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2014 DIGILAW 1314 (RAJ)

Asstt. Engineer, Phed, Sub v. Moola Ram

2014-07-03

GOPAL KRISHAN VYAS

body2014
JUDGMENT 1. - The instant writ petition has been filed by the Assistant Engineer, PHED, Sub Division Taranagar, District Churu, to challenge the award passed by the Judge, Labour Court, Bikaner dated 29.3.1997, whereby the Judge, Labour Court, Bikaner passed an award in favour of the respondent workman and set aside the order of termination dated 31.3.1984 on the ground that it is in violation of Section 25F of the Industrial Disputes Act, 1947, (for short hereinafter referred-to as "the Act") and passed an order for reinstatement in service and full back wages with effect from the date of award. 2. Learned counsel for the petitioners submits that the award impugned is totally unjustified for the reason that the respondent workman himself left the job and did not complete 240 days in one calendar year, therefore, the finding given by the Judge, Labour Court with regard to working for more than 240 days in one calendar year is totally erroneous. Learned counsel for the petitioners further argued that the award impugned suffers from material irregularity and illegality because without any evidence, the finding is given by the Judge, Labour Court that the termination of the respondent workman is in violation of Sections 25F & 25G of the Act, therefore, the award impugned deserves to be quashed. 3. Per contra, learned counsel for the respondent workman argued that the Judge, Labour Court, has passed an award with due application of mind and after taking into consideration the entire facts and documentary evidence, which is produced on record, so also while taking adverse inference for not producing the record before the court, therefore, the finding given by the Judge, Labour Court, with regard to the working period of more than 240 days in one calendar year, is based upon sound appreciation of evidence as well as facts, therefore, the award impugned ought not to be interfered with. 4. After hearing learned counsel for the parties, I have perused the award impugned. In the award, it was specifically pleaded by the respondent workman that he had worked for more than 240 days in the office of the petitioner department but his services have been terminated without following the provisions of the Act, therefore, the termination is illegal. 4. After hearing learned counsel for the parties, I have perused the award impugned. In the award, it was specifically pleaded by the respondent workman that he had worked for more than 240 days in the office of the petitioner department but his services have been terminated without following the provisions of the Act, therefore, the termination is illegal. The Judge, Labour Court after granting an opportunity to lead evidence to the petitioner department and the respondent workman, finally adjudicated the award in which it is held that as per the affidavits and the documentary evidence, produced by the workman, he has completed 240 days in one calendar year. It is also observed in the award impugned that in-spite of filing an application by the respondent workman to produce the relevant muster rolls, the relevant documents were not produced before the court, therefore, the Judge, Labour Court took adverse inference against the petitioner department and held that termination of services of the respondent workman is bad in law so also in contravention of the provisions of the Act. In my opinion, the findings given by the Judge, Labour court does not require any interference because the same are based upon sound appreciation of law and evidence on record so also while taking adverse inference against the petitioner department, therefore, the finding given by the Judge, Labour Court with regard to non compliance of Section 25F of the Act for terminating the services of the respondent workman does not require any interference but in the opinion of this court, the order of reinstatement is not in consonance with the adjudication made by the Hon'ble Supreme Court in various pronouncements. Admittedly, the respondent workman has worked for only one year as per the finding given by the Judge, Labour Court, therefore, the order of reinstatement is not sustainable in law in view of the judgment of the Hon'ble Supreme Court rendered in the case of Jagbir Singh v. Haryana State Agriculture Marketing Board & Anr., reported in (2009) 15 SCC p.327 in which it has been held by the Hon'ble Supreme Court that if Labour Court came to the conclusion that retrenchment of daily rated employee is in violation of the provisions of Industrial Disputes Act then reinstatement with full back wages is not proper and in those cases, compensation should be awarded. Para 7 and 14 of the said judgment reads as under: "7. It is true that the earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, thee has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice. 14. It would be, thus, seen that by a catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section 25-F although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been warded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee." 5. In view of the fact that the services of the respondent workman were terminated in the year 1984 so also the fact that the award impugned has not been implemented till today, therefore, after 30 years since his termination, it is not proper to maintain the order of reinstatement in view of the above judgment. However, in lieu of the reinstatement, I deem it proper to grant reasonable compensation. 6. In view of above, while following the aforesaid judgment of Hon'ble Supreme Court, this writ petition is partly allowed. Consequently, the award passed by the Judge, Labour Court, Bikaner, dated 29.3.1997 is hereby quashed to the extent of order of reinstatement of the respondent workman and it is ordered that the petitioner department shall pay compensation of Rs. 6. In view of above, while following the aforesaid judgment of Hon'ble Supreme Court, this writ petition is partly allowed. Consequently, the award passed by the Judge, Labour Court, Bikaner, dated 29.3.1997 is hereby quashed to the extent of order of reinstatement of the respondent workman and it is ordered that the petitioner department shall pay compensation of Rs. 1.50 lacs to the respondent workman in lieu of reinstatement in service because the respondent workman is litigating his case since long but worked only for one year in the year 1983-84. The amount of compensation in lieu of reinstatement shall be paid to the respondent workman within a period of three months from the date of receipt of certified copy of this order.Petition partly allowed. *******