R.S.R.T.C. and Others vs Hari Kishan and Others

Sandeep Mehta, J.—Heard learned counsel for the parties. Perused the impugned award.

The instant writ petition has been preferred by the Rajasthan State Road Transport Corporation (hereinafter referred to as the Petitioner Corporation) against the award dated 3.4.2000 passed by the learned Labour and Industrial Tribunal, Sri Ganganagar whereby the learned Tribunal accepted the reference instituted at the instance of the respondent employee and while declaring his removal from service to be illegal retrenchment, the Corporation was directed to forthwith reinstate the employee in service with 50% back wages. This Court dismissed the interim stay application filed on behalf of the Corporation on 28.10.2004.

Counsel for the respondent workman states that despite the stay application having been rejected, the respondent workman has not been taken back on duty.

Succinctly stated, the facts are that the respondent workman raised an industrial dispute with the allegation that he was engaged as a casual labour in the petitioner Corporation in the year 1989. He continued to work continuously on daily wage basis for years together. In the month of November, 1993, he was terminated from service without following the mandatory procedure prescribed under the I.D. Act. Upon notice being issued by the Tribunal, the petitioner Corporation put in appearance and filed a reply to the statement of claim submitted on behalf of the workman. The Corporation took a plea in the reply that the workman was engaged through an oral contract purely on job basis for washing the Corporation''s buses. The payment was made to the respondent on job work basis (per bus washed) and thus he was not a casual labour as claimed in the statement of claim. The Corporation placed on record certain documents in order to substantiate the plea that the payment was not made to the claimant on daily wage basis but rather was made on job work basis in accordance with the oral contract executed between the parties. The specific assertion made by the workman in his affidavit was that he worked in the Corporation on daily wage basis till the year 1993. The Corporation restricted its pleadings to filing documents of payment till August, 1990. No denial was made of the workman''s assertion that he continued to work as daily wage worker with the Corporation till November, 1993. No question was put to the workman on this issue during his cross examination. The Tribunal accepted the plea of the Corporation that the workman was engaged on job work basis till the month of August, 1990. However, for the period between September, 1990 to November, 1993, the assertion of the workman that he continued to work on daily wage basis with the Corporation was held established. The plea raised by the workman that he was terminated from his daily wage engagement without following the mandatory procedure of the I.D. Act was not disputed and denied by the Corporation. The Tribunal thus, held that the removal of the workman amounted to illegal retrenchment entitling him to be reinstated in service with 50% back wages. The Corporation has approached this Court by way of the instant writ petition against the said award dated 3.4.2000 passed by the Labour Court, Sri Ganganagar.

I have heard counsel for the parties and have gone through the material on record.

On going through the record, it is evident that the workman''s assertion regarding his having worked on daily wage basis with the Corporation till November, 1993 was not denied by the Corporation either in the pleadings or during evidence. The specific plea of the workman that he was removed from service in the month of November, 1993 without following the mandatory procedure prescribed under the I.D. Act was not challenged. In this view of the matter, the Tribunal was justified in holding that the termination of the workman having been effected without following the mandatory procedure of Section 25F of the I.D. Act amounted to illegal retrenchment.

Now, coming to the question whether the Tribunal was justified in directing reinstatement of the workman in service. It is apposite to mention that the reinstatement was ordered after a period of nearly seven years from the date of illegal retrenchment of the workman. It is not in dispute that the workman did not resort to any proceedings under Section 33 (c)(2) of the Act for enforcing the award and thus, continues to be out of service.

Resultantly, keeping in view the ratio of the judgment of the Hon''ble Supreme Court in the case of B.S.N.L. Vs. Bhurumal, , it would not be just and proper in the present scenario to sustain the impugned award to the extent the reinstatement of the workman was directed. Instead, the workman deserves to be awarded compensation of Rs. 2 lakhs in lieu of reinstatement.

Counsel for the respondent submits that though the application under Section 17B preferred by the workman was allowed by the Division Bench of this Court on 15.12.2005 but the petitioner Corporation has not made the payment of the dues till date. In this view of the matter, the respondent workman shall also be entitled to the amount accrued to him in compliance of the order dated 15.12.2005.

Consequently, the writ petition is partly allowed. The impugned award so far as it holds the termination of workman to be illegal retrenchment is affirmed. However, the direction to reinstate the workman in service with 50% back wages is modified. Now, the respondent workman shall be entitled to a compensation of Rs. 2 lakhs in lieu of reinstatement. In addition thereto, he shall also be entitled to the amount accrued to him in terms of the Division Bench order dated 15.12.2005 with interest at the rate of 6% per annum from the date of accrual till the date of actual payment.

This order shall be complied within a period of two months, failing which the whole accrued amount shall carry interest at the rate of 12% per annum.

No order as to cost.