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2005 DIGILAW 2182 (RAJ)

State of Rajasthan v. Labour Court, Udaipur

2005-08-18

RAJESH BALIA

body2005
Judgment Rajesh Balia, J.-This petition is directed against the award of Industrial Tribunal cum Labour Court, Udaipur dated 04.08.1992. 2. The State Government referred the following dispute to the Labour Court vide its order dated 20.06.1987. D;k lgk;d vfHk;ark flpkbZ mi [k.M Mwaxjiqj }kjk loZ Jh ef .k yky iq= dSyk’kh ,oa vU; 26 Jfed ¼ ftudh lwph layXu gS½ ftuds fookn dk izfrfuf /kRo tujy lSØsVh flpkbZ foHkkx deZpkjh la?k jktLFkku mn;iqj }kjk fd;k x;k gS dks lsok eqDr djuk mfpr ,oa oS/k gS\ 3. The Labour Court found the termination of 27 workmen in respect of whom the reference was made to be invalid and illegal and directed the employer - petitioner before this Court to implement the order Annexures-6 and 7 dated 31.05.1983 and 01.06.1983 respectively with 50% of back wages and continuity of service. The Tribunal also directed that within three months of publication of award, the workmen should be awarded, on the basis of order Annexures-6 and 7, semi-permanent status and the payment of arrears shall be made failing which the employer shall be liable to pay 15% interest on such arrears. The cost of the litigation was also awarded. 4. The workmen are employees under the Irrigation Department on its work-charged establishment. According to workmen they were employed since 1976 continuously. It was claimed that in the year 1979 there had been some demand on behalf of the workers to declare all those workmen who have completed two years service in work-charged establishment as semi permanent in terms of Sub-rule (iii) of Rule 2 of the Work-charged Rules, 1964 which are applicable to the work charged establishment of the Irrigation Department. First settlement was arrived at on 01.01.1979 and another settlement was arrived on 20.06.1980 but the same were not given effect to. Therefore, dispute about the permanent status of the workers under the Irrigation Department and work-charged establishment was again raised which culminated in settlement dated 14.03.1983 in pursuance of which 27 workmen vide order dated 01.06.1983 and 31.05.1983 were declared semi-permanent without any arrears of pay and period prior to the date of joining duty was considered as leave without pay and no wage increment was given for the period. The status of semi permanent was declared w.e.f. dateof order i.e., 01.06.1983. The status of semi permanent was declared w.e.f. dateof order i.e., 01.06.1983. However, it appears from Annexure 13, placed on record, which is letter dated 18.06.1983 received by the petitioners from the rival Union that persons declared as semi-permanent vide the aforesaid two orders have wrongly been so declared as they are not in service for quite some time and they have been dealt with under the threat of the Union with whom settlement has been arrived at. This led to issue of order dated 10.06.1983 in the first instance staying the order dated 01.06.1983 until further orders. By order dated 11.07.1983, the said two orders were cancelled. The order stated that since the workmen were not in continuous service when the order was passed, they are being cancelled. Ostensibly, by the impugned order dated 10.06.1983 and 11.07.1983 no order was issued to terminate the services of the workmen but it appears that from the proceedings before the Joint Labour Commissioner as per failure report submitted by him that while the Management was not prepared to accept the dispute about withdrawal of order dated 11.07.1983, it was prepared to pay the retrenchment compensation to the workmen so the Joint Labour Commissioner has noticed in the failure report that the stand taken by the Management was that the workmen ought to have been declared semi permanent in pursuance of orders dated 31.05.1983 and 01.06.1983 for continuous service as on 31.03.1982 and, therefore, the declaration was irregular. In view thereof , it was contended before the Labour Commissioner that as a result of cancellation of the order of claiming semi permanent status, it is not possible to take them back in service and they are prepared to grant relief as per rules. On the failure report, the aforesaid dispute about illegal termination has been referred to by the Tribunal. However, dispute about the erroneous nature of the order dated 11.07.1983 cancelling the order dated 31.05.1983 and 01.06.1983 have not been made directly subject matter of reference as such. 5. Before the Labour Court, the existence of dispute and arrival of three settlements and the passing of orders dated 31.05.1983 and 01.06.1983 and subsequent withdrawal of said orders without notice has not been subject matter of dispute. 5. Before the Labour Court, the existence of dispute and arrival of three settlements and the passing of orders dated 31.05.1983 and 01.06.1983 and subsequent withdrawal of said orders without notice has not been subject matter of dispute. It appears that only dispute that was raised before the Tribunal was that since 27 workmen in respect of whom the reference was made were not in continuous service as on 31.03.1983, therefore, they could not have been declared semi permanent. The case of retrenchment having been admitted as such and the concession being made before the Labour Court that the Management is prepared to pay retrenchment compensation as is payable, it is quite another thing to say that the Management was not right in retrenchment which was considered by the parties to be direct result of the order dated 11.06.1983 and, therefore, the matter has proceeded on that basis. 6. Learned Counsel for the petitioner has contended that the validity of withdrawal of order declaring semi permanent has not been responded to by the workman represented through the Union and the same having not at all been referred to by the Tribunal, the Tribunal exceeded its jurisdiction in issuing directions to set aside the order dated 11.07.1983 and extending the relief of declaring the workmen as semi permanent w.e.f. 31.05.1983 and consequential reliefs. It was also contended by the learned Counsel that 27 workmen in question were not regular in service, and, therefore, the termination was not invalid. 7. At the time of admission, the operation of the award dated 04.08.1992 was stayed to the extent back wages were awarded vide order dated 25.05.1993. The order dated 25.05.1993 reads as under:-“ In the meantime, operation of the award (Annexure-28) is stayed only to the extent of back wages. This stay shall, however, operate only if the employees are taken back in service by the employer within a period of one month from today. In case the employees are not taken back in service, the stay order passed today shall stand vacated and stay application shall also stand dismissed without reference to the Court.” 8. The said interim order was modified by order dated 03.04.2002 at the time of final hearing of stay application. In case the employees are not taken back in service, the stay order passed today shall stand vacated and stay application shall also stand dismissed without reference to the Court.” 8. The said interim order was modified by order dated 03.04.2002 at the time of final hearing of stay application. While confirming the ex parte interim order, the Court further emphasized that in case the employees have not been taken back within one month, from 25.05.1993 the stay order shall be deemed to have been vacated and the steps may be taken for the implementation of the award. 9. Learned Counsel for the parties informed that in pursuance of the aforesaid interim order, all these workmen have been reinstated and it has also stated that even in case of two workmen, who had died meanwhile, their dependents have been given employment. 10. Learned Counsel for the respondent has further, at the very outset, stated that the workmen are prepared to forego the back wages. 11. Coming to the contention that in giving the directions, the Tribunal exceeded its jurisdiction, it is apparent that the question about conferment or withdrawal of permanent status on the workman with retrospective effect was not the subject matter of reference and, therefore, the Tribunal obviously had exceeded in its jurisdiction in making directions relating to declaration of the workmen as semi-permanent and paid the emoluments in terms thereof w.e.f. 31.03.1983 and as per orders dated 31.05.1983 and 01.06.1983 as the said dispute was not referred to it and no effort having been made by the respondent workmen to either seek amendment of the order of reference or seek a reference on additional question. The Tribunal could not have gone into the question which was not referred to it about the claim of the workmen to the semi-permanent status w.e.f. any particular date which was not subject matter of dispute since then before and was agreed to by both the parties to be resolved by the dint of the aforesaid settlement. The copy of the settlement dated 01.04.1983 is not on record. Moreover, the question whether the order dated 31.05.1983 and 01.06.1983 were the cases of settlement or not being referred to the Tribunal, the Tribunal should have confined itself to the question of validity of retrenchment and pass appropriate orders in terms of its finding thereon. 12. The copy of the settlement dated 01.04.1983 is not on record. Moreover, the question whether the order dated 31.05.1983 and 01.06.1983 were the cases of settlement or not being referred to the Tribunal, the Tribunal should have confined itself to the question of validity of retrenchment and pass appropriate orders in terms of its finding thereon. 12. As a result of aforesaid discussion, so far as the holding of retrenchment of the workmen to be invalid, cannot be interfered with as it is apparently a finding of fact and does not stand vitiated on any account and is not liable to be interfered with in exercise of extra ordinary jurisdiction. The reinstatement of the workmen as a result of retrenchment being invalid cannot also be vitiated since the claim to back wages have already been foregone and specific directions relating to grant of status as semi-permanent w.e.f. 31.03.1982 and putting in the pay scale are concerned, cannot be sustained. 13. Accordingly, this writ petition is partly allowed. The award of the Labour Court is modified by directing that the additional directions as to the payment of wages and declaration of semi-permanent status of the respondent-workmen was not tenable. Rest of the award is maintained. Since, the workmen have already been reinstated and are continuing in service, except one who according to the learned Counsel for the State Government was not on regular appointment, this will not preclude the workmen from making a representation about their semi-permanent status in the service from whatever date they claim it to be available to them and it will be for the State Government to decide that representation in accordance with law by a reasoned order within six weeks of making of representation, if any. The workmen will be free to pursue their remedies, if they are aggrieved, with the result of their representations. 14. No order as to costs.