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Executive Engineer, Public Health Engineering Department v/s Santosh Nath

    C.W.P. No. 4339 of 2019
    Decided On, 10 August 2021
    At, High Court of Rajasthan
    By, THE HONOURABLE MR. JUSTICE INDERJEET SINGH
    For the Petitioner: Archana for Anil Mehta, AAG. For the Respondent: M.F. Baig, Advocate.


Judgment Text
1. Instant Writ Petition has been filed by the Petitioner (hereinafter to be referred as 'Employer') challenging the Award, dated 29.11.2018 passed by Labour Court & Industrial Tribunal, Ajmer (hereinafter to be referred as the Tribunal') in LCR-03/02 (CIS No.LCR-54/2018) whereby the Tribunal while holding the alleged termination of the Respondent (hereinafter to be referred as 'Workman') to be invalid, directed for his reinstatement with continuity of service along with 40% Back Wages from the date of raising the dispute i .e. 5.7.2001.

2. Brief facts of the case are that the Workman in his statement of claim averred that he was engaged by the Employer on 1.10.1990 and continuously worked till February, 1991 but due to certain reasons, he was not continued, however he was again engaged by the Employer on 1.9.1991 and allotted the work of testing and taking care of leakage in pipelines and worked upto 12.3.1992. It was also stated by him that neither any notice of terminating his services nor any amount in lieu thereof was given to him. It was further stated that there had not been any shortage of work ever and despite there being sufficient work, he was terminated from service which is nothing but an Unfair Labour Practice. It was also averred that along with the workman certain other persons were also engaged, one of them namely Hema Gurjar, were also working since 1.9.1991 but only the services of the Workman were terminated while the others have been retained in service and have been regularized and are getting regular pay and thus the Employer has violated the provisions of Section 25-G of the Industrial Disputes Act, 1947 (hereinafter to be referred as the 'Act of 1947'). It was also averred that while considering the other persons for reemployment on different dates after termination of the Workman, he was not offered any appointment nor any priority in relation thereto and the Employer thereby has violated the provisions of Section 25-H of the Act of 1947 and lastly it was prayed that while declaring the termination of the Workman as illegal and invalid, the Employer be directed to reinstate him with continuity of service with all consequential benefits and regular pay at par with the persons junior to the Workman were retained in service and getting regular pay.

3. The Employer filed reply to the statement of claim and stated that services of the Workman were never terminated by the Employer but it was the Workman, who himself left the job. It was also averred that the Employer does not fall within the meaning of 'Industry under the provisions of the Act of 1947 and so far as the other persons, who are alleged to have been retained in service are concerned, their appointment and pay are being governed by the relevant rules. It was further averred that the Workman has worked for 194 days only and he was engaged for a particular period looking to the availability of work and while denying all the averments made in the statement of claim, it was prayed that the claim of the Workman be rejected.

4. A rejoinder to the reply was submitted on behalf of the Workman reiterating the averments made in the statement of claim.

5. On behalf of the Workman, the evidence of Workman himself (AW1) and of one Raghu Nath (AW2) was produced and in documentary evidence certain documents were exhibited as Ex.W 1 to W 4 while from the side of the Employer NAW-1 Arvind Kumar Ajmer, A.En. was produced in evidence and in documentary evidence the Documents M1 to M10 were produced.

6. It is relevant to note here that in the earlier round of litigation the self same termination of the Workman w.e.f. 13.3.1992 came up for consideration before the Tribunal and after hearing the parties the Tribunal came to the conclusion that the Workman was not terminated from service while he himself left the job and accordingly order was passed by the Tribunal,dated 19.8.2006, which was challenged by the Workman by filing a Writ Petition bearing S.B. Civil Writ Petition No.13144/2008, which was decided by this Court vide Order, ated 8.10.2018 remanding the matter back to the Labour Court to re-visit the dispute and give specific finding not only in relation to the provisions of Section 25-F of the Act of 1947 but also with regard to Sections 25-G & 25-H of the Act of 1947 as the dispute raised being pertaining to termination being wrongful or not. Pursuant to the directions of this Court, dated 8.10.2018 the matter has been re-examined by the Tribunal and while holding the termination of the Workman to be illegal and invalid, the Tribunal has directed for reinstatement of the Workman with continuity of service along with 40% Back Wages from i.e. 5.7.2001, vide award dated 29.11.2018, which is under challenge in the present Writ Petition at the instance of the Employer.

7. Counsel for the Employer submitted that the Workman had worked for 194 days only and not for 240 days, therefore, the provisions of Section 25-F of the Act of 1947 are not at all attracted in the present matter. Counsel further submitted that the learned Tribunal did not consider this aspect of the matter that the persons like the present Workman were engaged as per the availability of work, therefore there is no question of any discrimination with the Workman regarding allotment of work. Counsel further submitted that the learned Tribunal failed to take into consideration that the Employer is carrying out the works of Public interest and does not fall within the definition of industry under the Act of 1947 and so far as the other persons of having retained in service after termination of the Workman are concerned, they we're engaged as per availability of work, hence the findings recorded by the learned Tribunal regarding violation of Section 25-G and Section 25-H of the Act, 1947 are perverse and lastly prayed that the award passed by the learned Tribunal be quashed and set aside.

8. In support of the contentions Counsel for the Employer relied upon the Judgment passed by the Hon'ble Supreme Court in the matter of Krishna Bhagya Jal Nigam Ltd. v. Mohd. Rafi, 2006 (9) SCC 697, where in Paras-8 & 9 it has been held as under:

"8. In Manager, Reserve Bank of India v. S. Mani, a Three-Judge Bench of this Court again considered the matter and held that the initial burden of proof was on the Workman to show that he had completed 240 days of service. The Tribunal's view that the burden was on the Employer was held to be erroneous. In Batala Co-op. Sugar Mills Ltd. v. Sowaran Singh, it was held as follows: (SCC pp. 484-85, Para 13)

"13. So far as the question of onus regarding working for more than 240 days is concerned, as observed by this Court in Range Forest Officer v. S.T. Hadimani, the onus is on the Workman."

The position was examined in detail in Surendranagar District Panchayat v. Dahyabhai Amarsinh and the view expressed in Range Forest Officer, Siri Niwas, M.P. Electricity Board cases was reiterated."

9. In R.M. Yellatti v. Asstt. Executive Engineer, the decisions referred to above were noted and it was held as follows: (SCC p. 116, Para 17)

"17. Analyzing the above decisions of this Court, it is clear that the provisions of the Evidence Act in terms do not apply to the proceedings under Section 10 of the Industrial Disputes Act. However, applying general principles and on reading the aforestated Judgments, we find that this Court has repeatedly taken the view that the burden of proof is on the Claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the Workman stepping in the Witness Box. This burden is discharged upon the Workman adducing cogent evidence, both oral and documentary. In cases of termination of services of daily waged earners, there will be no letter of appointment or termination. There will also be no receipt or proof of payment. Thus in most cases, the Workman (the Claimant) can only call upon the Employer to produce before the Court the nominal muster roll for the given period, the letter of appointment or termination, if any, the Wage register, the attendance register, etc. Drawing of adverse inference ultimately would depend thereafter on the facts of each case. The above decisions however make it clear that mere Affidavits or self-serving statements made by the Claimant-Workman will not suffice in the matter of discharge of the burden placed by law on the Workman to prove that he had worked for 240 days in a given year. The above Judgments further lay down that mere non-production of muster rolls per se without any plea of suppression by the Claimant Workman will not be ground for the Tribunal to draw (sic draw) an adverse inference against the Management. Lastly, the above Judgments lay down the basic principle, namely, that the High Court under Article 226 of the Constitution will not interfere with the concurrent findings of fact recorded by the Labour Court unless they are perverse. This exercise will depend upon the facts of each case."

The above position was again reiterated in ONGC Ltd. v. Shyamal Chandra Bhowmik and Chief Engineer, Ranjit Sagar Dam v. Sham Lal ."

9. Counsel further relied upon the Judgment passed by the Hon'ble Supreme Court in the matter of Haryana State F.C.C.W. Store Ltd. v. Ram Niwas and another, 2002 (3) LLN 746 (SC): 2002 (3) CTC 176 (SC): 2002 (2) CLR 1009 (SC): 2002 (5) SCC 654, where in Para No.15 it has been held as under:

"In such a case the question of complying with the conditions precedent to Retrenchment of a Workman provided in Section 25-F of the Act will not arise. In the present case, the Labour Court relying on the oral and documentary evidence cited on behalf of the Management, particularly the order of the Managing Director sanctioning the engagement of the Workmen concerned, held that the engagement/appointment of the Workmen concerned was for a specific purpose and for a particular period and since the purpose had expired, their disengagement was in terms of the contract of service, and therefore, not a "Retrenchment" within the meaning of Section 2(00) of the Act. The High Court has not recorded a finding that there was no contract of service between the Management and the Workmen concerned. In view of the evidence on record the High Court and indeed has not passed recorded any finding that there was no contract of service between the Management and the Workmen concerned. Since, there exists a contract of service with the terms and conditions as noted earlier the position in inescapable that the case of disengagement/termination of the Workmen concerned did not amount to retrenchment. In particular facts and circumstances of the case the Labour Court rightly came to the conclusion that the Workmen were entitled to no relief in the easel The High Court was clearly in error in interfering with the Award passed by the Labour Court. Accordingly, the Appeals are allowed. The Judgments of the High Court in C.W.Ps. Nos.9471 & 9472 of 1999, dated 22.9.2000, allowing the Writ Petitions filed by the Respondent-Workmen are set aside and the award of the Tribunal is restored. There will, however, be no order for costs."

10. Counsel further relied upon the Judgment passed by the Division Bench of this Court in the matter of Dy. Conservator of Forests and another v. Sharfuddin, D.B. Special Appeal Writ No.700/2018, dated 20.8.2019 where in Paras-3 & 4 it has been held as under:

"3. We have heard Counsel for the parties. It is contended by the State that the approach of the Courts these days has been to not direct reinstatement but instead grant lump sum Compensation; the decision in Director, Tiger Project, Sariska, District Alwar v. Data Ram and others, D.B. Special Appeal Writ No. 406/2018 and connected cases on 31.7.2018 has been cited. It is contended that in that Judgment Court had directed that broadly if someone had worked for a year, the Compensation payable would be Rs. 1,00,000; in the case of two years, it ought to have been Rs. 2,00,000 and in the case of three years and above, it ought to be Rs. 3,00,000. Counsel for the Respondent argued that the Labour Court itself has denied Back Wages. In these circumstances, the denial of reinstatement would be unfair.

4. Having considered the overall circumstances and the given facts of this case which clearly shows that the workman was in service for one year, in the opinion of this Court, the ends of justice would be served if lump sum Compensation to the tune of Rs. 2,50,000 (approximately equivalent to two years Back Wages) based on Minimum Wages is given. This amount shall be paid to the Respondent within eight weeks from today."

11. In the alternative, the further argument raised by Counsel for the Employer is that if this Court may deem fit, in lieu of reinstatement some reasonable Compensation be awarded to the Workman and the award of learned Labour Court be modified accordingly.

12. Counsel for the Workman on the other hand submitted that the learned Tribunal rightly passed the award holding violation of Section 25-G & Section 25-H of the Act of 1947 as there was cogent evidence available on the record in support of the claim of the Workman and prayed that the Writ Petition be dismissed.

13. Heard Counsel for the parties and perused the record.

14. It is settled law by the Hon'ble Apex Court in

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the catena of Judgments that it is for the Workman to prove that there is violation of Sections 25-F, 25-G & 25-H of the Act of 1947 as the case may be. In the present case, the Workman pleaded his case before the Tribunal by leading evidence that the provisions of the Act of 1947 have been violated by the Employer while giving effect to his termination and the learned Tribunal after considering the evidence on record found claim of the Workman proved and recorded findings of violation of the provisions of the Act of 1947. 15. Considering the facts and circumstances of the present case and in view of the Judgments passed by the Hon'ble Supreme Court in the matter of Krishna Bhagya Jal Nigam Ltd., and Haryana State F.C.C.W. Store Ltd., (both supra) and also the Judgment passed by the Division Bench of this Court in the matter of Deputy Conservator of Forests and another (supra), I am of the view that the finding of fact recorded by the Tribunal does not require any interference by this Court. However, considering that the reinstatement is not automatic, I deem it just and proper to award Compensation of Rs. 2,50,000 to the Workman in lieu of reinstatement. 16. Accordingly, the Employer is directed to pay an amount of Rs. 2,50,000 to the Workman as Compensation in lieu of reinstatement as observed above, within a period of two months from today. The award of the Tribunal, dated 29.11.2018 is modified in the above terms. The Writ Petition is accordingly disposed of.
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