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2005 DIGILAW 1802 (RAJ)

State of Rajasthan v. Jai Singh

2005-07-18

R.P.VYAS

body2005
Judgment R.P. Vyas, J.-The instant petition has been filed by the petitioner with the prayer that the Judgment and award dated 04.07.2003 Annexure-5 passed by the learned Labour Court, Jodhpur may be quashed and set aside. 2. The brief facts of the case are that the respondent No. 1 workman raised an industrial dispute before the Conciliation Officer. However, the said conciliation proceedings failed and the Conciliation Officer submitted failure report to the appropriate Government. The appropriate Government vide notification dated 212.2000 in the matter for adjudication to the learned Labour Court, Jodhpur. 3. The learned Labour Court issued notices to the parties. The respondent No. 1 workman submitted statement of claim alleging, inter alia, that he was engaged as a Beldar on 01.04.1988 and was declared semi-permanent on 01.04.1990. The claimant continued to work till 01.02.19998 and, thereafter, he could not join the duties due to his illness. He got his treatment from 01.03.1998 to 24.05.1999 and he suffered mental and physical agony and remained in semi-conscious state. It has also been alleged that for his checking, a medical board was also Constituted. The claimant also alleged that even after information of his less, his services were retrenched by the order dated 24.02.1999 under Section 10(3) of the Standing Orders. As soon as the claimant recovered his health, he submitted an application mentioning therein the reason of his ill-health and also enclosed the report of the Medical Board, but his application was not considered. 4. Written statement was filed by the petitioner in which it was alleged that the sevices of respondent-workman were retrenched as per rules. The respondent claimant without any information remained absent from 01.02.1998 and did not attend the office till his retrenchment on 24.02.1999 nor he informed about his illness. The medical board was also got convened on 05.07.1999 which was also not as per rules. If he was really ill, he could have sent information about the illness. In these circumstances, when he did not join his duties, his services were retrenched after following due process of law as provided under Section 10(3) of the Standing Order. Before retrenchment, a registered notice was sent to the respondent-claimant on 02.06.1998 at his residential address. Lastly a notice was served through publication in the newspaper "Rajasthan Patrika" on 29.08.1998. In these circumstances, when he did not join his duties, his services were retrenched after following due process of law as provided under Section 10(3) of the Standing Order. Before retrenchment, a registered notice was sent to the respondent-claimant on 02.06.1998 at his residential address. Lastly a notice was served through publication in the newspaper "Rajasthan Patrika" on 29.08.1998. It has also been submitted in the reply that in the representation dated 211.2000, the respondent-workman has stated that he attended the office on 06.07.1999, whereas before the learned Tribunal he has averred that he attended the office on 13.08.1999 after recovery of his health. Thus, both the stands of the respondent -workman are self contradictory. 5. After recording evidence of both the parties, the learned Labour Court, Jodhpur vide its Judgment and award dated 04.07.2003 (Annexure-5), allowed the claim petition filed by the respondent No.2 -workman and directed reinstatement of respondent -workman with 25% back-wages from the date of reference. 6. In the instant petition, the main contention of the petitioner is that the learned Labour Court did not consider a very important and only aspect of the matter that the claimant/non-petitioner was retrenched after following the due process of law on his willful absence from duty for a considerable long period. The registered notice was served upon the respondent-workman and thereafter a notice was also got published in the newspaper "Rajasthan Patrika", despite that the respondent-workman did not submit any reply nor attended the duties. 7. On the other hand, the learned Counsel for the respondent has submitted that the impugned Judgment and award passed by the Labour Court is based on correct appreciation of evidence available on record and the same does not require any interference by this Court. 8. I have heard the learned Counsel for the parties at length and scrutinised and scanned the material available on record. 9. In my opinion, the findings recorded by the learned Labour Court are based on correct appreciation of evidence. The services of the respondent-workman were terminated in view of Clause 10 (3) of the Standing Order on account of absent from duty for a period of more than 8 days, but before terminating the services of the petitioner, principles of natural justice have not been followed, in as much as, no departmental enquiry has been initiated against the respondent-workman. The services of the respondent-workman were terminated in view of Clause 10 (3) of the Standing Order on account of absent from duty for a period of more than 8 days, but before terminating the services of the petitioner, principles of natural justice have not been followed, in as much as, no departmental enquiry has been initiated against the respondent-workman. Even if there is provision in the standing order for termination of service on account of willful absent, but that too, must have been terminated after following the due process of law. Admittedly, in the instant case, before terminating the services of the respondent - workman, principles of natural justice have not been followed and no departmental enquiry has been initiated before terminating the services of the respondent-workman. The learned Labour Court has also relied on the catena of Judgment s of the Honble Supreme Court, in which it has been held that despite provision of termination of services on account of willful absent in the standing order, the same should be terminated after following the principles of natural justice. In this regard, the learned Counsel for the respondent-workman has also relied on the following decision, which are fully applicable in this case: 1996 (1) LLJ (Raj.) 152 - Rajasthan State Electricity Board vs. The judge, Labour Court and Anr. 1993 (II) CSJ (SC) 353 - D.K. Yadav vs. M/s. J.M.A Industries Ltd. 1982 1 SCC 645 - L Robert DSourza vs. Executive Engineer, Southern Railway & Ors. 10. It is well settled law that right of life enshrined under Article 21 of the Constitution of India would include right to livelihood. The order of termination of the services of an employee/workman visits with civil consequences of jeopardizing not only his/her livelihood, but also career and livelihood of dependents. Therefore, before taking any action putting an end to the tenure of an employee/workman, fair play requires that a reasonable opportunity to put forth his case is given and domestic enquiry is conducted complying with the principles of natural justice. 11. In the present case, no departmental enquiry has been conducted before terminating the services of the respondents-workman. 12. The learned Labour Court has also observed that the respondent-workman has also informed the Department about his illness, and this fact has not been controverted by the Department. In these circumstances, it was all the more necessary to initiate the departmental enquiry. In the present case, no departmental enquiry has been conducted before terminating the services of the respondents-workman. 12. The learned Labour Court has also observed that the respondent-workman has also informed the Department about his illness, and this fact has not been controverted by the Department. In these circumstances, it was all the more necessary to initiate the departmental enquiry. 13. Thus, the findings of facts recorded by the Labour Court are based on correct appreciation of entire evidence and material available on record and it cannot be said that the findings of the Labour Court are erroneous or perverse or patently unreasonable or based on no material on record. The findings of facts recorded by the Labour Court do not suffer from any basic illegality or infirmity. 14. Apart from that, under Article 227 of the Constitution of India, the High Court cannot interfere with the exercise of the discretionary power vested in the inferior Court or Tribunal, unless its findings are clearly perverse or patently unreasonable. While exercising the powers under Article 227 of the Constitution of India, the High Court does not act as Court of appeal. 15. The High Courts power of revision under Article 227 of the Constitution would be restricted to interference in cases of grave dereliction of duty or flagrant violation of law, and would be exercised most sparingly, in cases where grave injustice would be done unless the High Court interferes. It cannot be used as appellate or revisional power nor will the High Court, in exercise of this power, substitute its own Judgment for that of the inferior Court, whether on a question of fact, or of law, or interfere with the intra vires exercise of a discretionary power, unless it is arbitrary or capricious, or unless there was no evidence at all on which the inferior Court could have come to conclusion it did or there was error of finding on a jurisdictional fact. 16. From perusing the Judgment and award dated 04.07.2003 (Annexure-5) passed by the learned Labour Court, Jodhpur it does not reveal that there is patent illegality and irregularity or error of law apparent on the face of record and the findings recorded by the learned Labour Court are perverse. Therefore, the same does not require any interference by this Court under Article 226/227 of the Constitution of India. 17. Therefore, the same does not require any interference by this Court under Article 226/227 of the Constitution of India. 17. For the reasons mentioned above, the present writ petition is dismissed. No order as to costs.