1. The petitioner has sought to challenge award dated 16/12/2000 of Industrial Tribunal (C) in reference (ITC) No. 13/95 whereby the respondent has been awarded reinstatement with full back wages from 1/1/1995 with all the other attendant benefits and cost of Rs. 500/. Admittedly, the respondent was employed since the year 1982 as hot weather Waterman at Devshana station and had worked in summer on seasonal employment till the year 1990. It was claimed by the respondent before the Tribunal that the respondent had already completed 120 days of service and therefore, he was entitled to be granted temporary status on 1/5/1983. However, while many of his junior colleagues were reemployed and given temporary status, he was denied employment.
2. The petitioner herein had failed to file any written statement before the Tribunal. But it was argued on their behalf that the respondent was newly appointed in the year 1985 for the seasonal work. Thereafter, he had attended the work in 1988 only for seven days and in 1989 for forty two days and in 1990 for only 31 days. In absence of any evidence being led by the petitioner, the Tribunal relied upon the material produced by the respondent and found that the respondent had completed the service of 120 days in May 1983. Thereafter, he was not employed in the year 1984 on the pretext that there was no vacancy. Thereafter, he had demanded employment by letter dated 5/4/1988. The workman relied upon Circular dated 19/6/1985 of the petitioner and there was no evidence led by the petitioner to suggest that the respondent was remaining absent after 1990 by his own default. It also appeared from the record before the Tribunal that the service of other similar workmen were regularized or at least they were employed for limited period from year to year and even new employees were enrolled for the seasonal work. Therefore, the Tribunal was pleased to make the impugned award and giving effect to the order of back wages from 1/1/1995, in which year the reference was preferred.
3. While challenging the award it is contended by the petitioner that the respondent had worked for very few days in each calender year from 1982 to 1989, except in the year 1984, 1987 and 1988 and relied upon letter dated 25/1/1985 of the Railway Board which was circulated by the Divisional Railway Manager's Office on 30/4/1985. Thus, the main contention of the petitioner is based upon facts, for which, they did not lead any evidence before the Tribunal, and the aforesaid Circular material part of which reads as under:
“Sub: Grant of regular scale of pay to Casual labour engaged as Watermen during Summer Season.
In the meeting held on 12th Aug, 1983 and subsequently on 30th July, 1984 with the staff side of the Departmental Council of the JCM, the Staff side demanded that services rendered by the Casual Watermen in spells every year should be aggregated for the purpose of eligibility for regular scale of pay etc. Similar proposal has also been received from some of Railway Administrations.
The Ministry of Rly, have examined this matter in the light of instructions contained in their letter No. E (NG) II/80/CL/25 dt. 21.10.80 & 2.4.81.
They have now decided that the casual watermen employed in the summer seasons should be eligible for temporary status on completion of 120 days of continuous employment. For the purpose of counting the total number of days of continuous employment various spells of engagement as casual watermen may be aggregated provided the gap between any two spells of employment has been caused due to the season being over and/or there being no work for them in such establishment provided further that if a person engaged in the previous year is given an opportunity to work in the same hot weather establishment in the subsequent year but he fails to avail of that opportunity, he will have to start afresh in the event of his being so engaged, again on any future occasion.”
4. In view of the above set of facts and contentions, the Tribunal appears to have resolved the dispute by ordering reinstatement of the respondent, which would also offer an opportunity to claim temporary status. However, the order to pay full back wages from 1/1/1995 would cause practical problem of calculation and in absence of sufficient evidence on record, it would be difficult to ascertain the last drawn salary or wages of the respondent workman. It is also clear that the petitioners are only ordered to provide work to the petitioner as hot weather Waterman from 1/1/1995, which does not automatically translate into any regular service or status of a temporary employee.
Therefore, the petition is partly allowed and the impugned award is modified to the extent that the respondent shall be provided with work as hot weather Waterman and shall be granted such other attendant benefits as he may be eligible from 1/5/2012 and shall be paid by way of back wages and other benefits the lump sum amount of Rs. 18962/ as agreed by learned Counsels after reconciliation of rival calculations of due back wages. Interim relief staying the operation of the award having been granted herein on 10/10/2002, is vacated and Rule is made absolute in the aforesaid terms with cost of Rs. 1000/ which shall be paid by the petitioner to the respondent with the lump sum amount as aforesaid.
(D.H.WAGHELA, J) *asma