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Rajasthan High Court · body

2006 DIGILAW 82 (RAJ)

Ram Swaroop v. Director, Agriculture Deptt.

2006-01-06

GYAN SUDHA MISRA, J.R.GOYAL

body2006
Judgment 1. All these appeals have been preferred by the appellant-workmen against the common Judgment and order dated 31.01.1992 passed by the learned Single Judge who had been pleased to allow the entire batch of writ petitions in favour of the respondent-State through the Department of Agriculture and the award passed in favour of the workmen by the Labour Court on 011.1989, was quashed and set aside by which the workmen had been ordered to be reinstated in service of the Department and were ordered to be paid all consequential benefits including back wages alongwith 12% interest. 2. The circumstances in which these appeals have arisen, have a chequered history and the appellant-workmen had fought several rounds of litigation in regard to their retrenchment. Summarily stated, it transpires that all the workmen were on daily wages discharging their duties in the Department and at one point of time an order of transfer was passed against the workmen directing them to join at Nogaon (Alwar) from Durgapura at Jaipur. The appellant-workmen had challenged the order of transfer through their union and an order of stay by the learned Single Judge was passed in their favour. But before the order of stay could be communicated to the Department, an order of retrenchment of these workmen was passed on 13.07.1984. The learned Single Judge in the meantime had also dismissed the writ petition filed through the workmens union against which the union preferred an appeal before the Division Bench bearing Civil Special Appeal No. 22/1985 and this appeal was also dismissed but the Department before dismissal of the special appeal had filed an undertaking before the Division Bench that the respondent workmen who had been retrenched will be absorbed in the Department as and when the vacancies arise. It transpires that in spite of this undertaking the workmen who are appellants before this Court were not reinstated in service and they were also not in a position to file any contempt petition before the Division Bench as the order of retrenchment was coming in their way and the observation of the learned Judges of the Division Bench were only in the nature of observation merely expecting the management to absorb the retrenched workmen in the service of the Department of Agriculture in further if the vacancies were available. 3. 3. The respondent-workmen, left with no alternative, were compelled to initiate a reference in regard to the order of retrenchment and they succeeded in this as the reference in fact was initiated which was referred to the Labour Court, Jaipur for adjudication wherein the question for consideration was whether the Department of Agriculture was justified in passing the order of retrenchment of the workmen without complying the legal requirement envisaged under Section 25-F of the Industrial Disputes Act, 1947, inasmuch as the retrenchment compensation was not fully paid to the workmen. 4. The learned Judge of the Labour Court after meticulous scrutiny of the evidence led by the contesting parties, was pleased to record a finding that the order of retrenchment passed by the Department of Agriculture was clearly illegal as the same had been passed in violation of Section 25-F of the Industrial Disputes Act since the amount of compensation was not paid to the workmen in its entirety and the same suffered the lacuna of deficit amount as the amount towards each years service was not rightly calculated and hence it was held that Section 25-F of the Industrial Disputes Act was not fully complied with. Consequently the order of retrenchment was set aside and it was ordered that all the six workmen would be reinstated in service and they would be entitled to back wages alongwith 12% interest on the same and the benefit of continuity of service was also awarded to them. 5. Feeling aggrieved with the award passed by the Labour Court, a batch of six writ petitions had been filed by the management before the Single Bench and the first and foremost ground of challenge by the management in the writ petitions was that the order of retrenchment was passed after full compliance of Section 25-F of the Industrial Disputes Act which was fit to be upheld. It appears that a caveat had also been entered by the respondent workmen in the writ petitions through their Advocate but since his name was not shown on the daily cause list, he was not present in the Court. However, the learned Single Judge refused to defer the matter and the Counsel for the petitioner management was finally heard after which all the six writ petitions were allowed by a common Judgment and order setting aside the award of the Labour Court, as already stated herein-before. However, the learned Single Judge refused to defer the matter and the Counsel for the petitioner management was finally heard after which all the six writ petitions were allowed by a common Judgment and order setting aside the award of the Labour Court, as already stated herein-before. The learned Single Judge without entering into a scrutiny of the evidence relied upon by the learned Judge of the Labour Court while recording a finding that the management was guilty of non-compliance of Section 25-F of the Industrial Disputes Act, adopted a different approach and was pleased to hold that the removal of the respondent workmen from the service of the Department, in fact was not a case of retrenchment but it was a case of transfer and hence was pleased to hold that the Labour Court had not proceeded in consonance with the ratio of the decision in regard to interpretation of Section 25-F of the Industrial Disputes Act which the learned Judges of the Supreme Court had attributed to it. The learned Single Judge, however, did not elaborate at all in the impugned order as to how and in what manner it was not a case of retrenchment and that it was a case of transfer contrary to the term of reference and further did not deal as to how Section 25-F of the Industrial Disputes Act could be held to have been complied by the management. The writ petitions however, were allowed practically summarily and the award of the Labour Court was quashed and set aside. Fortunately for the workmen, it appears that no order of stay had been granted in favour of the management by the learned Single Judge while the writ petitions were pending before the learned Single Judge, as a result of which the appellant workmen were reinstated in service of the Department in pursuance of the award passed by the Labour Court. The Labour Court however, had mentioned that respondent management agreed to reinstate them in compliance of the order of the Division Bench, which had merely observed that the workmen would be absorbed in the service of the Department as and when the vacancies arose. The Labour Court however, had mentioned that respondent management agreed to reinstate them in compliance of the order of the Division Bench, which had merely observed that the workmen would be absorbed in the service of the Department as and when the vacancies arose. The Department however, did not elaborate as to how it could construe that the workmen were reinstated in pursuance of the order of the Division Bench when in spite of lapse of several years they were not reinstated and could be reinstated only when the order of the Labour Court was passed after they succeeded in their contest against the management. We however, do not find it relevant to enter into this controversy further, as ultimately it has no bearing on the merit of the appeals. The fact however, remains that all the six workmen, who are appellants herein by filing separate appeals, were reinstated in service of the Department on 12.1989 and are still continuing in service and, therefore, the award of the Labour Court although has been quashed, they are continuing in service. It is however, still not clear as to how the appellant-workmen continued when the learned Single Judge was pleased to finally quash the award passed by the Labour Court when no order of stay was passed by the Division Bench in these appeals in favour of the workmen. However, the anxiety of the appellant-workmen is understandable for if the award of the Labour Court was quashed by the learned Single Judge, the proverbial sword of Democlise definitely keeps hanging on the head of these workmen as they are bound to suffer the threat of their removal from service by virtue of the fact that the learned Single Judge had been pleased to quash and set aside the award of the Labour Court granting them the relief of reinstatement alongwith back wages. But all told and said, the workmen ultimately are in service and have not been removed in spite of the order of the learned Single Judge and in the meantime they also preferred these appeals before this Court. 6. The question, therefore, which now remains to be considered is as to what extent this Court would be justified in entertaining all these appeals once it is brought to its notice that they are already in service and the respondent-management has practically acquiesced with the situation. 6. The question, therefore, which now remains to be considered is as to what extent this Court would be justified in entertaining all these appeals once it is brought to its notice that they are already in service and the respondent-management has practically acquiesced with the situation. This Court does not think it proper to interfere with their reinstatement when the respondent management in spite of the order in their favour passed by the learned Single Judge, has not thought it proper to remove them and, therefore, this Courts concern is only to the extent as to whether it would be appropriate to sustain the order passed by the learned Single Judge for quashing the award of the Labour Court which obviously has the effect of setting aside the award of reinstatement granted by the Labour Court. However, the saving grace in favour of the workmen can be gathered from the order of the Division Bench passed in the special appeal earlier wherein it was observed in the year 1985 that in view of the undertaking of the management they will be absorbed as and when the vacancies arose. Strictly speaking, once the undertaking was given by the management that the workmen were to be absorbed in service, it was not open for them to insist on the order of retrenchment and, therefore, the initiation of reference against the order of retrenchment also was not really essential but neither party having taken this point as to whether the reference was essential or not, the reference was ultimately decided by the Labour Court in favour of the workmen. It is however, pointed out by the Counsel for the appellants that the respondent management in fact did raise the point regarding non maintainability of the reference, but much water had flown in between this period and further this point having not been gone into by the learned Single Judge, we do not deem it appropriate to enter into this controversy at the stage of appeal. 7. 7. Since, the appellant workmen are continuing in service and the respondent management is also not insisting on their removal and the learned Single Judge also having not given out reasons as to why it was not treated as a case of retrenchment although an order of retrenchment in fact was passed in black and white and the workmen also suffered the consequences of the same as they were not allowed to join their services, then brushing aside their case by stating that it was not a case of retrenchment but was a case of transfer, does not really convey or throw any light on the controversy which is involved in the dispute between the workmen and the management. 8. We have perused the award of the Labour Court as also the impugned Judgment and order of the learned Single Judge and the award of the Labour Court having recorded a finding that Section 25-F of the Industrial Disputes Act was not fully complied with by the respondent-management and the impugned order of the learned Single Judge being silent on the point as to how Section 25-F of the Industrial Disputes Act could be held to have been complied, we feel that the order of the learned Single Judge cannot be sustained and consequently the quashing of the award of the Labour Court in its entirety cannot be upheld. Thus, insofar as the relief of reinstatement which had been granted by the Labour Court is concerned, the same is not fit to be interfered with and the Judgment and order of the learned Single Judge to that extent is fit to be quashed and set aside. 9. The question however, still remains as to whether the Labour Court was justified in granting back wages to the appellant workmen alongwith interest at the rate of 12% per annum. In this context we have found that although the workman in a deserving case may be entitled to back wages, the appellants herein have not led any evidence in their favour that they were not gainfully employed during the period in which they were out of service and, therefore, the relief granting back wages alongwith interest at the rate of 12% is not justified in our view. Setting aside the award of the Labour Court by the learned Single Judge, therefore, appears to be justified insofar as the grant of back wages is concerned. However, since the appellant-workmen have been continuously in the service of the respondent-management right from the beginning except for the period during which they suffered the order of retrenchment, we feel that the relief granting consequential benefits insofar as the continuity of their service in the Department is concerned, the same should be allowed to remain in tact and, therefore, we clarify that we are not interfering with the award of the Labour Court on this count. In substance, therefore, the award of the Labour Court stands modified to the aforesaid extent and the Judgment and order of the learned Single Judge accordingly stands quashed and set aside only to the extent by which the reinstatement of the appellant workmen stood affected. They however, shall not be entitled to back wages as already stated earlier. All appeals thus stand partly allowed with no order as to costs.