Research › Search › Judgment

Rajasthan High Court · body

2005 DIGILAW 427 (RAJ)

State of Rajasthan v. Ramesh

2005-02-10

DINESH MAHESHWARI, RAJESH BALIA

body2005
Judgment Rajesh Balia, J.-Heard learned Counsel for the parties on merit of the appeal. 2. The appeal is directed against the Judgment of the learned Single Judge dated Sept., 3, 2003 by which the award dated 04.01.2002 passed by the Labour Court and published on 2nd August, 2002 was modified by directing the appellants to reinstate the respondent workman within 3 months from the date of receipt of the certified copy of the order, however, no back-wages were awarded. 3. The reference was made to the Labour Court vide notification dated 14.03.1996 about the validity of retrenchment of the workman Ramesh S/o. Shri Waktaji. The workman has challenged his retrenchment on the ground that as per the order of the Government dated 111.1988 only those were to be retrenched who were appointed after 01.04.1985. His appointment was prior to 01.04.1985. According to the workman, he was appointed on 01.09.1982 but the respondents have not taken into consideration his services from 01.09.1982 to 09.05.1984. Apart from the aforesaid ground, it was also stated in the claim that the baildar junior to him in the establishment is still continuing in service, while his services have been terminated. 4. The averments made in the claim petition that the retrenchment has taken place in pursuance of the direction dated 111.1988 which was only in respect of those workmen who have been appointed after 01.05.1985 had not been denied. In reply to the claim, it was asserted that the workman was not regular but on muster roll. Since his appointment, he was not working on muster roll regularly, his appointment has been treated w.e.f. 10.05.1984. The claimant has now claimed seniority from the date of appointment on the basis of seniority list published by the department. It was also stated in the reply that the compliance of Section 25-F(A) has been made inasmuch as the workman was paid retrenchment compensation at the time of retrenchment which has been accepted by him. Secondly, the averments made by the workman that the person junior to him was also continuing to function in the establishment, has not been denied in reply to claim petition. 5. The learned Presiding Officer, Labour Court, Udaipur found in favour of the workman on both counts namely that the Government directions were only to retrench those workmen who have been appointed after 01.04.1985. 5. The learned Presiding Officer, Labour Court, Udaipur found in favour of the workman on both counts namely that the Government directions were only to retrench those workmen who have been appointed after 01.04.1985. Whereas even according to the employer the workman was in service w.e.f. 10.05.1984, even assuming that he was not in the employment from 1982 on regular basis. From the material on record, it is also established that persons junior to the petitioner were still continuing in service, and, therefore, there is clear violation of Section 25-G. In view of this finding, retrenchment was held to be invalid. However, instead of directing reinstatement or any other substitute relief , the award was made directing the present appellant that he should be employed only if the junior person than the petitioner is working on the establishment as daily rated workman at the current wages rate, no back-wages were awarded. The finding of the Labour Court were not challenged by the present appellants. However, the workman aggrieved with the type of direction given to him, preferred the writ petition. 6. The learned Single Judge found that when the learned Labour Court itself come to definite finding that the persons junior to the workman were continuing in service, the conditional direction to reinstate him, if person junior to him is working was in the establishment cannot be sustained. However, the Court did not interfere with the finding that the workman was not entitled to back-wages. 7. In this appeal, the contention of the appellants is that the modification ought not to have been made by the learned Single Judge as there was no categorical finding by the Labour Court about any person junior to the person working in the establishment. 8. We are not impressed with the contention as we have noticed above and as has been noticed by the learned Single Judge, there is a clear finding recorded by the Labour Court that from the documents produced before him, it is fairly established that the person junior to the petitioner had been retained in service at the time of retrenchment. We have also noticed that notwithstanding the plea taken in the claim that the baildars junior to the petitioner are still continuing in service, that allegation has not even been traversed much less denied by the present appellant in their reply to the claim. We have also noticed that notwithstanding the plea taken in the claim that the baildars junior to the petitioner are still continuing in service, that allegation has not even been traversed much less denied by the present appellant in their reply to the claim. The fact that today a person junior to the petitioner may not be working is irrelevant because legality or illegally of retrenchment is to be seen at the time when retrenchment was affected and not at the time when the relief is granted. The award of compensation has not been found to be a just substitute of the remedy of the reinstatement by the Labour Court. In these circumstances, we do not find any error in the Judgment of the learned Single Judge by which the mistake committed by the Labour Court has been set right by the learned Single Judge by modifying the same in consonance with the finding recorded by the learned Labour Court itself . 9. The appeal fails and is hereby dismissed.