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2003 DIGILAW 817 (RAJ)

State of Rajasthan v. Vasna Ram

2003-05-27

O.P.BISHNOI, RAJESH BALIA

body2003
JUDGMENT 1. - Heard learned counsel for the parties. 2. This appeal is directed against the judgment of learned Single Judge dated 12.9.2001 by which the learned Single Judge has declined to interfere with the award passed by the learned Labour Court, Jodhpur on 20th Nov., 2000 at the instance of appellants-petitioners and dismissed the writ petition. 3. The respondent-workman had filed a writ petition before this Court as S.B. Civil Writ Petition No. 2058/1992 challenging the termination of his services vide order dated 4.7.1992 which was objected to by the present appellants that the dispute raised by the respondent- workman was an 10 industrial dispute and it ought to be subjected to industrial adjudication under the Industrial Disputes Act. This objection was sustained by this Court and the workman was relegated to seek remedy under the Industrial Disputes Act, 1947 against the present appellants. Consequently, the appropriate Government made a reference vide Notification dated 24th Dec., 15 1996 about the validity of the termination of respondent-workman's services. 4. We may notice here that there has been no confusion about the date of retrenchment to be 7.4.1992 at any stage prior to filing of the writ petition before this Court. It appears that inadvertently, the date of termination was mentioned in the order of reference as 14.2.1993. However, in the facts and circumstances of the case and perusing the claims filed by the workman and counter-claim submitted by the present appellants, the parties were never in doubt at any stage about the subject matter of dispute in the Reference, which was about the retrenchment effected on 7.4 1992. 5. On the basis of pleadings and material placed before the Tribunal, the Tribunal found that the workman has actually worked as many as for 339 days in the year 1990- 91 and 360 days in the year 1991-92. It also found that in each of calendar year he has worked for 240 days. 5. On the basis of pleadings and material placed before the Tribunal, the Tribunal found that the workman has actually worked as many as for 339 days in the year 1990- 91 and 360 days in the year 1991-92. It also found that in each of calendar year he has worked for 240 days. As a matter of fact, on the aforesaid finding the workman fulfiled the condition of being in continuous employment of one year or more as required under Section 25-F read Section 25-B(1) of the Industrial Disputes Act, 1947 and there was no requirement to further investigate into the question whether the workman fulfilled the condition of Section 25-B(2) of the Industrial Disputes Act to be treated on continuous employment of one year or on the yards-tic of actual working for 240 days within 12 calender month proceeding date of retrenchment. It also noticed the plea of the present appellants that the 10 workman was paid Rs. 1144/- vide notice Annex. 7 and retrenchment compensation as required under Section 25-F(1) and (2). On this aspect the Labour Court found that during the relevant period the wages of the workman were Rs. 22/- per day and he has been paid salary in lieu of one month's notice for a period of 26 days only and also compensation retrenchment for 2 years continuous service for 26 days only. 6. In our opinion, Section 25-F(b) requires that the workman be paid compensation at the time of retrenchment, which shall be equivalent to days average pay for each year of continuous service. There is no ambiguity that the requirement of payment of retrenchment compensation is on the basis of days wages for each completed year and it has no relation to the daily wages. 7. Coupled with the finding that the persons employed after the respondent-workman, were continuing in service and those who were junior to the workman, also continued in service and have been conferred with semi-permanent status, retrenchment was also proved to be in violation of Section 25-G of the Industrial Disputes Act. 8. With these findings, the retrenchment was found to be invalid and reinstating the workman with 50% of back wages from the date of notification was justified. 9. 8. With these findings, the retrenchment was found to be invalid and reinstating the workman with 50% of back wages from the date of notification was justified. 9. The question raised before the learned Single Judge was firstly that the Forest Department is not an industry and, therefore, the benefit of provisions of Industrial Disputes Act cannot be extended to the workman of appellant department. The contention has been rejected by the learned Single Judge, rightly for the reason, firstly because notwithstanding having raised these contentions in counter claim, there is no whisper in the award that this contention was pursued before it. Secondly the contention before the learned Single Judge was that the reference was necessitated solely because when the workman had challenged the validity of termination in the first instance soon after termination of service, it was contended successfully, solely on the ground that this dispute is an industrial dispute and the employee ought to have resorted to raise an industrial dispute under - Industrial Disputes Act, 1947. Having succeeded on the ground, which involves in it that the establishment at which the employee was employed is an industry. Therefore, the applicability of the Industrial Disputes Act to the as appellants was admitted by the department. It was only because of that reason that earlier petition was dismissed and respondent sought his remedy under Industrial Disputes Act. The question whether the employer at the Forest Department had passed the order of termination of the workman on fad which has to be contested by joining issue on validity of retrenchment and cannot be resisted on an abstract principle of Forest Department in no circumstances can be an industry. 10. The other contention raised before the learned Single Judge and also before us was that since the order of retrenchment mentioned in the reference dated 14.2.1993, the Tribunal and learned Single Judge have adjudicated upon the validity of retrenchment dated 7.4.1992. We are of the opinion that this contention is without substance. The parties were never at confusion about the actual date of retrenchment and validity of which is under subject-matter of reference. 11. The retrenchment order passed on 7.4.1992 is not in dispute. We are of the opinion that this contention is without substance. The parties were never at confusion about the actual date of retrenchment and validity of which is under subject-matter of reference. 11. The retrenchment order passed on 7.4.1992 is not in dispute. It was subjected to the writ petition filed earlier also and on the plea of alternative remedy raised by the workman had relegated to seek remedy under Industrial Disputes Act is not in dispute and a reference has been made to the Labour Court by appropriate Government for adjudication thereafter in deference to that order. Had this discrepancy been pointed out at the outset it could have been corrected by the appropriate corrigendum. It would be too harsh now at this stage to non-suit the workman on such a technical plea at the cost of substantial plea at the costs of substantial justice, particularly when such plea has been raised for the first time in the proceedings before this Court. Before the Labour Court the parties were never in any doubt about what they are contesting. 12. On the merit of the case, the learned Single Judge has found that the finding of fact recorded by the Tribunal is founded on the relevant material placed before the Tribunal and with cogent reasons, which cannot be interfered in extra-ordinary jurisdiction seeking issue of writ of certiorari. 13. We are in agreement with the finding that the workman has worked for 393 days in the year 1991 and 360 days in the year 1992. So also the retrenchment compensation paid to the workman as required under Section 25-F(b) was also correct, in the light of admitted facts and there is no dispute that the persons junior to the respondent workman are working with a semi-permanent status with the department. Therefore, there is no substance to challenge the award on merit also. 14. Accordingly, this appeal fails and is hereby dismissed.Appeal Dismissed. *******