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2016 DIGILAW 1522 (RAJ)

Ramniwas v. Executive Engineer

2016-10-20

KANWALJIT SINGH AHLUWALIA

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ORDER : Kanwaljit Singh Ahluwalia, J. 1. By this common order, five writ petitions filed by the workmen against the award rendered by the Labour Court, Bharatpur shall be decided together. 2. In all the five writ petitions, award of different dates have been assailed by the petitioners passed by the Presiding Officer, Labour Court, Bharatpur in the respective claims filed by the petitioners/workmen. A perusal impugned awards reveals that the petitioners/workmen approached the labour court after inordinate delay of 6-7, 8, and 12 years. For facility and reference, the facts are being gathered from S.B. Civil Writ Petition No. 10103/2016 titled as Ramniwas vs. The Executive Engineer & Ors. 3. During the course of arguments, the learned counsel for the petitioners has averred that the impugned award passed by Shri Abhay Jain, RJS, District Judge cadre is non est, as he was not competent to hold the post of Presiding Officer of Labour Court, since he was not having requisite experience of three years as Additional District Judge and thus, the award is liable to be set aside. 4. Yesterday this court had decided S.B. CWP No. 10649/2015, Director, Agriculture Department & Ors. vs. District Trade Union (ATAK). The order dated 19.10.2016 passed in SBCWP No. 10649/2015, reads as under:- "The present petition has been filed under Article 226 of the Constitution of India by the State of Rajasthan to assail the award dated 22.1.2015 rendered by the Labour Court, Bharatpur. Briefly stated, Amar Singh, Karan Singh and Juri were appointed as Workman in the Agriculture Department of the State of Rajasthan in the year 1983, 1980 and 1981, respectively. The services of Amar Singh were retrenched on 23.6.1989, whereas services of Karan Singh and Juri were retrenched on 8.2.1990. Workmen aggrieved against their retrenchment filed a claim and the Labour Court vide award dated 26.9.1994 on the basis of compromise ordered reinstatement. The workmen on the basis of award rendered on the basis of compromise joined their services on 6.10.1994. The workmen were continuously paid daily wages. They approached the Labour Court and prayed that after completion of two years they are required to be declared permanent and are also entitled to payment of regular pay scale. It was further pleaded that the persons junior to the workmen were already made permanent by the respondent. The workmen were continuously paid daily wages. They approached the Labour Court and prayed that after completion of two years they are required to be declared permanent and are also entitled to payment of regular pay scale. It was further pleaded that the persons junior to the workmen were already made permanent by the respondent. The Labour Court relied upon the judgment rendered by the Single Judge of this Court in Bhairon Singh & Anr. vs. State of Rajasthan & Ors, RLR 1994 (2) 759, to hold that after workmen had rendered requisite service of two years, they are to be made permanent as they have already completed service of ten years. The learned counsel for the petitioner could not deny that the respondent workmen have rendered service of more than ten years. The learned counsel for the petitioner has raised an objection that the impugned award is non est as posting of Shri Abhay Jain Presiding Officer of Labour Court subsequently, was declared illegal by this Court. A co-ordinate Bench had called upon Mr. Rajendra Prasad, the learned Additional Advocate General to assist this Court qua the above argument raised. The learned Addl. Advocate General relying upon the judgment rendered by the Supreme Court in the case of M/s. Beopar Sahayak (P) Ltd. vs. Vishwa Nath & Ors., (1987) 3 SCC 693 , has very fairly stated that doctrine of de facto shall come into operation and award cannot be termed as non est. Therefore, the prime argument raised by the State has been given up by the learned Additional Advocate General. This Court appreciate the highest ethical standards and fairness shown by Mr. Rajendra Prasad, the learned Additional Advocate General. Mr. Neeraj Chandrana assisting Mr. Rajendra Prasad, AAG, stated that the Workman Charge Rules will not apply to the Agriculture Department. It is undeniable fact that the workmen have rendered more than ten years of service. It is highly unfair practice that a person who has rendered service for more than ten years as a daily wager is not being accorded status of permanent. It was incumbent for the State Government to regularize the services of the workmen and accord permanent status. Relying upon the judgment rendered by this Court, the Labour Court has given the award. No fault can be found with the same. Consequently, the present writ petition is dismissed being devoid of merit." 5. It was incumbent for the State Government to regularize the services of the workmen and accord permanent status. Relying upon the judgment rendered by this Court, the Labour Court has given the award. No fault can be found with the same. Consequently, the present writ petition is dismissed being devoid of merit." 5. In view of the law laid by the Supreme Court in the case of Beopar Sahayak (P) Ltd. vs. Vishwa Nath & Ors., (1987) 3 SCC 693 , the argument raised is no longer tenable and hence, the award passed by the Labour Court cannot be termed as non est. 6. In SBCWP No. 10103/2016, preferred by Ramniwas, the labour court had dismissed the claim of the petitioner on the ground that the dispute has been raised by the workman after an inordinate delay of eight years. While dismissing the claim of the petitioner on the ground of delay, the labour court placed reliance upon the judgments of the Supreme Court in the cases of Assistant Executive Engineer vs. Sri Shivalinga: 2002 (92) FLR 601; U.P. State Road Transport Corporation vs. Ram Singh and Anr. 2008 (17) SCC 627; Dharappa vs. Bijapur Coop. Milk Producers Societies Union Ltd.; 2007 (9) SCC 109 ; M/s. Obeetee Pvt. Ltd. vs. State of U.P. & Ors. 2010 (124) FLR 345 and M/s. Areva T & D India Ltd. vs. State of U.P. & Ors. 2012 (133) FLR 582. Furthermore, the labour court dismissed the claim of the petitioner/workman on the ground that he has failed to discharge the onus to prove that for a period 240 days he worked as daily wager preceding twelve months from the date of termination. 7. In the concluding para, the Labour Court in the award dated 6.2.2015 passed in LCR No. 259/1998 titled as Ramniwas vs. Ex. En. & Ors., held has under:- "21. Since no reason has been indicated in the claim petition such delay ordinarily should not be condoned. The alleged date of retrenchment indicated by the workman is 31.12.1990 and therefore, the relevant preceding 12 months are 01.01.90 to 30.12.90. According to the muster roll submitted by the respondent before this Court for this relevant period, the copy of which is on record, the workman has not worked for single day. The alleged date of retrenchment indicated by the workman is 31.12.1990 and therefore, the relevant preceding 12 months are 01.01.90 to 30.12.90. According to the muster roll submitted by the respondent before this Court for this relevant period, the copy of which is on record, the workman has not worked for single day. It is settled preposition of the law that the initial burden of proof is always upon the workman and the workman employed on ad hoc basis as daily wager is required to prove the working for 240 days in preceding 12 months from the date of termination. My view is fortified by the dictum of Hon'ble Apex Court in the case of Fritiz T.M. Clement and another, V/s Sudhakaran Nadar and another, AIR 2002 SC 1148 , R.M. Yellati V/s. Asst. Executive Engineer 2005 IX AD (SC) 261, Chairman Municipal Board and others V/s. Mahavir Prasad Sharma and others, 2007 (3) RLW 1999, Megh Raj Singh others V/s. ITDC Ltd. & Anr., 2013 LAB. I.C. (NOC) 131 (Del), Ganga Kisan Sahkari Chini Mills Ltd. V/s. Jai Veer Singh, (2007) 7 SCC 748 . The workman has failed to prove this onus and accordingly the statement of claim is liable to be dismissed on merits. 22. The upshot of the aforesaid discussion is that the reference is dismissed and the copy of the Award be sent to the State Government for publication." 8. The learned counsel for the petitioners could not explain the delay on the part of the petitioners/workmen to approach the labour court. Hence, no interference is warranted and the writ petitions being devoid of merit are dismissed.