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Judgment
Arun Bhansali, J.—This writ petition has been filed by the petitioners-employer aggrieved against award dated 13.02.2001 passed by the Labour Court, Jodhpur, whereby the Labour Court has come to the conclusion that termination of services of respondent-workman w.e.f. 14.10.1992 were illegal and ordered for reinstatement with 25% of the back wages from the date of reference i.e. 17.08.1995.
The respondent-workman raised dispute which was referred for adjudication to the Labour Court regarding his termination w.e.f. 14.10.1992. It was, inter alia, claimed by the workman that he was appointed as Driver on 24.07.1989 and he continued to work till 14.10.1992 when his services were terminated by oral order. Allegations were made regarding non-compliance of provisions of Sections 25F , 25G and 25H of the Industrial Disputes Act, 1947.
The claim made by the workman was opposed by the petitioners by filing reply, it was, inter alia, claimed that workman never worked as a Driver and was a casual labour and has not completed 240 days in a year and, therefore, there was no requirement to comply with provision of Section 25F of the Act. It was also claimed that the workman had abandoned the services as he himself had stooped attending to the work and, therefore, it cannot be said that his services were terminated. It was prayed that the claim be dismissed.
On the part of the workman, he himself appeared as witness and on behalf of the employer one Chitranjan appeared as a witness and they were cross-examined before the Labour Court. The workman admitted that he was not employed as a Driver and he worked at the well and as a Watchman. On cross-examination the petitioner''s witness admitted that the workman worked from 25.07.1989 to 13.10.1992 and based on such admission, the Labour Court came to the conclusion that the workman had worked for 240 days and on account of non-compliance of provisions of Section 25F , the termination was illegal. Regarding the plea that the workman had himself abandoned the work, the tribunal based on the material available on record came to the conclusion that there was no such material which could indicate that the workman abandoned the job himself and based on its finding, ordered for reinstatement and back wages from the date of reference at the rate of 25%.
The writ petition was admitted and the back wages only were stayed and in compliance of the award the workman was reinstated in service.
Learned counsel for the petitioners submits that after reinstatement, the workman worked till 08.06.2010 and then again he voluntarily remained absent, however, on 12.07.2012 during the pendency of the present writ petition, the workman died and his legal representatives have been taken on record.
It is submitted by learned counsel for the petitioner that the Labour Court was not justified in coming to the conclusion that the workman had worked for 240 days, inasmuch, the workman had failed to produce any material in support of his contention and, therefore, no finding in this regard could have been recorded.
It was further submitted that during pendency of the proceedings before the labour court, the workman did not sought production of muster roll and/or attendance register etc. and, therefore, for non-production, the adverse inference cannot be drawn against the petitioners and, therefore, the finding in this regard cannot be sustained.
It was further submitted that the respondent workman was not entitled for grant of any back wages inasmuch as the termination was valid and there were no material on record to come to the conclusion that the workman remained unemployed during the period between his termination and reinstatement and, therefore, the order regarding back wages also cannot be sustained.
Reliance was placed on The Range Forest Officer Vs. S.T. Hadimani, and Rajasthan State Ganganagar S. Mills Ltd. Vs. State of Rajasthan and Another, and Chief Engineer, Ranjit Sagar Dam and Another Vs. Sham Lal, .
While opposing, learned counsel for the respondent submits that the finding of the Labour Court regarding non-compliance of provisions of Section 25F , 25G and 25H is a finding of fact and the same does not call for any interference under Articles 226 and 227 of the Constitution of India.
It was submitted that from the cross-examination of petitioners'' witness, it is apparent that petitioner had worded from 25.07.1989 to 13.09.1992 and no further proof in this regard is required.
Relying on judgment in the case of Director, Fisheries Terminal Division Vs. Bhikubhai Meghajibhai Chavda, , it was submitted that it is not possible for a workman to produce the muster roll etc. before the Labour Court on account of their status and, therefore, the said aspect cannot be used against the workman for depriving him the benefit of the provisions of Act. It was further submitted that meagre amount of 25% of the back wages that too also from the date of reference has been awarded by the Labour Court and the workman has already expired in the year 2012 and, therefore, no interference is called for, so far as grant of back wages is concerned.
I have considered the submissions made by learned counsel for the parties and have perused the material placed on record.
From a perusal of the record, it is apparent that the workman claimed his appointment as Driver and has given out the dates 24.07.1989 for the purpose of appointment and his termination on 14.10.1992. The petitioners in the reply specifically indicated that the respondent workman was not employed as a Driver. However, it was submitted by the petitioners that from 1989-1992 the workman had not worked regularly but it was claimed that he worked during season only. From the record it is also apparent that for making the said submissions of the petitioners about working during the season only of the workman, no material was produced before the Labour Court. It was claimed that the workman was working on the well and as a Watchman. From the nature of work, which was alleged to have been performed by the workman, the same like Watchman cannot be said to be seasonal work and so the submissions made by learned counsel for the petitioners in this regard are not tenable. Further, when the witness on behalf of the petitioner was cross-examined, he unequivocally admitted that the respondent worked during the period 25.07.1989 to 13.10.1992 without any qualification about the work being seasonal etc. and in that view of the matter, the Labour Court was perfectly justified in coming to the conclusion that the respondent-workman had completed 240 days during the previous year and was entitled to protection of Section 25F of the Act.
So far as the submissions made by learned counsel for the petitioner based on judgment of Hon''ble Supreme Court regarding burden on the workman for proving having worked for 240 days is concerned, once based on the material on record and the statements of the petitioners themselves, this has become apparent that a workman has worked for 240 days, the requirement as indicated in the judgments of Hon''ble Supreme Court cannot be stretched to the extent that irrespective of the above state of evidence the workman would be independently required to prove having worked for 240 days and in that view of the matter the judgment sought to be relied on by learned counsel for the petitioner has no application to the facts of the present case.
So far as the grant of back wages is concerned, the tribunal in the facts and circumstances of the case, on account of the nature of work and the status of the workman came to the conclusion that before termination, the workman would have worked somewhere for the purpose of looking after his family and, therefore, restricted the back wages to 25% only and that also from the date of reference, which was about three years after the termination took place. The finding of the tribunal and its order regarding grant of back wages to the extent of 25% cannot be said to be unjustified in the facts and circumstances of the case so as to require interference under Article 226 /227 of the Constitution of India, specially in view of the fact that the workman has since expired in the year 2012 and pursuant to the award passed had worked till 2010 with the petitioners.
In view of the above discussions, no interference is called for in the award impugned, the writ petition is, therefore, dismissed.
No order as to costs.
In view of the fact that the grant of back wages were stayed by this court during the pendency of the writ petition, the back wages may now be paid to the legal representatives of the workman within a period of two months.