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2001 DIGILAW 1549 (RAJ)

Hari Singh Hada v. State of Rajasthan

2001-09-24

J.C.VERMA

body2001
Honble VERMA, J.–The petitioner is aggrieved against the order dated 1.7.1995 (Annexure-18) whereby the industrial dispute in regard to termination of services of the petitioner have been declined to be referred to the appropriate court. The refusal has been made on the ground that the dispute/reference has been raised after 7 years and that the petitioner had not completed 240 days of service in one calendar year and that the employer had not violated the provisions of Sections 25(g) and 25(f) of the Industrial Disputes Act. (2). The State of Rajasthan by the impugned order has decided the dispute on merits so far the alleged violation of Section 25(g), 25(h) and about the fact whether there is violation of Sec.25(f) of the Industrial Disputes Act or not on completion of 240 days are concerned. (3). It is the contention of the petitioner that the State Government was competent to decide the dispute on merits. The petitioner was posted as Nakedar on 31.1.1983 as per Annexure-1. He was put under suspension on 22.11.1983 and ultimately when he was under suspension, his services were terminated on 28.11.1983. He filed representations. Vide Annexure-4, the Development Officer, Panchayat Samiti had ordered that the petitioner be taken back in service. Vide another letter dated 20.3.1984, the Development Officer once again asked the Sarpanch as to why the petitioner was not being allowed to join duties. (4). On appeal being filed by the petitioner, the Additional Collector, Chittorgarh had set aside the order of termination on the ground that the petitioner was removed while he was under suspension without issuing any charge-sheet and direction was issued that the petitioner could only be removed after issuing the charge-sheet. Once again the petitioner sent reminder. Annexure-5. Vide Annexure-7 in May 1988, the petitioner was taken back in job but on demoted post. Once again a decision was taken vide Annexure-10 on 8.8.1988 that even the posting of the petitioner on the post of Assistant Nakedar was not in accordance with law. The petitioner filed an appeal against the said order, copies of which are attached as Annexures 11, 12 and 13. On 15.7.1992 (Annexure-14) when his appeal was not decided, the petitioner approached the Lokayukt, Rajasthan. Vide Annexure-15 on 14.9.1992 the petitioner was informed that Lokayukt had no jurisdiction to compel the authorities to decide his appeal. (5). The petitioner filed an appeal against the said order, copies of which are attached as Annexures 11, 12 and 13. On 15.7.1992 (Annexure-14) when his appeal was not decided, the petitioner approached the Lokayukt, Rajasthan. Vide Annexure-15 on 14.9.1992 the petitioner was informed that Lokayukt had no jurisdiction to compel the authorities to decide his appeal. (5). The petitioner raised an industrial dispute before the Conciliation Officer in March 1993 stating therein the facts. Vide Annexure-16, the Conciliation Officer had asked the parties to appear. According to the petitioner the employer never participated in the Conciliation proceedings but ultimately the reference was rejected vide Annexure-18. The petitioner submits that in view of the facts mentioned above, the action of the respondent was not in accordance with law. (6). The writ petition was filed in the year 1995 itself. There is no written statement filed nor it is on the record. (7). Reliance is placed on the judgment of the Supreme Court in Gurmail Singh vs. Principal, Govt. College of Education (1), wherein in the case of delay of 8 years in raising an industrial dispute, questioning termination, it was held that the delay would not wipe out dispute and industrial dispute will continue for adjudication even though it is belatedly raised. The only question would be to deprive back wages for the period of delay in raising such a dispute if on merits it is to succeed. The declining of the relief by the Labour Court and the High Court was set aside by the Apex Court and the workman was reinstated with 50% of the back wages. (8). Counsel for the respondents submits that the State Government is competent to decline to refer the dispute if the dispute is raised with the delay of 7 years. A further objection has been taken by the learned counsel for the respondents that the writ petition should have been filed at Jodhpur and not at Jaipur as Chittorgarh falls within the jurisdiction of Jodhpur. (9). In regard to the objection about the delay and raising of industrial dispute, it is no doubt that in the given circumstances and for the expediency so required, the stale dispute can always be declined to refer. (9). In regard to the objection about the delay and raising of industrial dispute, it is no doubt that in the given circumstances and for the expediency so required, the stale dispute can always be declined to refer. But if the workman is able to convince the authorities about his appeal having been filed and appeal being persuaded by him on which no action was taken by the competent authority, in my opinion, it was not a case where it could be said that the workman was sitting totally silent. He had even approached the Lokayukt against the so called illegal termination. (10). Had some opportunity been given to the workman, he would have convinced the authorities to the effect that the dispute did not involve any delay, when the management had not even participated before the Conciliation Officer, as had been alleged. In such situation, the refusal to refer the dispute on the point of delay cannot be sustained. There is no application of mind of the authority who had refused to refer the dispute. The case of the petitioner through-out was that he was removed from service when he was suspended without charge-sheet i.e. during the suspension period and even the Additional Collector had passed an order for taking the petitioner in service, and that he should be charge-sheeted; thus, the workman wanted to say that his removal because of misconduct was not proper without charge-sheet or enquiry. There was no question of any violation of Section 25(f), 25(g) or 25(h) as per the dispute raised. Even otherwise whether the workman had completed 240 days of service or there is violation of Section 25(f) or any juniors were retained violating Section 25(g) or 25(h) was to be determined on merits of the case by leading evidence before the Tribunal. It is settled law that while declining to refer the matter for adjudication to the appropriate Labour authorities, the State Government cannot enter upon the merits of the dispute. The action, therefore, violates the well settled principles of law. (11). In regard to objection being raised by the counsel for the respondents that the writ petition ought to have been filed at Jodhpur and not at Jaipur, in my opinion, there is no merit in such an objection for the reason that the respondent State of Rajasthan which had passed the impugned order is situated at Jaipur. (11). In regard to objection being raised by the counsel for the respondents that the writ petition ought to have been filed at Jodhpur and not at Jaipur, in my opinion, there is no merit in such an objection for the reason that the respondent State of Rajasthan which had passed the impugned order is situated at Jaipur. The order was passed at Jaipur and conveyed from Jaipur, therefore, the writ petition can also be filed at Jaipur coupled with the fact that after the writ having been admitted in the year 1995, it is pending for last more than six years in this court. On such situation, in my opinion, even otherwise, it shall be unjust and shall cause more delay if the objection of the respondent is entertained at this stage. (12). The writ petition is allowed with the direction that the respondents shall reconsider the dispute of the petitioner for referring it to the appropriate Labour Court within one month from the date of receipt of certified copy of this order and on the reference having been so made, the concerned Labour Court shall try to decide the dispute within one year thereafter.