State of Rajasthan v. Jaisa Ram — 1999 DIGILAW 435 (RAJ)

Honble PATIL, J.–These two writ petitions are filed, one by the claimant and the other by the respondents in Labour Dispute Case No. 62/1996 challenging the validity and correctness of the award dated 9.3.1998 passed by the Labour Court to the extent they are aggrieved by the said award. For convenience, in this order I will refer to them as the claimant and the respondents as described in the said dis- pute before the Labour Court. (2). In brief, the facts leading to the filing of the writ petitions are the following: (3). The State of Rajasthan referred an industrial dispute under Section 10 of the Industrial Disputes Act 1947 (for short `the Act) vide Notification dated 4.3.1996 to the Labour Court, Jodhpur. The said reference was registered in the Labour Court as Labour Dispute Case No. 62/96. (4). The claimant submitted his claim petition contending that he had worked for more than 240 days in a year,but without complying with the provisions relating to retrenchment u/Secs. 25-F, 25-H and Rule 77, he was retrenched from service. Hence, his retrenchment was to be set aside with all consequential benefits. (5). The respondents, in the claim petition, took up the stand that before completing 240 days in a year, the claimant himself left the engagement; he was not a workman and, as such, neither there was retrenchment nor contravention of Section 25-F of the act; the claimant was working in Sub Division-I of the Public Health Engineering Department, Barmer, but subsequently, at his request, unit was changed to Sub Division-II, Public Health Engineering Department, Barmer; he was junior-most in Sub Division-Ii, hence, even on that account, the services of no junior person than that of the claimant were made substantive. (6). After hearing the parties, on the basis of the evidence placed before the Labour Court, it passed the Award on 9.3.1998 holding that the claimant was retrenched illegally and, as such, a direction was given that he should be reinstated in service with back wages i.e. 1/4th of salary payable from the date of reference i.e. 4.3.1996 till the date of reinstatement in service. (7). The respondents have filed S.B. Civil Writ Petition No. 1559/98 challenging the Award dated 9.3.1998 (Annex.3) and sought for quashing the same. (7). The respondents have filed S.B. Civil Writ Petition No. 1559/98 challenging the Award dated 9.3.1998 (Annex.3) and sought for quashing the same. The claimant has filed S.B. Civil Writ Petition No. 4245/98 aggrieved by the said Award to the extent of refusal of his claim for continuity of service from the date of retrenchment till the date of reinstatement and claiming full back wages for the entire period he was out of service instead of awarding only 25% of back wages, that too from the date of the reference. Thus, as already stated above, the two writ petitions are filed challenging the very same Award passed by the Labour Court, Jodhpur. (8). In the writ petition No. 1559/98, the claimant has filed reply resisting the claim of the respondents. In paragraph 4 of the reply, it was denied that the respon- dents had stated before the Labour Court in their reply that the claimant was a casual daily rated labour and his unit was changed. Again in paragraph 6(ii) of the reply, it is stated that the respondents did not specifically plead that the Department was not an Industry as defined in the Act. The claimant has also stated in the reply that the Labour Court, on an examination and consideration of the material placed before it, has recorded a finding of fact and this Court may not disturb such finding in exercise of writ jurisdiction and this Court may not act as Appellate Court. (9). The learned counsel for the parties argued in support and justification of their respective contentions raised before the Labour Court and as well as the grounds raised in the respective writ petitions. (10). I have considered the submissions made by the learned counsel for the parties. (11). The Labour Court, as can be seen from the Award Annex.3, has recorded a finding of fact that the claimant worked for more than 240 days in a year prior to his retrenchment from service. This finding is based on the evidence contained in the affidavits, muster-rolls produced by the respondent and the material brought out in the cross examination of the Assistant Engineer on behalf of the respondents and the documentary evidence produced by the claimant. It is not shown to me that this finding that the claimant worked for more than 240 days in a year was based on no evidence or perverse. It is not shown to me that this finding that the claimant worked for more than 240 days in a year was based on no evidence or perverse. hence, being conscious of the fact that I am ex- ercising writ jurisdiction and I cannot sit as Appellate Court in examining the correctness of the findings of the Labour Court, I do not find any good or valid reason to disagree with the finding of fact so recorded by the Labour Court, particularly so when the respondents failed to prove their case that the claimant himself abandoned his service. It is admitted by the Assistant Engineer himself on behalf of the respondents that no notice was given prior to retrenchment of the claimant. Once it was found that he had worked for more than 240 days in a year prior to his retrenchment of the claimant. Once it was found that he had worked for more than 240 days in a year prior to his retrenchment and no notice was given complying with the requirement of Section 25-F of the Act, the claimant was entitled for the relief of reinstatement in service and the Labour Court was right in directing the respondents to reinstate the claimant in service. (12). From the records placed before me, it is clear that the respondents did not raise before the Labour Court that the claimant was only a daily rated casual labour and even with regard to the Department in which the claimant was working, there was no specific averment that it was not an Industry. The Department was engaged in supply of water. In the absence of specific pleadings and the material to support that the Department was not an Industry, the Labour Court having regard to the evidence placed on record, was right in its conclusion that the claimant was a workman covered by the provisions of the Act. (13). The Labour Court discussing the material on record has recorded a finding of fact that it was unlikely that the claimant was not gainfully employed after his retrenchment from service. (13). The Labour Court discussing the material on record has recorded a finding of fact that it was unlikely that the claimant was not gainfully employed after his retrenchment from service. In recording such finding of fact, the Labour Court has relied on the fact that the claimant registered himself as a Contractor; he had gained experience in the Water Supply Department for 3-1/2 years; his father and brother were also working in the same Department; he was looking after the land of his father etc. This is also a finding of fact supported by the evidence. I have no good reason to say that this finding was either perverse or not supported by the evidence. Under the circumstances, the Labour Court was justified in awarding 25% of the back wages, that too from thedate of the reference, taking note of the fact that the claimant was retrenched from service on 30.6.1989, but he made a claim only in 1995. (14). The contention of the respondents that on account of the delay, the claim of the claimant should not have been entertained, cannot be accepted having rega- rd to the facts and circumstances of the case, that too at this stage in the writ petition when the Labour Court after holding enquiry passed the Award on 9.3.1998. The Labour Court was justified in refusing back wages to the claimant from the date of retrenchment till the date of the reference i.e. 14.3.1996 taking note of the delay in raising the industrial dispute. (15). As regards the continuity of service claimed by the claimant from the date of retrenchment till the date of reference, the Labour Court has given valid reasons as to why he was not entitled for continuity of service from the date of retrenchment till the date of reference. In recording such finding, the Labour Court took note of the fact that the case of the claimant was different from those persons whose services were regularised on 31.3.1992; the claimant raised the industrial dispute after about 5-6 years of his retrenchment; if the claimants services are treated as continuous one, it would affect the persons who were not made party and would also create administrative problems. Under the circumstances, the Labour Court was right in its conclusion that claimant cannot claim continuity of service from the date of retrenchment till the date of the reference. (16). Under the circumstances, the Labour Court was right in its conclusion that claimant cannot claim continuity of service from the date of retrenchment till the date of the reference. (16). The learned counsel for the parties cited few decisions on the points that a daily wager has no right of reinstatement, the Department of the respondents is not an Industry and the writ Court may not sit as a Court of Appeal. In my view, it is not necessary to refer to them, having regard to the conclusions arrived at on the facts found. As to the contention that the claimant was a daily wager, it is found that no such plea was taken by the respondents before the Labour Court, so also that the Department is not an Industry was not specifically pleaded before the Labour Court and no material was placed to support the contention that the Department of the respondents was not an Industry in relation to the claimant and the nature of work. (17). Thus, having regard to all aspects and looking from every angle, the Award impugned in these writ petitions, in my view, is well balanced and justified. I do not find any valid or good ground to interfere with the said Award. (18). In the result, for the reasons stated, finding no merit in both the writ petitions, I dismiss them, but with no order as to costs.