State of Rajasthan vs Mahadev

Veerendra Singh Siradhana, J.—The petitioner - State of Rajasthan, in the instant writ application, has projected a challenge to the validity and legality of the award dated 1st December, 2006, passed by the Labour Court - cum - Industrial Tribunal, Ajmer (hereinafter referred to as ''Tribunal'', for short), wherein the Tribunal while answering the reference on retrenchment of the respondent-workman (Mahadev) on 1st August, 1990, passed an award for reinstatement with continuity of service, but without back wages. However, failure to reinstate the respondent-workman, within one month from the date of publication of the award, entitled the respondent-workman for back wages.

The indispensable essential material facts for adjudication on the controversy raised are: that the respondent-workman was engaged on daily wages basis at Masuda Nursary with effect from 1st April, 1989 and the engagement was terminated on 1st August, 1990. The respondent-workman raised an industrial dispute assailing his retrenchment in violation of Section 25F, 25G and 25H of the Industrial Disputes Act, 1947 (hereinafter referred as the ''Act of 1947'', for short), claiming reinstatement and arrears of back wages with 18% interest. The appropriate government made a reference to the Tribunal, which has been adjudicated upon vide impugned award dated 1st December, 2006.

The learned counsel for the petitioner-State very fairly conceded that the respondent-workman, in fact, did work for more than 240 days, but has vehemently resisted the relief of reinstatement in view of the law declared by the Hon''ble Supreme Court in the case of Asst. Engineer, Rajasthan Dev. Corporation and Another Vs. Gitam Singh, The learned counsel would further submit that in view of a catena of judgments delivered by the Hon''ble Supreme Court, taking note of the law declared in the case of Gitam Singh (supra), this Court has also rendered several decisions in the same line, and by now, it is well settled legal position that the Tribunal while exercising the judicial discretion ought to keep in view all relevant factors, including the mode and manner of appointment, nature of employment, length of service, the ground on which the termination has been set aside etc. The learned counsel further pointed out that a distinction has to be drawn in a case of engagement of a daily wager and employee holding a regular post for the purpose of relief that may be granted. Thus, the impugned award dated 1st December, 2006, directing for reinstatement of the respondent-workman with continuity of service though without back wages, in the peculiar facts and circumstances of the case, cannot be sustained rather compensation would have been the appropriate relief to meet the ends of justice.

Per contra, the learned counsel for the respondent-workman supporting the impugned award dated 1st December, 2006, argued that the retrenchment of the respondent-workman was in violation of the mandatory provisions of the Act of 1947 and therefore, the learned Tribunal committed no error in directing for reinstatement without back wages and the wages have been made admissible only in the event the petitioner-State failed to reinstate the respondent-workman within one month of the publication of the impugned award. The learned counsel emphasized that the impugned award passed by the Tribunal, is perfectly legal and valid, and called for no interference by this Court in exercise of supervisory jurisdiction under Article 226 and/or 227 of the Constitution of India.

I have heard the learned counsel for the parties and with their assistance, perused the materials available on record as well as the impugned award dated 1st December, 2006.

It is not in dispute that the respondent-workman was engaged on daily wages basis with effect from 1st April, 1989 and worked only upto 9th July, 1989 at Masuda Nursary and thereafter, was engaged in Ramgarh Plantation with effect from 10th July, 1989 to 31st July, 1990. The Tribunal after a careful scrutiny of the documentary evidence, concluded that in all the respondent-workman worked for 189 days in the year preceding his retrenchment. Be that as it may, if the national holidays and a period of four and half months, for which the relevant muster roll was not produced by the employer, were added to 189 days, the number of days would be more than 240 days, for which the respondent-workman worked in the employment of the employer. Furthermore, the learned counsel for the petitioner-State has not challenged the finding arrived at by the Tribunal, for the respondent-workman having put in more than 240 days of employment before his retrenchment, but has resisted the relief of reinstatement granted ignoring the nature of appointment, length of service and the manner of the appointment of the respondent-workman.

Hon''ble Apex Court of the land in the case of Gitam Singh (supra), after a survey of various judgments on the controversy in somewhat similar circumstances observed thus:-

In light of the above legal position and having regard to the facts of the present case, namely, the workman was engaged as daily wager on 01.03.1991 and he worked hardly for eight months from 01.03.1991 to 31.10.1991, in our view, the Labour Court failed to exercise its judicial discretion appropriately. The judicial discretion exercised by the Labour Court suffers from serious infirmity. The Single Judge as well as the Division Bench of the High Court also erred in not considering the above aspect at all. The award dated 28.06.2001 directing reinstatement of the Respondent with continuity of service and 25% back wages in the facts and circumstances of the case cannot be sustained and has to be set aside and is set aside. In our view, compensation of Rs. 50,000/- by the Appellant to the Respondent shall meet the ends of justice. We order accordingly. Such payment shall be made to the Respondent within six weeks from today failing which the same will carry interest @ 9 per cent per annum.

For the reasons and discussions herein above as well as taking into consideration the nature of appointment, period of service and manner of appointment and the law declared by the Hon''ble Supreme Court in the case of Gitam Singh (supra), I am of view that a compensation of Rs. 75,000/- (Rupees: Seventy Five Thousand) by the petitioner to the respondent-workman will meet the ends of justice.

I ordered accordingly.

It is further made clear that the payment shall be made to the respondent-workman within four weeks from the date of receipt of a certified copy of this order, failing which the amount shall carry an interest @ 12% per annum.

The writ petition is thus, partly allowed to the extent aforesaid and the impugned award stands modified to that extent.

No order as to costs.