Research › Browse › Judgment

Rajasthan High Court · body

1995 DIGILAW 805 (RAJ)

Om Prakash Raigar v. State of Rajasthan

1995-09-05

A.P.RAVANI, M.A.A.KHAN

body1995
Judgment A.P. Ravani, CJ.-The appellant workman has challenged the legality and validity of the Judgment and order passed by the learned Single Judge in S.B. Civil Writ Petition No. 2116 of 1983 dated January 11, 1993. By the aforesaid Judgment , the learned Single Judge, while holding that there is a breach of Section 25-F of the Industrial Disputes Act, 1947 (for short ‘the Act’) in terminating the services of the petitioner-appellant did not grant relief of reinstatement of service. The learned Single Judge held that the amount of Rs. 25,000/-shall be paid to the petitioner-appellant by way of compensation for removing him from service and that would be the proper relief The learned Single Judge directed Respondent No. 2 i.e. the Food Craft Institute (Rajasthan) Society, Jaipur to make the payment of aforesaid amount. It is against this Judgment and order, that this appeal is filed by the petitioner-workman. 2. Theappellant belongs to Scheduled Caste. He was appointed as Class IV employee in the Food Craft Institute, Jaipur, i.e. the Respondent No. 2, vide order dated November 25, 1976. Initially, he was appointed for a fixed tenure of four months, which was extended from time to time. By an order dated April 4, 1983, he was informed that his services will stand terminated w.e.f July 3, 1983. Thus, his services have been terminated w.e.f July 3, 1983 by giving him three months’ notice. The petitioner-appellant challenged the legality and validity of the order of termination of his services by filing S.B. Civil Writ Petition No. 2116/83 on September 20, 1983. It was alleged that there was contravention of provisions of Section 25-F of the Act, while terminating his services. The respondents appeared in the petition. After hearing the parties, the learned Single Judge, passed the aforesaid orders. The appellant specifically alleged that the provisions of Section 25-F of the Act, were not complied with before retrenching him from services. In this connection, reply to the writ petition filed by the respondents was to the effect that since three months notice was given to the petitioner, there was no need to pay retrenchment compensation to the petitioner-appellant. Thus, as observed by the learned Single Judge, there was no positive denial of the allegations that the provisions of Section 25-F of the Act, were not complied with. Thus, as observed by the learned Single Judge, there was no positive denial of the allegations that the provisions of Section 25-F of the Act, were not complied with. It is the settled position of law that the pre-conditions mentioned in Section 25-F of the Act are mandatory. If a workman is retrenched from service otherwise than in accordance with the law and particularly without complying with the pre-conditions mentioned in Section 25-F of the Act, the termination of service would be void ab-initio. In this connection, reference may be made to the decision of the Supreme Court in the case Mohan Lal vs. Management, Bharat Electronics Ltd., reported in (198 1-II-LLJ-70) in para 7 of the reported decision, the Supreme Court has, inter alia, observed th “Niceties and semantics apart, termination by the employer of the service of a workman for any reason whatsoever would constitute retrenchment except in cases excepted in the Section itself The excepted or excluded cases are where termination is by way of punishment inflicted by way of disciplinary action, voluntary retirement of the workman, retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf , and termination of the service of a workman on the ground of continued ill-health”. In a subsequent decision in the case Gammon India Limited vs. Niranjan Dass reported in (1984-I-LLJ-233), the Supreme Court held that termination on ground of reduction in volume of business, amounted to retrenchment. One month’s notice of such termination cannot be treated as notice under Section 25-F (a) of the Act. The Supreme Court further held that in absence of compliance of pre-requisites of Section 25-F, the retrenchment bringing about the termination would be ab-initio void. The Supreme Court further directed that continuance in service with full back wages along with all benefits, interest etc. was required to be awarded and ordered accordingly. In the case of Narotam Chopra vs. Presiding Officer, Labour Court & Ors., reported in 1989 Supp. (2) SCC 97, the Supreme Court has reiterated the same principle. 3. In view of the aforesaid settled legal position, we fail to understand how a workman could be told that he would be paid Rs. 25,000/-in lieu of reinstatement in service and backwages. (2) SCC 97, the Supreme Court has reiterated the same principle. 3. In view of the aforesaid settled legal position, we fail to understand how a workman could be told that he would be paid Rs. 25,000/-in lieu of reinstatement in service and backwages. The learned Single Judge did hold that there was non-compliance of Section 25-F of the Act and the services of the workman were terminated. Thus, in view of this finding the conclusion was inescapable that the termination of service was ab-initio void. The workman has to be reinstated and has got to be awarded all the benefits of backwages and continuity in service as if he has all throughout continued in service. Simply because it may cause some hardship to the respondent-employer, the workman cannot be denied his legitimate rights and benefits. 4. There is nothing on record to show that during the intervening period the petitioner-workman was gainfully employed. The appellant-workman would be entitled to claim full back wages and all other benefits as if he had continued in service. However, learned Counsel for the petitioner-appellant fairly conceded that if an amount of backwages to the extent of 60% or around 60% is granted the workman would be satisfied. 5. Having regard to the overall facts and circumstances and in view of the aforesaid statement made by the learned Counsel for the petitioner-appellant, we are of the opinion that the ends of justice would be met if the workman is ordered to be reinstated in service with 55% of backwages. It is clarified that the workman shall be considered to be in continuous service for all purposes. His backwages shall be calculated on the basis that he had been in service for the entire intervening period. Thereafter, 55% of such backwages shall be paid to him. While calculating the backwages all other benefits which would have otherwise accrued to him, had he been in service, shall also be taken into consideration. 6. In the result, the appeal is allowed. The Judgment and order passed by the learned Single Judge directing the respondents to pay Rs. 25,000/-in lieu of reinstatement of the workman, is quashed and set aside. It is directed that the petitioner-appellant shall be reinstated in service with 55% of the backwages. 6. In the result, the appeal is allowed. The Judgment and order passed by the learned Single Judge directing the respondents to pay Rs. 25,000/-in lieu of reinstatement of the workman, is quashed and set aside. It is directed that the petitioner-appellant shall be reinstated in service with 55% of the backwages. The amount of 55% of backwages shall be calculated on the basis that the workman was continuously in service and has earned all consequential benefits as if the order of termination was never passed. The calculation of the amount of back wages and other benefits as indicated hereinabove shall be made by the respondents within a period of two months from today i.e. latest by November 6, 1995. The amount payable to the petitioner appellant shall be paid to him atleast by November 25, 1995. If the amount is not paid by the aforesaid date, it shall carry interest at the rate of 15% per annum from the date of this Judgment till the amount is paid. The direction as regards reinstatement of the workman shall be complied with by the respondents and particularly by Respondent No. 2 latest by September 30, 1995. If the workman is not actually reinstated in service by September 30, 1995 he shall be entitled to claim full wages from October 1, 1995 and Respondent No. 2 shall pay full amount of wages to him from October 1, 1995. 7. The appeal stands allowed accordingly to the aforesaid extent.