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2005 DIGILAW 572 (RAJ)

State of Rahasthan v. Radha Kishan

2005-02-21

R.P.VYAS

body2005
Judgment R.P. Vyas, J.-The instant petition is directed against the Judgment and award dated 012.2001 (Annex.3) passed by the learned Labour Court, Bikaner in Labour Case No. 82/2000. 2. The brief facts of the case are that an industrial dispute was raised by the non-petitioner Radha Kishan before the Conciliation Officer regarding his retrenchment. The conciliation proceedings failed and a failure report was submitted by the Conciliation Officer before the appropriate Government. The appropriate Government vide notification Dated 06.03.2000 referred the matter to the Labour Court, Bikaner for adjudication under the provisions of Section 10 of the Industrial Disputes Act, 1947, (hereinafter referred to as the Act of 1947). 3. The learned Labour Court, Bikaner issued notices to the parties and the respondent No. 1-calimant filed claim petition, stating inter alia, that initially he was engaged on daily wage basis in the petitioner-Department w.e.f. 30.11.1991 and continued there till 01.06.1993, when his services were terminated without following the procedure prescribed under Section 25-F of the Act of 1947 of Rules 77 and 78 of the Industrial Disputes Rules (hereinafter referred to as the Rules) and prayed that he be reinstated in service, with all consequential benefits. 4. That the petitioners filed reply to the claim petition in which it was stated that initially, the State Government on 23.07.1995, refused to refer the matter to the Industrial Tribunal. It was further averred in the reply that the respondent-workman was engaged for only three months in Sahawa Sub-Division and after completion of a period of 3 months, his services automatically came to an end and thus, the termination of services of respondent No.1 will not fall within the purview of retrenchment. It was further contended in the reply that story of working till 01.06.1993 was ex facie wrong and the respondent - workman is not entitled to get any relief . 5. That during the course of proceedings, the petitioner -Department as well as the respondent-workman led their oral as well as documentary evidence before the learned Labour Court and the learned Labour Court, after considering the evidence and arguments raised by the parties, allowed the claim petition filed by the respondent- workman and directed his reinstatement vide Judgment and award dated 012.2001 (Annex.3) with a cost of Rs. 2500/-. The award (Annex. 3) has been published in the official gazette (Annex. 4) on 25.06.2002. 2500/-. The award (Annex. 3) has been published in the official gazette (Annex. 4) on 25.06.2002. Hence, the present writ petition with the above mentioned prayer. 6. Heard the learned Counsel for the parties and considered the arguments, at length. 7. The main contention raised by the learned Counsel for the petitioners is that the award dated 012.2001 (Annex. 3) passed by the learned Labour Court suffers from material irregularity and illegality and there is error apparent on the face of record and hence, the award passed by the Learned Labour Court is absolutely illegal and contrary to the facts available on record as well as contrary to law. He further contended that the impugned award is based on conjectures and surmises as it was specifically pleaded on behalf of the petitioner-Department that the respondent-workman was engaged purely on temporary basis for a period of 3 months and after completion of three months, his services automatically came to an end and the respondent-workman abandoned the services on completion of particular period of service and the same does not amount to retrenchment as defined under the Act of 1947 and hence, the respondent-workman had no right to continue as daily wage employee. However, the learned Labour Court has altogether ignored this aspect of the matter. It has further been averred on behalf of the petitioners that the learned Labour Court has not considered the evidence led by the petitioner-Department in right perspective and more weightage has been given to the evidence led by the non-petitioner, in as much, as the learned Labour Court has over-looked the evidence led by the petitioner-Department regarding the engagement of the respondent-workman for a period of three months only and thus, termination of services of the petitioner does not fall within the definition of retrenchment. It has been further stated by the learned Counsel for the petitioner that if the respondent-workman came out with a specific case then he was engaged in the petitioner-Department on 30.11.1991 and he worked till 01.06.1993, then burden lies on the workman to prove the factum of his working with the petitioner-Department for the aforesaid period. However, the respondent-workman has failed to prove this aspect of the matter despite the fact that the learned Tribunal has allowed the claim petition filed by the respondent- workman. However, the respondent-workman has failed to prove this aspect of the matter despite the fact that the learned Tribunal has allowed the claim petition filed by the respondent- workman. It was further contended on behalf of the petitioners that there is no violation of provisions of Section 25-G and H of the Act of 1947 and relevant provisions of Rule 77 of the Rules. The leaned Counsel for the petitioners has also raised certain arguments regarding engagement and abandonment of service of non-petitioner-claimant, which has not been properly looked into by the learned Labour Court. Thus, the impugned Judgment and award passed by the learned Labour Court deserves to be quashed and set aside. 8. On the other hand, the learned Counsel for the respondent-workman argued that the respondent-workman proved his case beyond all reasonable doubt not only on the basis of his own documents, but on the basis of documents submitted by the petitioner-Department and there is not an iota of evidence in support of the contentions raised by the petitioner-Department. It has also been averred by the respondent-Department that the petitioner-Department has failed to prove the fact as to on which date the respondent-claimant was engaged in the Department, whereas the respondent-claimant has proved beyond reasonable doubt that he was engaged from particular date and his services were retrenched after completing the period of 240 days. It has also been contended on behalf of the respondent-workman that despite direction by the learned Labour Court, the petitioners did not produce any documents before the Labour Court in support of their case. Thus, the learned Labour Court has rightly observed that as per the provisions of the Evidence Act, burden lies on the Department to prove the fact of engagement of the respondent-workman, but the same has not been proved by the petitioner-Department and hence, the learned Labour Court has rightly drawn a presumption that the respondent-workman has competed 240 days of services. It has further been contended by the learned Counsel for the respondent-workman that the persons junior to him have been retained in service, whereas services of the respondent-workman have been terminated without following the procedure prescribed under Section 25-G and Rules 77 and 78 of the Rules and thus, the petitioner is also entitled to be retained in service and this fact has been taken into consideration by the learned Labour Court. In this view of the matter, the impugned award passed by the learned Labour Court is justiciable and does not warrant any interference by this Court. 9. In my considered opinion, the findings arrived at by the learned Labour Court regarding engagement of the respondent-workman as well as illegal termination of his services are based on sound reasons. The respondent-workman has proved his case beyond all reasonable doubts. The respondent-workman has proved the fact that he has completed 240 days of services from the date of his initial appointment, whereas the petitioner- department failed to prove the fact that the engagement of respondent-workman was for a period of 3 months. The learned Labour Court after proper appreciation of evidence on record has categorically observed that there is violation of provisions of Section 25-G of the Act of 1947 as well as Rules 77 and 78 of the Rules. 10. 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 or evidence. It also cannot be said that the Labour Court committed any illegality in holding the termination of the services of the respondent-workman as illegal. The findings of facts recorded by the Labour Court do not suffer from any basic illegality or infirmity. 11. Apart from that, under Article 227 of the Constitution of India, the High Court cannot interfere with the exercise of a discretionary power vested in the inferior Court or Tribunal, unless its findings or order is 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 and for this reason also, no interference is called for in the impugned Judgment and award passed by the learned Labour Court. For the reasons mentioned above, the instant petition is dismissed. No order as to costs.