provided that cook would not be made available by the Department and therefore, from that point of view also, cooks were not the employees of the petitioner and hence, the respondent No. 1 was not entitled to any relief . .(iii) That the learned Labour Court had no jurisdiction to direct regularisation of services of employees and from that point of view also, the findings of the learned Labour Court (respondent No. 2) should be quashed and set aside and this writ petition should be allowed. 4. Reply to the writ petition was filed by the respondent No. 1 and he has supported the Judgment and award dated 30.09.2003 (Annex. 3) and submitted that the same are based on correct appreciation of evidence available on record and same do not require any interferonce by this Court while exercising jurisdiction under Article 227 of the Constitution of India. 5. There is no dispute on the point that the petitioner was performing the duties of cook, but he was not being paid the salary of cook/Class IV Employee and was being paid salary of Rs. 600/-per month only. 6. There is also no dispute on the point that he might have been appointed by the Mess Committee, but the learned trial Court has placed reliance on the decision of this Court in the case of Daya Ram (Supra), in which it was observed by this Court that the persons appointed by the Mess Committee would be treated as workman. 7. 7. In order to determine whether an employee charged with multifarious duties is or is not a workman the nature of his duties and not his designation is important. In such a case the main duties of and not some work incidentally done by such an employee are decisive. For that reference may be made to the decision of Hon’ble Supreme Court in the case of S.K. Maini vs. Carona Sahu Co. Ltd., reported in 1994 (3) SCC 510 . 8. The Hon’ble Supreme Court in the case of Workmen vs. Hindustan Lever Ltd., 1984 (4) SCC 292 has observed that dispute between workmen and employer regarding confirmation of workmen officiating in a higher grade is an industrial dispute. 9. Since, the learned Labour Court (respondent No. 2) has based its finding on the basis of observations made by this Court in the case of Daya Ram (Supra), and thus, the finding of the Labour Court (respondent No. 2) that there existed relationship of workman and employer between the respondent No. 1 and the petitioner is liable to be confirmed one and apart from this, the positive findings recorded by the learned Labour Court should not be disturbed while exercising jurisdiction under Article 227 of the Constitution of India. 10. Thus, the argument raised by the learned counsel for the petitioner that provisions of Act of 1947 are not applicable to the case of respondent No. 1, stands rejected. 11. That apart, the Hon’ble Supreme Court in the case of Andhra Scientific Co. Ltd. vs. A. Seshagiri Rao, reported in AIR 1967 SC 408 has observed that the finding of the Labour Court that a person was a workman will not be interfered with by the High Court under Article 226 of the Constitution of India. In this case, since the claim of the respondent No. 1 was found justified by the learned Labour Court ( respondent No. 2) on the basis of observations made by this Court in the case of Daya Ram (Supra), therefore, the findings of facts recorded by the learned Labour Court (respondent No. 2) that there was relationship of workman and employer between the respondent No. 2 and the petitioner should not be disturbed. 12. There is no dispute on the point that the respondent No. 1 was performing the duties of cook in the hostel run by the petitioner. 12. There is no dispute on the point that the respondent No. 1 was performing the duties of cook in the hostel run by the petitioner. The Hon’ble Supreme Court in the case of G.B. Pant University of Agriculture and Technology vs. State of U .P., reported in 2000 (7) SCC 109 has observed as under :- “The socialistic concept of the society as laid down in Parts III and IV of the Constitution ought to be implemented in the true spirit of the Constitution. The Supreme Court has on more occasions than one stated that democratic socialism aims to end poverty, ignorance, disease and inequality of opportunity.” “The continuing of the cafeteria employees to remain half -fed and half-clad is not consistent with the socialism conceived by the founding fathers of the Constitution. The deprivation of the weaker section has continued for long but time has now come to cry a halt and it is for the law Courts to rise up to the occasion and grant relief to a seeker of a just cause and just grievance. Economic justice is not mere legal jargon, but in the new millennium, it is an obligation for all to confer this economic justice on a seeker. If society is to remain, social justice is the order and economic justice is the rule of the day. A narrow pedantic approach to statutory documents no longer survives. The principle of corporate jurisprudence is now being imbibed by industrial jurisprudence and there is a long catena of cases in regard thereto-the law thus, is not in a state of fluidity since the situation is more or less settled. As regards interpretation, widest possible amplitude shall have to be offered in the matter of interpretation of statutory documents under industrial jurisprudence. The draconian concept is no longer available. Justice-social and economic, ought to be made available with utmost expedition so that the socialistic pattern of the society as dreamt of by the founding fathers can thrive and have its foundation so that the future generations do not live in the dark and cry for social and economic justice.” “. . . . Justice-social and economic, ought to be made available with utmost expedition so that the socialistic pattern of the society as dreamt of by the founding fathers can thrive and have its foundation so that the future generations do not live in the dark and cry for social and economic justice.” “. . . . Therefore, the appellant is directed to regularise the services of the employees in terms of the award passed by the Labour Court so as to entitle the employees of cafeteria to obtain the monthly wages on a par with the other employees of the University, as directed by the Labour Court.” 13. The facts of the above case are applicable with the facts of the present case as in the present case, the petitioner was appointed as cook and he was discharging the duties of cook and doing the work for more than 8 hours in a day and when this being the position, denying him the regular pay scale of Class IV employee as also other benefits is violative of his fundamental right as enshrined in Parts III and IV of the Constitution of India. 14. Thus, the findings recorded by the Labour Court are based on correct appreciation of entire evidence and material available on record and it cannot be said that the findings of the Labour Court are erroneous or perverse or patently unreasonable or based on no material or evidence. It also cannot be said that the Labour Court committed any illegality in holding the termination of the services of the petitioner as valid and legal. The findings of the Labour Court do not suffer from any basic illegality or infirmity. 15. Apart from that, under Article 227 of the Constitution of India, the High Court cannot interfere with the exercise of a discretionary power vested in the inferior Court or Tribunal, unless its findings or order is clearly perverse or patently unreasonable. 16. For the reasons mentioned above, no interference is called for with the impugned Judgment and award dated 30.09.2003 (Annex. 3) passed by the Labour Court, Jodhpur (respondent No. 2) in exercise of the powers under Articles 226 and 227 of the Constitution of India and thus, this writ petition is liable to be dismissed. Accordingly, the present writ petition is dismissed. No order as to costs