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2013 DIGILAW 502 (RAJ)

State of Rajasthan v. Shiv Kumar Acharya

2013-03-01

P.K.LOHRA

body2013
JUDGMENT : 1. 1. Invoking supervisory jurisdiction of this Court enshrined under Article 227 of the Constitution of India, the petitioner has called in question the impugned award dated 3rd May, 2006 (Annex.5), passed by the Labour Court, Bikaner. The Labour Court by the award under challenge has adjudicated the reference in favour of the respondent-workman and against the petitioners by concluding that the termination of the respondent-workman w.e.f. 22nd November, 1989 is illegal and bad in law and as such the respondent-workman is entitled for reinstatement with continuity of services without back wages. The learned Labour Court also awarded him cost of Rs. 2,500/- only. 2. For assailing the impugned award, the petitioners have, inter alia, alleged in the petition that the respondent-workman was engaged on daily wages w.e.f. 14th August, 1988 and served the petitioners upto July, 1989. As per the version of the petitioners, the respondent-workman was a casual labour, who was employed for undertaking certain contingent works, and after July 1989, he has voluntarily stopped coming to office and as such he has abandoned his services. With these positive assertions, the petitioners have pleaded that the respondent-workman was not entitled for protection of the provisions of Chapter (V-A) of the Industrial Disputes Act, 1947 (for brevity, hereinafter referred to as `the Act of 1947'). By citing clause 12(3) of the standing orders governing the service conditions of respondent-workman, the petitioners have also alleged in the writ petition that by remaining absent for eight consecutive days, he is automatically ceased to be in employment. Challenging the findings recorded by the learned Labour Court, the petitioners have also averred in the writ petition that the learned Labour Court has not examined the matter in its entirety and further more the delay and laches on the part of respondent-workman of more than ten years in raising the industrial dispute has also been over- looked by the learned court below. The factum of employment of the petitioners for 240 days in a calender year was also seriously disputed by the petitioners. 3. On behalf of the respondent-workman, reply to the writ petition was submitted and the averments contained in the writ petition were refuted. In the return, the respondent-workman has averred with full emphasis that he has worked for more than 240 days in a calender year and he has rendered the services without any interruption from 14.08.1988 to 21.11.1989. 3. On behalf of the respondent-workman, reply to the writ petition was submitted and the averments contained in the writ petition were refuted. In the return, the respondent-workman has averred with full emphasis that he has worked for more than 240 days in a calender year and he has rendered the services without any interruption from 14.08.1988 to 21.11.1989. Thus, with these pleadings, the respondent-workman has defended the impugned award passed by the learned Labour Court and submitted that the findings recorded by the learned court below regarding violation of Sections 25-F and 25-G of the Act of 1947 is just and proper and calls for no interference. 4. I have heard the learned counsel for the parties and perused the materials on record. 5. The learned Deputy Government Counsel, Mr. K.R. Saharan, has vehemently argued that the findings of the learned Labour Court regarding illegal termination of the respondent-workman are contrary to materials on record and are therefore perverse. The learned counsel for the petitioners has further urged that the learned Labour Court has not properly appreciated the issue regarding abandonment of job by the respondent-workman inasmuch as while rejecting the said contention of the petitioners, the learned court below has simply relied upon the affidavit of the respondent-workman. The learned counsel for the petitioners has also strenuously contended that the burden of proving the duration of the employment was on the respondent- workman, which was not discharged by him and as such the impugned award is not at all sustainable. 6. Repelling the contentions raised on behalf of the petitioners, the learned counsel appearing for the respondent-workman, Mr. S.S. Khatri, has argued that the learned court below has examined the matter thoroughly and thereafter it has concluded in clear and unequivocal terms that the termination of the respondent-workman is bad in law as the same is in clear negation of mandatory provisions of Sections 25- F & 25-G of the Act of 1947. 7. Mr. Khatri, the learned counsel for the respondent-workman, has further argued that the petitioners have not produced the relevant record showing the duration of the employment of the workman and that being so the conclusions of the learned court below are just and proper and calls for no interference. 7. Mr. Khatri, the learned counsel for the respondent-workman, has further argued that the petitioners have not produced the relevant record showing the duration of the employment of the workman and that being so the conclusions of the learned court below are just and proper and calls for no interference. Lastly, the learned counsel for the respondent-workman has also argued that in exercise of supervisory jurisdiction of this Court, appreciation of evidence is not permissible and the jurisdiction as such is to be exercised sparingly with great care and circumspection. Buttressing his submissions with full emphasis, the learned counsel for the respondent-workman has urged that the writ petition is having no merit, and therefore, the award impugned deserves to be upheld. 8. I have considered the rival submissions. Contention of the learned counsel for the petitioners that the learned Labour Court has erred in recording the finding about 240 days of the employment of the respondent-workman in a calender year is per se not tenable for the simple reason that this finding of fact is based on appreciation of evidence. The finding of fact recorded by the learned court below cannot be upset by this Court in exercise of supervisory jurisdiction of this Court. The plea of the petitioners about abandonment of job by the respondent-workman has been dealt with by the learned court below in its award by thoroughly examining the matter. The learned Labour Court has recorded a definite finding that the petitioners-employers have failed to prove the plea of abandonment by producing cogent and convincing material. Therefore, in my considered opinion, the learned court below has not committed any infirmity much less legal infirmity in rejecting the contention of the petitioners about abandonment of job by the respondent-workman. In this view of the matter, the conclusions of the learned court below that termination of the respondent-workman was in violation of mandatory provisions of Sections 25-F & 25-G of the Act of 1947 cannot be faulted. 9. As regards the contention of the petitioners that the respondent-workman has raised the industrial dispute after inordinate delay of ten years, in my considered opinion, the learned court below has not recorded cogent and convincing reasons for granting the relief of reinstatement to the workman. Therefore, this question requires consideration. 9. As regards the contention of the petitioners that the respondent-workman has raised the industrial dispute after inordinate delay of ten years, in my considered opinion, the learned court below has not recorded cogent and convincing reasons for granting the relief of reinstatement to the workman. Therefore, this question requires consideration. Apart from delay in raising the industrial dispute, the duration of employment of the respondent-workman, which is hardly of 15 months is of great significance to reexamine the reliefs granted by the learned Labour Court. True, it is that the normal rule is that in the event of violation of mandatory provisions contained in Section 25-F and 25-G of the Act of 1947, workman is liable to be reinstated but then the learned Labour Court or the tribunal can also mould the reliefs keeping in view the delay and laches on the part of the workman and other relevant facts. In the present case, besides the inordinate delay, the factum of employment of a short duration of the respondentworkman is of great significance, and therefore, in my view, the learned Labour Court ought to have departed from the normal rule of granting relief of reinstatement. The appropriate relief in such a case could have been awarding of lump sum amount of compensation in lieu of reinstatement. 10. This view of mine is fully fortified from the following judgments of Hon'ble Apex Court viz. Haryana State Electronics Development Corpn. Ltd. v. Mamni, [ (2006) 9 SCC 434 ] , Haryana Urban Development Authority v. Om Pal, [(2007) 2 SCC (L&S) 255] , Idrishan Yakubkhan Pathan v. State of Gujarat though Public Prosecutor [ (2007) 9 SCC 352 ] , Uttar Pradesh State Electricity Board v. Laxmi Kant Gupta (2009) 16 SCC 562 ] and Bharat Sanchar Nigam Ltd. v. Man Singh, [ (2012) 1 SCC 558 ] . In all these cases, the Apex Court has held that with passage of time, it came to be realised that an industry should not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all. The Apex Court has further held in these pronouncements that the relief is to be granted is discretionary and not automatic. A person is not entitled to get something only because it would be lawful to do so. 11. The Apex Court has further held in these pronouncements that the relief is to be granted is discretionary and not automatic. A person is not entitled to get something only because it would be lawful to do so. 11. Reliance in this behalf can profitably be made to a latest verdict of Apex Court in the case of Assistant Engineer, Rajasthan Development Corporation & Anr. v. Gitam Singh, Civil Appeal No. 8415/2009 decided on 31.01.2013 . In this case, the Apex Court has reiterated the earlier view and has held that if a daily rated employee has worked for shorter duration relief of reinstatement is not proper and to meet the ends of justice, the appropriate relief is awarding of lump sum amount of compensation. 12. Resultantly, the present writ petition is allowed in part and the impugned award to the extent it has granted relief of reinstatement to the respondent-workman is set aside and the relief granted to the petitioner is moulded by way of awarding lump sum amount of compensation to the respondent-workman to the tune of Rs. 1,75,000/- only in lieu of reinstatement. The petitioners are directed to pay the lump sum amount of compensation to the respondent-workman within a period of two months from today. It is clarified that besides lump sum amount of compensation, the respondent-workman shall not be entitled for any other relief.Costs are made easy. *******