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2012 DIGILAW 1074 (RAJ)

Rajasthan Agriculture University v. Laxman Dan

2012-04-27

C.M.TOTLA, DINESH MAHESHWARI

body2012
JUDGMENT 1. - These two intra-court appeals, arising out of the two writ petitions (CWP Nos. 4504/2005 and 5431/2005), which were filed respectively by the workman (respondent No. 1 herein) and by the employer (the appellant herein) in relation to the same award dated 27.02.2004 as made by the Labour Court, Bikaner in Reference Case No.35/1998, have been considered together; and are taken up for disposal by this common judgment. 2. In the aforesaid award dated 27.02.2004, the Labour Court, Bikaner answered the reference made by the State Government under Section 10 of the Industrial Disputes Act, 1947 ('the Act of 1947') on the question of validity of termination of services of the respondent-workman from 02.09.1996; and, while holding the termination invalid and illegal, directed the appellant-University to reinstate the workman with benefit of continuity of service and to pay him an amount of Rs. 3,000/- as compensation in lieu of back wages. This award was sought to be questioned by the appellant-University by way of a writ petition in this Court, being CWP No.5431/2005. On the other hand, the respondent-workman also filed a writ petition, being CWP No.4504/2005, questioning the award to the extent of denial of back wages; and with the prayer that the employer be directed to implement the award forthwith. 3. It appears that a show cause notice was issued in CWP No.4504/2005 as filed by the workman but nobody appeared before the Court on behalf of the employer, the present appellant. A learned Single Judge of this Court observed that the employer like the University was not entitled to ignore the award unless its effect was stayed by a superior Court; and proceeded to dispose of the said writ petition on 26.08.2005 with directions that the award be implemented within a month. The learned Single Jude ordered,- "The writ petition is, therefore, disposed of with a direction to the respondent - University to implement the award dated 27.2.2004 within a period of one month from the date of receiving a certified copy of this order." 4. On the other hand, the writ petition as filed by the employer-University (CWP No.5431/2005) remained pending and was ultimately considered by another learned Single Judge of this Court on 18.11.2005. On the other hand, the writ petition as filed by the employer-University (CWP No.5431/2005) remained pending and was ultimately considered by another learned Single Judge of this Court on 18.11.2005. The basic contention as urged before the learned Single Judge in the writ petition so filed by the appellant-University had been that the Labour Court was not justified in recording the finding that the workman had worked for the requisite 240 days only on the basis of so called adverse inference against the employer. The learned Single Judge took note of the fact situation of the case and, after finding no error in the findings and conclusion reached by the learned Labour Court, proceeded to dismiss the writ petition summarily. The learned Single Judge observed and held as under:- "It is contended by learned counsel for the petitioner that the burden was on the workman to prove to have worked for 240 days and since the workman had failed to prove it, the finding could not have been recorded on the basis of adverse inference being drawn against the petitioner, and thereby shifting the burden of proof upon the petitioner. In my view, the submission cannot be accepted, inasmuch as, the case of the workman was that he was working since 1985 and had worked upto 1996. As against this, the petitioner took the stand that as a matter of fact, the workman worked only three months in the year 1986 from 11.9.86 to 12.11.86, then he worked for 26 days in March 1990, 26 days in June 1990 and 14 days in September 1990. Then in the affidavit filed on behalf of the present petitioner also, the stand taken is the same in para- 3 of the affidavit. Thus, according to the petitioner, the workman never worked after working for 14 days in September 1990, and then the workman himself had voluntarily left the work. As against this, from the documents produced by the present petitioner, as noticed by the learned Labour Court, in the impugned award, at page-8, that from Ex.19 it is clear that the workman had worked in October 1990. This does show that the stand taken about the workman having worked only upto 14 days of September 1990 is, on the face of it, not correct. This does show that the stand taken about the workman having worked only upto 14 days of September 1990 is, on the face of it, not correct. In that view of the matter, when the workman's case was that he worked upto 2.9.96, and on the workman's application, the petitioner was directed to produce the record of his working in the fodder farm of veterinary college and dairy farm on tractor, during the period 1.1.96 to 2.9.96, and that record has not been produced, nor any explanation has been given, as to why the record has not been produced, nor the order of the Labour Court, directing the petitioner to produce that record, has been challenged before me, it cannot be said that the learned Labour Court was in error in drawing an adverse inference as drawn. That being the position, I do not find any error in the findings of the learned Labour Court about the removal being violation of Section 25-F. So far the relief is concerned, the learned Labour Court has not awarded backwages, and instead has awarded a consolidated amount of Rs. 3000/- only. Thus, the relief granted is also nor inappropriate qua the present petitioner.Thus, the writ petition has no force, and is dismissed summarily. 5. The employer-University has filed these two appeals (SAW Nos.433/2005 and 55/2006) questioning the aforesaid orders dated 26.08.2005 and 18.11.2005 as passed in the respective writ petitions. It is noticed from the record that with similar nature orders dated 10.08.2007, these appeals were admitted for consideration; and execution and operation of the award of the Labour Court was stayed on the condition that the appellant would comply with the requirements of Section 17-B of the Act of 1947 and grant the wages to the respondent No.1 in conformity therewith. The interim order was confirmed on 11.12.2007 after the appellant pointed out that the provisions of Section 17-B had been complied with. Such a position has hitherto continued. 6. The interim order was confirmed on 11.12.2007 after the appellant pointed out that the provisions of Section 17-B had been complied with. Such a position has hitherto continued. 6. Seeking to assail the orders impugned, the learned counsel for the appellant submitted that the case of the appellant that the respondent No.1 was never engaged, has not received due consideration; and the learned Labour Court and the learned Single Judge have omitted to consider the fundamental objection that the respondent No.1 wanted to take undue advantage of the similarilty of name with one Laxman Ram, who worked in the Poultry Farm at the Veterinary College from 04.12.1985 to 03.01.1986. The learned counsel further contended that the respondent No.1 made rather self-contradictory claim while alleging that he was appointed as a Clerk but was made to work as a Driver; and such an uncertain claim could not have been accepted. The learned counsel for the appellant also referred to the documents on the record of the Labour Court and the statement made by the respondent No.1 with the submissions that stark contradiction in the claim set up and the documents on record has been ignored and the matter has been decided only with reference to the adverse inference. According to the learned counsel, the reference could not have been answered in favour of the respondent No.1 only on the basis of adverse inference for non-production of the record for the period between 01.01.1996 to 02.09.1996. 7. The learned counsel for the appellant further contended that even if it be assumed that the respondent-workman had worked intermittently on daily wages then too, he cannot be said to have worked for the continuous period of 240 days in a calendar year preceding the alleged date of termination and applicability of Section 25-F of the Act of 1947 is totally ruled out. The learned counsel further submitted that even if the termination has been found to be in contravention of Section 25-F of the Act of 1947, the relief of reinstatement remains unjustified in the facts and circumstances of the case. The learned counsel has referred to and relied upon the decisions in DGM Oil & Natural Gas Corporation Ltd.& Anr. v. Ilias Abdulrehman : (2005) 2 SCC 183 and the State Bank of India & Ors. v. S.N. Goyal: (2008) 8 SCC 92 . 8. The learned counsel has referred to and relied upon the decisions in DGM Oil & Natural Gas Corporation Ltd.& Anr. v. Ilias Abdulrehman : (2005) 2 SCC 183 and the State Bank of India & Ors. v. S.N. Goyal: (2008) 8 SCC 92 . 8. Per contra, the learned counsel for the workman-respondent No. 1 has duly supported the award as passed by the Labour Court and the orders as passed in the respective writ petitions. The learned counsel contended that the facts regarding appointment of the workman in the month of December 1985, his subsequently working under the appellant, and his termination in the year 1996 were duly established with the oral and documentary evidence on record including the admission of the sole witness examined on behalf of the employer. The learned counsel further submitted that on 12.10.1999, the workman filed an application before the Labour Court for summoning the attendance register, muster roll and log books relating, inter alia, to his service for the preceding one year from the date of his illegal termination but the employer only produced some other record not pertaining to the relevant period; and deliberately withheld the relevant record despite its availability and despite the orders of the Labour Court who, ultimately on 18.06.2001, passed an order for drawing adverse inference against the employer in case of non-production of record. It is submitted that the order dated 18.06.2001 was never challenged and attained finality; and, in the cumulative effect of the evidence as produced on record and as omitted to be produced, the finding as recorded by the Labour Court remains unquestionable. 9. The learned counsel has supported the finding as reached by the Labour Court on the basis of adverse inference with reference to the decisions in Sriram Industrial Enterprises Ltd. v. Mahak Singh & Ors.: (2007) 4 SCC 94 ; Director, Fisheries Terminal Department v. Bhikubhai Meghajibhai Chavda: (2010) 1 SCC 47 ; Vikas Adhikari, Panchayat Samiti, Choti Sadri, Chittorgarh v. Mohd. Aslam & Ors.: 2005 (5) WLC (Raj.) 599 ; and H.D.Singh v. Reserve Bank of India and Ors.: AIR 1986 SC 132 . Aslam & Ors.: 2005 (5) WLC (Raj.) 599 ; and H.D.Singh v. Reserve Bank of India and Ors.: AIR 1986 SC 132 . The learned counsel further referred to the decision in Workmen of American Express International Banking Corporation v. Management of American Express International Banking Corporation: AIR 1986 SC 458 to submit that Sundays and other paid holidays are to be taken into account for the purpose of reckoning the total number of days on which the workman could be said to have actually worked; and submitted that in the present case, counting the period of continuous service from 01.01.1996 to 02.09.1996, the workman had completed 240 days of service. The learned counsel further submitted that the scope of interference in the findings of fact as recorded in the award of the Labour Court remains limited and has referred to decisions in Shalini Shyam Shetty & Anr. v. Rajendra Shankar Patil: (2010) 8 SCC 329 ; Jai Singh & Ors. v. Municipal Corporation of Delhi and Anr.: (2010) 9 SCC 385 ; Harjinder Singh v. Punjab State Warehousing Corporation: (2010) 3 SCC 192 ; and Anoop Sharma v. Executive Engineer, Public Health Division No.1, Panipat (Haryana): (2010) 5 SCC 497 . 10. On the question of final relief, the learned counsel submitted that there is no reason to deny the relief of reinstatement to the workman; and has referred to the decision of the Hon'ble Supreme Court in the case of Devinder Singh v. Municipal Council, Sanaur: (2011) 6 SCC 584 . 11. After having given a thoughtful consideration to the rival submissions and having examined the record with reference to the law applicable, while we are not inclined to consider interference in the basic findings on facts by the Labour Court as affirmed by the learned Single Judge but then, on the question of final relief, in the overall facts and circumstances, we are of the opinion that it is just and proper to award compensation to the respondent No.1 in lieu of reinstatement and without prejudice to the amount already received by him per Section 17-B of the Act of 1947. 12. 12. The suggestions as made before us that the respondent No.1 attempted to take advantage of similarity of the name with the other workman Laxman Ram or that here had been some contradiction in the claim set up by him, have only been noted to be rejected. Even in the affidavit as filed on behalf of the appellant, the fact of the respondent No.1 having worked with the University was admitted, of course, while raising dispute about the period of his working. It had, inter alia, been stated even in the cross-examination by the witness examined on behalf of the University that the respondent No.1 had worked from December 1985 at the Poultry Farm for 3-4 months and then, he worked in the months of March, June and September 1990 on contract basis. The documents on record also unfailingly show that the workman had indeed been working with the appellant- University. 13. So far the basic question if the petitioner had been working from 01.01.1996 to 02.09.1996 is concerned, it is noticed that in the application dated 12.10.1999, the respondent-workman sought summoning of the records including that relating to said period between 01.01.1996 to 02.09.1996; and specific order was passed by the Labour Court on 01.09.2000 for production of the relevant documents, as mentioned in the said application; and then, the Labour Court ordered, on 18.06.2001, that adverse inference would be drawn for non-production of the documents. Admittedly, such documents were not produced nor any cogent reason in that regard was assigned. In the given set of circumstances, the Labour Court cannot be faulted in drawing adverse inference and as a natural consequences of such adverse inference, the Labour Court was entitled to proceed on the assumption that the documents if filed, would have gone against the stand of the appellant-employer and hence, to conclude that the workman had been working in the period as alleged. In the totality of circumstances, the Labour Court cannot be said to have committed any jurisdictional error in recording the findings against the appellant nor the learned Single Judge has committed any such error in dismissing the writ petition filed by the appellant as to call for interference in intra-court appeal. In the totality of circumstances, the Labour Court cannot be said to have committed any jurisdictional error in recording the findings against the appellant nor the learned Single Judge has committed any such error in dismissing the writ petition filed by the appellant as to call for interference in intra-court appeal. The scope of interference in such matters in the supervisory jurisdiction even otherwise remains too narrow and limited, as could be seen from the ratio of the decisions cited in that regard by the learned counsel for the respondent No. 1. 14. In the aforesaid view of the matter, we do not find it necessary to dilate on all the factual aspects in these intra-court appeals. Suffice it to observe that the present one is not a case of any such apparent error for which, the findings as recorded by the Labour Court be interfered with. 15. Coming to the question of final relief, we are of opinion that the relief of compensation in lieu of reinstatement would meet the ends of justice in this case. This is for variety of facts and factors. In the first place, it is noticed that though the workman claimed to have worked since the year 1985 and upto the year 1996 but we are unable to find from the record such an assertion established that he did work right from the year 1985 until the year 1996. In fact, in regard to the past service, what is available on record are the documents showing his having worked for a few months in the year 1986 and then, for a few months intermittently in the year 1990. No direct evidence is available in relation to the period of the years 1991 to 1995. In fact, even the finding that he worked from 01.01.1996 to 02.09.1996 has essentially been rendered on the basis of adverse inference and not on the basis of any direct and positive evidence. Secondly, the nature of appointment of the workman seems to be casual and temporary and such appointment was not made following the due process of law. In fact, even the finding that he worked from 01.01.1996 to 02.09.1996 has essentially been rendered on the basis of adverse inference and not on the basis of any direct and positive evidence. Secondly, the nature of appointment of the workman seems to be casual and temporary and such appointment was not made following the due process of law. Thirdly, a long time has otherwise elapsed from the date of the alleged retrenchment until passing of the award and subsequently until final decision of the matter inasmuch as the alleged retrenchment was made way back on 02.09.1996 and the award came to be made on 27.02.2004; and, as noticed, during the pendency of these appeals, the operation of this award has remained stayed though the appellant was directed to comply with the requirements of Section 17-B of the Act of 1947. 16. The learned counsel for the respondent-workman has argued with reference to the decision in Devinder Singh's case (supra) that reinstatement is the normal relief in such matters and no case for departure is made out particularly when the Labour Court has passed such an award for reinstatement. The decision in Devinder Singh had been of a slightly different fact situation where the contention of the employer was that the termination was covered by Section 2(oo)(bb) of the Act of 1947 that was not accepted by the Labour Court and termination was found violative of the mandatory requirements of Section 25-F. However, the Division Bench of the High Court held that the workman was only entitled to wages as his appointment was contrary to the recruitment rules and Articles 14 and 16 of the Constitution of India; and that it was not in public interest to sustain the award of reinstatement after long lapse of time. The Hon'ble Supreme Court held that workman's termination could not be brought within the scope of Section 2(oo)(bb) of the Act of 1947 as no material was produced by the employer to show that engagement of the petitioner was discontinued by relying upon the terms and conditions of the employment. It was also noticed that the engagement of the appellant was not preceded by an open advertisement due to ban on regular recruitment imposed by the Government. In the given fact situation and context, it was also observed that the appellant could not be blamed for the delay in determination of the dispute. It was also noticed that the engagement of the appellant was not preceded by an open advertisement due to ban on regular recruitment imposed by the Government. In the given fact situation and context, it was also observed that the appellant could not be blamed for the delay in determination of the dispute. The question if compensation in lieu of reinstatement could be granted in appropriate case, has not been pronounced otherwise by the Hon'ble Supreme Court in Devinder Singh's case (supra). On the other hand, it is noticed that in several of the decisions, the Hon'ble Supreme Court and this Court have directed payment of lump sum compensation in place of reinstatement. In Haryana State Electronics Development Corpo. Ltd. v. Mamni: (2006) 9 SCC 434 , in relation to an ad hoc appointee in a temporary post where 14 years had elapsed after termination, the Hon'ble Apex Court considered it appropriate to grant a lump sum in place of reinstatement. Following the decision in Mamni (supra) and a few other decisions, the Hon'ble Apex Court granted the similar nature relief of compensation in place of the directions for reinstatement in the case of Uttaranchal Forest Development Corpn. v. M.C. Joshi: (2007) 9 SCC 353 . In the case of Arjun Singh & 4 Ors. v. Labour Court, Jodhpur & Ors.: 2004 (4) WLC (Raj.) 145 , a Division Bench of this Court has referred to several of the decisions providing for award of lump sum compensation in lieu of reinstatement in appropriate cases and approved the award so made by the Labour Court in relation to the workmen who had worked only for short periods of time or intermittently. Though the decision as cited by the learned counsel for the appellant in the case of S.N.Goyal (Supra) may not have direct application to the present case as the said one had been a matter of termination of service on account of proved misconduct but then, on the principles of law noticeable from the other decisions as indicated hereinabove, it cannot be said that only the relief of reinstatement is required to be granted in the present case. 17. 17. In the fact situation of the present case and in the totality of the circumstances, which have been noticed hereinbefore, it appears just and proper to substitute the final relief as granted in the award impugned by that of lump sum compensation in the sum of Rs. 75,000/- in lieu of reinstatement. 18. In the result, these appeals are partly allowed to the extent of modification of the impugned award dated 27.02.2004 as made by the Labour Court, Bikaner while granting lump sum compensation in the sum of Rs. 75,000/- [seventy five thousand] to the respondent No.1 in lieu of reinstatement. It shall be required of the appellant to make payment of this amount of compensation within a month from today, failing which, the payment shall be made with interest @ 9% per annum calculated from the date of award. There shall, however, be no order as to costs.Appeals Partly Allowed. *******