Heard Mr.Nirav Joshi, learned advocate for Nanavati Associates, learned counsel for the petitioner. He has made the following submissions :
(a) That the respondent-workman was a Badli worker, as is clear from the Statement of Claim made by him before the Tribunal. His services were taken as and when exigency demanded and when permanent workers were not available. The respondent- workman was not working on fixed/monthly salary.
(b) That the terms of Reference were whether the action of the petitioner in denying employment to the respondent-workman on his original post is justified, or not. There were no terms regarding absorption of his services.
Labour Court ("the Labour Court", for short) has fallen into error in directing absorption of the services of the respondent-workman, which is beyond the terms of Reference. The Labour Court has to exercise jurisdiction within the four corners of the terms of Reference, as has been held by the Supreme Court in Bhogpur Co-operative Sugar Mills Limited Vs. Harmesh Kumar, reported in 2006 (13) SCC 28.
(d) That the Labour Court has wrongly granted 50% back-wages to the respondent-workman, in spite of the fact that the respondent-workman has himself deposed in his cross-examination that he was gainfully employed after his termination. However, no reasons have been given by the Labour Court for awarding back-wages.
(e) That in the Statement of Claim made by the respondent-workman, he has not prayed for absorption of his services, which benefit has been granted by the Labour Court without there being a prayer to this effect.
SCA/11769/2012 3/4 ORDER (f) That the petitioner has not terminated the
services of the respondent-workman, as is clear from the Written Statement filed by it before the Labour Court. In fact, the respondent-workman was a Badli worker and his services were taken as and when required. The petitioner has stated in the Written Statement that as and when exigency of service demands, the services of the respondent- workman shall be taken.
(g) That the finding of the Labour Court to the effect that the juniors of the respondent-workman were made permanent is not based on any evidence on record. In fact, the respondent-workman has not been able to prove from which date the persons who are stated to be junior to him, were engaged. In any case, there is no material on record to indicate that juniors were made permanent, therefore, this finding of the Labour Court, and the relief granted on the basis of the same, is beyond the terms of Reference and not based on any material on record.
Issue Notice returnable on 29.10.2012.
SCA/11769/2012 4/4 ORDER By way of ad-interim relief, it is directed that the implementation, execution and operation of the impugned award dated 28.09.2011 and the Notice dated 31.07.2012 issued by the Assistant Labour Commissioner (Central), Adipur, Kutch, shall remain stayed till then.
(Smt. Abhilasha Kumari, J.) Gaurav+