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2017 DIGILAW 2523 (RAJ)

Executive Engineer v. Hanuman Singh

2017-11-16

SANGEET LODHA

body2017
JUDGMENT : Sangeet Lodha, J. This petition is filed by the petitioner challenging the award dated 9.3.1999 passed by the Labour Court, Bikaner in Labour Dispute Case No. 19/1998, published vide notification dated 9.6.1999 and order dated 4.6.2004, rejecting an application preferred by the petitioner under Rule 22A of the Industrial Disputes Rules, 1957 ('the Rules of 1957') for setting aside the ex parte award. 2. The reference was made by the State Government to the Labour Court, Bikaner, vide notification dated 28.1.1998 in the following terms: ^^D;k vf/k’kk"kh vfHk;Urk tynk; foHkkx xzkeh.k ,oe~ 'kgjh [k.M jrux<+ ftyk pw:@lgk;d vfHk;Urk tynk; foHkkx xzkeh.k o 'kgjh mi[k.M jrux<+ ftyk pw: }kjk Jfed Jh guqekuflag iq= Jh jkensojke tkfr tkV fuoklh djoklj rg- jrux<+ ftyk pq: dks fnuakd 16-9-92 ls lsok i`Fkd fd;k tkuk mfpr ,oa oS/k gS \ ;fn ugha rks Jfed fdl jkgr ,oa jkf’k dks izkIr djus dk vf/kdkjh gS \** 3. The respondent-workman submitted the statement of claim before the Labour Court stating that he was appointed as Daily Wages Labourer on 26.2.1992 by an oral order of Executive Engineer, PHED, Ratangarh. It was averred that later by an oral order, he was sent to perform the duties in the office of Assistant Engineer, PHED, Rural Sub Division, Ratangarh and thereafter in the office of Junior Engineer of the Sub Division. According to the workman he continued in service from 26.2.1992 to 16.9.1992 in the rural sub division as well as urban sub division under the Junior Engineer. It was contended that the petitioner's services were brought to an end w.e.f. 16.9.1992 without compliance of provisions of Section 25F of the Industrial Disputes Act, 1947 (for short "the Act"). That apart, the petitioner also alleged violation of provisions of Section 25G, 25H, 25N & Rule 77 of the Rajasthan Industrial Disputes Rules, 1958 ('the Rules of 1958'). 4. Nobody appeared on behalf of the petitioners employer before the Labour Court despite service and therefore, the matter was proceeded ex parte against them. 5. After due consideration of the affidavit filed by the workman and the document annexed thereto, the Labour Court arrived at the finding the workman had not completed 240 days of service in a calendar year preceding the date of retrenchment and therefore, the provisions of Section 25F of the Act are not attracted in the matter. 5. After due consideration of the affidavit filed by the workman and the document annexed thereto, the Labour Court arrived at the finding the workman had not completed 240 days of service in a calendar year preceding the date of retrenchment and therefore, the provisions of Section 25F of the Act are not attracted in the matter. The Labour Court further arrived at the finding that factum of person junior to the workman being kept in service is also not proved, however, on account of non compliance of provisions of Rule 77 of the Rules of 1958, in not publishing the seniority list of the workmen, declared the termination of services of respondent-workman illegal and directed his reinstatement in service w.e.f. 16.2.1992 with wages and other benefits from the date of publication of the award or after one month from the date of the award whichever is earlier. The petitioners-employer preferred an application under Rule 22A of the Rules of 1957, for setting aside the ex parte award which stand rejected by the order impugned. Hence, this petition. 6. Learned counsel appearing for the petitioners contended that the Labour Court has seriously erred in rejecting the application preferred by the petitioners for setting aside the ex parte award, ignoring the plausible explanation for non appearance furnished on their behalf. Learned counsel submitted that having arrived at the categorically finding that the violation of provisions of Section 25F & 25G is not established, the award passed by the Labour Court declaring the termination of the respondent workman illegal solely on the ground that the seniority list in terms of Rule 77 of the Rules was not published is ex facie erroneous and deserves to be set aside. 7. On the other hand, learned counsel appearing for the respondent workman submitted that non compliance of mandatory provisions of Rule 77 renders the termination illegal and thus, the award passed by the Labour Court relying upon a Bench decision of this Court in the matter of General Manager, Northern Railway, New Delhi v. Judge, Central Industrial Tribunal & Another' 1991 WLN 37, does not warrant any interference by this Court in exercise of its supervisory jurisdiction. 8. I have considered the rival submissions and perused the record of the Labour Court requisitioned by this Court. 9. 8. I have considered the rival submissions and perused the record of the Labour Court requisitioned by this Court. 9. Indisputably, the respondent workman had not completed 240 days of service in a calendar year preceding the date of retrenchment and therefore, the Labour Court arrived at a categorical finding that the provisions of Section 25F of the Act, are not attracted in the matter. The stand taken by the workman that while terminating the services, the principle of 'last come first go', has not been adhered to, was also not proved on the basis of any cogent evidence on record. It is true that as per Rule 77 of the Rules of 1958, the employer is under an obligation to prepare a list of all workmen in a particular category from which retrenchment is contemplated arranged according to the seniority of their service in that category and cause a copy thereof to be pasted on a notice board in a conspicuous place in the premises of the industrial establishment atleast seven days before the actual date of retrenchment. But then, there was only a bald assertion made on behalf of the workman before the Labour Court that the provisions of Rule 77 of the Rules of 1958, have not been complied with. No evidence has been led on his behalf to establish that while effecting retrenchment, persons junior to him were retained in service. 10. In the matter of "State Bank of Bikaner & Jaipur v. Om Prakash Sharma", (2006) 5 SCC 123 , the Hon'ble Supreme Court while examining the issue of purported non compliance with the Rule 77 of the Rules of 1958, observed as under:- "11. By reason of the said rule, the employer has been enjoined with a duty to prepare a list of all workmen in the particular category from which retrenchment is contemplated. Such a list was not prepared. The consequence of non-maintenance of the said document has been provided in Rule 79 of the ID Rules, being imposition of penalty. In case of violation on the part of the management to comply with the statutory provisions, thus, it could have been subjected to penalty. Rule 77 may be mandatory in character as was urged by Mr. The consequence of non-maintenance of the said document has been provided in Rule 79 of the ID Rules, being imposition of penalty. In case of violation on the part of the management to comply with the statutory provisions, thus, it could have been subjected to penalty. Rule 77 may be mandatory in character as was urged by Mr. Calla, but, only because the appellant herein did not maintain the prescribed register, the same by itself would not mean that the respondent herein would be entitled to be reinstated in service with back wages without establishing that the provision of Section 25-H was violated. The termination of the workman was not in issue. In any event, the Labour Court did not arrive at a finding that the termination of services of the appellant was illegal. He had not completed 240 days of service. In that view of the matter, the provisions of Section 25-F of the Industrial Disputes Act, 1947 were not required to be complied with." 11. The specific dispute referred to the labour court regarding the validity of the termination of services having not been found in violation of the provisions of 25F & 25G of the Act, the termination cannot be held to be illegal solely on the basis of alleged violation of the provisions of Rule 77 of the Rules of 1958. In this view of the matter, the impugned award passed by the Labour Court deserves to be set aside. 12. Accordingly, the writ petition is allowed. The impugned award dated 9.3.99 passed by the Labour Court, Bikaner in Labour Dispute Case No. 19/98, is set aside. No order as to costs.