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Rajasthan High Court · body

2006 DIGILAW 2925 (RAJ)

General Secretary v. The Assistant Director, World Food Programme Project, Forest Department

2006-10-19

MOHAMMAD RAFIQ

body2006
Judgment Mohammad Rafiq, J.-These two writ petitions are directed against the award dated 25.04.2001 passed by learned Industrial Tribunal cum Labour Court, Udaipur (in short the Labour Court). 2. Reference on an industrial dispute was made to learned Labour Court by the appropriate Government by notification dated 20.10.1993 on the question whether the removal of workman Laxman Singh by Assistant Director, World Food Programme Project by order dated 12.05.1991 was legal and justified and if not what relief the workman was entitled to. 3. The case set up by the workman before the Labour Court was that he was appointed by the management on the post of Chowkidar vide order dated 01.09.1988 and was posted on distribution centre at Govardhan Vilas, Udaipur @ of Rs. 14/-per day. He worked with the management from 01.09.1988 to 12.05.1991 and completed 240 days in the service in the calendar year immediately preceding the date of his retrenchment. The management did not serve upon him notice as required under Section 25-F of the Industrial Disputes Act, 1947 (in short ‘the Act’) nor did they pay to him notice pay or compensation on his retirement in compliance of the said provision. The management even adopted unfair labour practice and engaged him sometime by the name of some other person. It was, therefore, prayed that his retrenchment be declared illegal and he be held entitled to reinstatement and continues in service. 4. The aforesaid claim was contested by the management who in their reply to statement of claim filed before learned Labour Court contended that no appointment was given to the workman on any post, he however worked only for a few days and in broken spells. He worked only for a few days and in broken spells. He worked for 154 days during 1988-1989 whereas 78 days in the year 1989-1990 and 178 days during 1990-1991. He thereafter stopped coming to work from 12.05.1991 on his own. The workman abandoned his service and, therefore, provisions of Section 25-F of the Act would not apply. It was contended that the reason for the workman in abandoning the service was that he was engaged elsewhere on better emoluments. 5. He thereafter stopped coming to work from 12.05.1991 on his own. The workman abandoned his service and, therefore, provisions of Section 25-F of the Act would not apply. It was contended that the reason for the workman in abandoning the service was that he was engaged elsewhere on better emoluments. 5. Learned Labour Court after recording the evidence of the parties and hearing arguments held by the impugned award that retrenchment of the finding of fact that out of the total period of 25 months during which the workman has claimed to have worked with the management, he in fact was found to have worked for only 18 months. His retrenchment was made way back on 12.05.1991 and when the award was passed on 25.04.2001 a period of ten years had gone. He was engaged only on daily wages basis at the rate of Rs. 22/-per day. From the own evidence of the workman he was working for a sum of Rs. 50/-and when the award was passed the was found to be earning Rs. 60/-. The learned Labour Court, therefore, directed payment of lump sum compensation of Rs. 32,000/-in lieu of reinstatement. In doing so learned Labour Court relied upon following Judgment s of the Hon’ble Supreme Court and this Court in Rolastan Rohan vs. Central Industrial Tribunal, 1995 SCC (L & S) 142; Gujarat State Road Transport Corporation vs. Mulluamra, 1995 SCC (L & S); Surjeet Ghosh vs. UCO Bank, 1995 SCC (L & S) 526; Gorabha Cooperating Marketing vs. Presiding Officer, LLR 1996 (1) 644; Ratan Singh vs. Union of India, 1998 SCC (L & S) 170 and Dharmveer Singh vs. State of Rajasthan, 1999 WLC (Raj) 310. 6. I have heard Sh. R.R. Mehta, learned Counsel for the workman and Sh. Rameshwar Dave, learned Dy. Government Advocate for the management who in their arguments have supported their respective cases as pleaded before learned Labour Court. 7. Sh. P.R. Mehta argued that when retrenchment was held to be illegal, the remedy of reinstatement ought to have been followed as a matter of course. There was no reason for not directing the reinstatement of the workman. He argued that in the present case the management was guilty of adopting unfair labour practices by giving deliberate breaks to the workman in their services and by making the payment to the workman in the name of another workman. There was no reason for not directing the reinstatement of the workman. He argued that in the present case the management was guilty of adopting unfair labour practices by giving deliberate breaks to the workman in their services and by making the payment to the workman in the name of another workman. Not only the provisions of Section 25-F of the Act were violated but Section 25-G was also violated in as much as persons junior to the workman were retained in as much as persons junior to the workman were retained in service and were continuing. The direction of awarding the compensation could have been given in a case where the workman was nearing the age of superannuation and where the workman was not willing to join duties being engaged else where. None of these conditions were fulfilled in the present case, therefore, the relief of reinstatement and continuity of service to the workman ought to have been granted. Mr. Mehta has relied upon the Judgment in Vikramaditya Pandey vs. Industrial Tribunal & Anr., 2001 AIR SCW 310. In this case the Hon’ble Supreme Court while reversing the Judgment of the High Court, which directed payment of lump sum compensation in lieu of reinstatement, moulded the relief by withholding 50% of back wages but directed reinstatement. 8. On the other hand Mr. Rameshwar Dave, learned Dy. Government Advocate also challenged award in so far as payment of lump sum compensation in lieu of reinstatement has been ordered to be made and argued that the learned Labour Court ought not to have awarded the relief in the present case because the Management is not an industry in the meaning of Section 23 of the Act of 1947 and that the workman was engaged in a World Food Programme Project and that the workman abandoned the job on his own. He argued that even otherwise the workman did not complete 240 days in the calendar year immediately preceding to the date of retrenchment. 9. I have given my thoughtful consideration to the arguments advanced on behalf of the parties and perused the material placed before me. 10. Learned Labour Court has recorded a finding that although total work of the workman was 16 months but that was spread over 25 months from beginning to end. 9. I have given my thoughtful consideration to the arguments advanced on behalf of the parties and perused the material placed before me. 10. Learned Labour Court has recorded a finding that although total work of the workman was 16 months but that was spread over 25 months from beginning to end. Retrenchment was made on 12.05.1991 and when the award was passed on 25.04.2001, a decade had already gone by Nature of the appointment of the workman was casual and on daily wages. In view of these facts it cannot be said that the direction given by learned Labour Court for granting lump sum compensation in lieu of reinstatement was based on irrelevant considerations. Learned Labour Court has granted lump sum compensation taking into account the rates presently prevalent and payable to the daily wages employees and on that basis qualified Rs. 32,000/-as lump sum compensation in lieu of reinstatement. In my view the award passed by the learned Labour Court does not suffer from any error apparent on the face of the record. No interference is, therefore, called for by this Court in the award passed by the learned Labour Court. 11. So far as Judgment of the Hon’ble Supreme Court in Vikramaditya Pandey’s case (Supra), relied upon by Mr. P.R. Mehta is concerned, the said Judgment turned out on its own facts, where the High Court had recorded finding that in case there is inconsistency between the service regulations and the provisions of the Industrial Disputes Act, 1947, the Regulations shall be operative and in doing so the High Court had misread the Clause 103 which provided that the inconsistent provisions contained in the Regulations shall be inoperative and not the provisions of the other statutes mentioned in the Regulation 103. In other words the inconsistent provisions contained in the Regulations would be inoperative but the High Court misread the regulations and held that in case of inconsistency between the two, regulations would be operative and the provisions of the Industrial Disputes Act, 1947 and other labour laws would be inoperative. It is on these facts of that case, the aforesaid Judgment passed by Hon’ble Supreme Court. Learned Tribunal however in the present case has relied upon a number of Judgment s of this Court as also of the Hon’ble Supreme Court according to which payment of lump sum compensation in lieu of reinstatement can be made. It is on these facts of that case, the aforesaid Judgment passed by Hon’ble Supreme Court. Learned Tribunal however in the present case has relied upon a number of Judgment s of this Court as also of the Hon’ble Supreme Court according to which payment of lump sum compensation in lieu of reinstatement can be made. In view of the above discussions, I do not find any merit in both these writ petitions. 12. Both the writ petitions, are, therefore, dismissed with no order as to costs.