DISTRICT AYURVEDIC OFFICER v. RANJITSINH M JHALA

CORAM : MR.JUSTICE H.K.RATHOD Date of decision: 18/04/2000 ORAL JUDGEMENT (cid:9) (cid:9)Learned advocate Mr.D.D.Vyas has appeared for the petitioner and learned advocate Mr.D.A.Surani has appeared for the respondent workman. (cid:9)In the present petition, the award passed by the labour court, Surendranagar in Reference (LCS) No. 1055 of 1989 dated 20th August, 1998 has been challenged by the petitioner whereby the petitioner has been directed to reinstate the respondent workman in service with continuity of service and with full back wages for the intervening period. At annexure B,page 20 of the petition, the petitioner has produced death certificate of the respondent workman wherein it is mentioned that the respondent Jhala Ranjitsinh M. has died on22nd December, 1996, during the pendency of the reference before the labour court and also before publication of the award passed by the labour court. (cid:9)Before the labour court, the respondent workman has challenged theorderof termiation dated 4th April,

1988. According to the respondent workman, he was working as peon against the vacancy of permanent peon on ad hoc basis from 1st October,1984 and he continued to remain in service upto 3rd April, 1988 and meanwhile, the respondent workman has completed 240 days' continuous service within 12 months preceding the date of termination of his services and that at the time of terminating his services, the provisions of section 25F were not complied with by the petitioner and, therefore, it was the submission of the respondent that the impugned order of termination is bad. It was also the submission of the respondent workman before the labour court that he was working as a peon against the post of one Mr. Mirani who was full time employee and the respondent has prayed before the labour court that the respondent is entitled to hold the post as a permanent employee of the petitioner. (cid:9)The labour court has considered the documentExh.

17 which is a letter dated 19th November, 1984 and Exh. 22 as per which the respondent was appointed against the vacancy of permanent employee and he had worked from1984 to 1988 against the vacancy of permanent peon and, therefore, the respondent is entitled to the benefit of permanency as a fulltime employee of the petitioner. The labour court has considered the evidence on record and has recorded finding of fact that the respondent had completed 240 days' continuous service within 12 months preceding the date of termination and that the petitioner has also not complied with the provisions of section 25F of the ID Act at the time of terminating the services of the respondent workman and, therefore, the leabour court has declared the impugned order of termination as illelgal and has set aside the same and consequently, the labour court has directed the petitioner to reinstate the respondent workman in service with continuity of service and with full back wages for the intervening period.

The services of the respondent workman was terminated on 4th April, 198 and the workman has died on 22nd April, 1986 as per the death certificate at page 20 of the petition. The labour court has further observed that considering Exh. 11, from1985, the respondent has given an application for making him permanent employee-full time peon which was recommended by the Medical Officer, Vadhwan with an opinion that if the respondent is made permanent and full time employee, then, there is no difficulty but this recommendation of the Medical Officer, Vadhwan has remained without any consideration and, therefore, the labour court has observed in pargraph 8 that thus the respondent is entitled to the post of permanent peon on permanent basis. However, in the operating portion, no such direction has been given by the labour court. In the operating portion of the impugned award, the only direction is that of reinstatement of the respondent workman with continuity of service with full back wages for the intervening period.

(cid:9)Learned advocate Mr.Vyas apearing for the petitioner has submitted that the labour court has no jurisdiction to consider the case of the respondent beyond the terms of the reference and the terms of reference is to challenge the termination order with a prayer for reinstatement with continuity of service and with full back wages. So, at the time of termination of service, the respondent was working as a part time peon for two hours in a day and, therefore, he has submitted that the labour court cannot have any power or jurisdiction to pass any order or cannot make any observation which would go beyond the terms of the reference. As against that, learned advocate Mr.Surani has relied upon the decisison of this court reported in 1998 (1) LLJ 1127 in case of Vaternary Officer and Anr. versus Rajendra R.Jhala. Relying upon the said decision, he has submitted that in this case, the order of termination has been held to be invalid and the tribunal has directed that the employee should be regularized and payment of regular scale is justified on equity, fair play and justice.

Inthe said case, the order of termination has been chalenged by the workman concerned before the labour court and the labour court has decided that before terminating the services of the workman concerned, the procedure prescribed under section 25F of the ID Act has not been followed and, therefore, reinstatement has been granted but after reinstatement, again the workman concerned has been terminated and thereafter, petition has been filed challenging subsequent termination by amending the writ petition. At that time, the court has considered the facts of that case and has come to the conclusion that after appointment of the concerned workman, no regular selection was held orregular appointment ws made to which the workmancantake part and no such chance was given and in the case before hand, such are not the facts. In the case before hand, the respondent workman concerned has died on 22nd December, 1996 and, therefore, question of regularizing his service and giving him permancney benefit is out of question.

However, according to my opinion, the labour court has no jurisdiction to decide any question which is beyond the terms of reference and, the observations made by the labour court to the effect that the respondent is entitled to the permanent post of peon in the petitioner is beyond the terms of reference because this was not the case or dispute which was raised before the labour court and such dispute was not referred toby the appropriate Government to the labour court for adjudication. However, such observations can, certainly, not have any bearing on the issue of reinstatement of the respondent workman since the same is not possible because the respondent has died on 22nd December, 1996 and therefore, directions qua reinstatement of the respondent workman are not required to be implemented However, as per the impugned award, the petitioner is required to be directed to treat the respondent to have continued in service continuously as if his services were never terminated and on that basis, the petitioner is required to calculate the back wages from the date of termination of services of the respondent till the date of his death while taking into consideration the revision in pay which has taken place from time to time and thus, the petitioner is required to be directed to pay back wages from the date of his termination till the date of his death to his heirs and legal representatives.