Dismissed

The Registrar University of Ra v. the Presiding Officer Labour C

Rajasthan HC8 Nov 2017CW/4180/2002

Case brief

AI extract

What is this about?

The High Court of Rajasthan dismissed a writ petition challenging a Labour Court award that reinstated a workman terminated after completing 240 days. The Court held the termination was not a fixed-term appointment and thus fell under Section 2(oo)(bb) and Section 25-F of the Industrial Disputes Act, 1947, upholding the order.

What did the court decide?

Award of Labour Court reinstating the workman with continuity of service and backwages was upheld; Writ Petition dismissed.

The Registrar University of Ra Vs the… — Pension and Retirement Benefits | Rajasthan HC (2017)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Writ Petition No. 4180 / 2002

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The Registrar, University Of Rajasthan, Jaipur.

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----Petitioner

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Versus

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The Presiding Officer, Labour Court No.2, Jaipur.

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Shri Tarachand S/o Shri Nand Ram, by caste Mali, through Shri M.F.Beg, Thakur Boraj-Ka-Raswta, Ajmeri Gate, Jaipur.

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----Respondent

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For Petitioner(s) : Mr. Rupin Kala.

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For Respondent(s) : Mr. M.Faisal Baig.

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HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA

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Order

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Judgment reserved on : 10/10/2017 Judgment pronounced on : 08/11/2017

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(1) By way of the present writ petition, the petitionerUniversity has assailed the award dated 19.01.2002 passed by labour Court No.2, Jaipur in reference made to it relating to the dispute raised by the respondent-workman regarding his termination from service dated 1.3.1994. The labour Court has found the termination as illegal and unjustified with directions to reinstate the workman with continuity of service and backwages.

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(2) The Counsel for the petitioner-University has vehemently argued the matter and has stated that the case of the respondent-workman falls within definition of 2(oo)(bb) of the Industrial Disputes Act, 1947 (hereinafter to be referred as ‘the Act of 1947’) and it cannot be said that he was wrongly

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(2 of 9)

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[CW-4180/2002]

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terminated. It is alleged that the labour Court has wrongly interpreted the evidence which had come on record. The case of the University was that the respondent had been appointed for working in the Commission on 24.8.1993 up to the term of the Commission which ended on 28.02.1994 and, therefore, the services of the respondent were under a stipulation within the meaning of Section 2(oo)(bb) of the Act of 1947. It was a contractual service and, therefore, he cannot be said to have been retrenched on 28.02.1994 and benefits of the provisions of Section 25-F of the Act of 1947 were not available and, therefore, there was no occasion to comply with the provisions of Section 25 F of the Act of 1947. Alternatively or in addition thereto, it has been stated that the workman even if held to be wrongfully retrenched, was not required to be reinstated in service with full backwages. Learned Counsel has relied upon several judgments in support of is submissions which shall be adverted to later part of the judgment.

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(3) Per contra, learned Counsel for the respondent submits that it has come on record in evidence and admitted by the witnesses of the petitioner-University that the workman had been appointed on 21.12.1992 on daily wage basis and worked upto 26.5.1993 and then appointed on 24.7.1993 on daily wage @ Rs. 22/- per day and worked upto 28.02.1994 but later period is when the workman was directed to work in the Commission as a Class IV employee. It is further submitted that evidence has come on record that the payment was made from the Budget of the University and not by the Justice Srimal Commission. Learned

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(3 of 9)

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[CW-4180/2002]

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Counsel contest the submission made by the learned Counsel for the petitioner that the retrenchment would fall within the definition of Section 2(oo) and (bb) of the Act of 1947 and submits that the service period during which the workman is worked is from 1992 till 1994 with a short break from 27.5.1993 to 23.08.1993 and thus, it is a case of continuous working from 1992 till 1994 and, therefore, the provisions of the Act of 1947 essentially under Section 25F would apply.

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(4) Learned Counsel further submits that it has come on record before the labour Court that the selection of the respondent-workman was after issuing advertisement. As per the evidence of the Management, respondent alone has appeared in the interview which has been noted by the labour Court and thus, the appointment was not a backdoor appointment and even on daily wages the workman has worked for a period of more than 240 days in the previous calendar year. Learned Counsel further refutes the submissions and submits that the appointment was a fixed term appointment on the ground that the nature of appointment itself mentions the respondent to be a daily wager for getting Rs. 22 per day and, therefore, it cannot be said that it was a contractual appointment. The petitioner has withheld the appointment order which they had issued in favour of the workman and it was the respondents who had the best evidence with them and were required to produce it.

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(5) Learned Counsel also relies on several judgments which shall be dealt with henceforth.

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(4 of 9)

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[CW-4180/2002]

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(6) After having noted submission as above, I have perused the record and find that Shri P.L.Shama who was the Assistant Registrar in the year 1991 to 3.7.1998 has deposed that the workman Tarachand was appointed for WUS Hostel on 21.11.1992 and worked upto to 26.5.1993 at Rs. 22/- per day for cleaning up of the hostel. It is stated that the appointment was given by the Warden who was not empowered to appoint him and the payment of wages was given from the establishment fund of the hostel. In 1993-94 a Commission was appointed for enquiring into the conduct of the Vice Chancellor Dr. Rameshwar Prasad and the workman Tarachand was appointed for the said Commission upto to the completion of period of Commission. In the crossexamination it has been admitted that there is no rule separately for appointment of daily wages basis. The salary is being paid from the University funds and there is no mention of appointment for a fixed period nor any order was issued for appointing him for fixed period.

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(7) Relying upon such an admitted statement of the Assistant Registrar, the award has been passed holding that the matter does not come within the ambit of Section 2(oo)(bb) of the Act of 1947. Evidence of the workman has also been noted and discussed by the labour Court and finding of fact has been arrived at that the workman had completed 240 days in the year immediately preceding the date of termination. Finding of fact has also been arrived at that no notice or compensation amount for retrenchment amount was paid to the workman.

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(5 of 9)

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[CW-4180/2002]

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(8) Mr. Rupin Kala appearing for the petitioner-University has placed before this Court several judgments relating to Section 2(oo)(bb) of the Act of 1947. Firstly, he places reliance upon the judgment reported in (1996) 1 Supreme Court Cases 595State of Rajasthan & Ors. Vs. Rameshwar Lal Gahlot where the undisputed fact was that workman was joined on 28.1.1988 for a fixed term upto 19.11.1988 and the said termination was treated as fallen within definition of 2(oo)(bb) of the Act of 1947 as it was in terms of letter of appointment. In the case reported as (2006) 13 Supreme Court Cases 28- Bhogpur Cooperative Sugar Mills Ltd. Vs. Harmesh Kumar it has been held that Section 25-G and H is not applicable where 2(oo)(bb) was attracted. The case was of wrongful termination of the workman which is not applicable in the present case and, therefore, the said judgment will have no application to the present case. In the case reported as (2007) 1 Supreme Court Cases 533- Gangadhar Pillai Vs. Siemens Ltd. where the workman had been appointed in terms of service and the period of contract was fixed while the in the present case the appointment of the workman was as a Chowkidar from 1993 and thereafter as a peon in the Commission. The removal, therefore, cannot be said to be come within the ambit of a fixed contract of appointment and his appointment is on daily wage basis and at different places Section 2(oo)(bb) of the Act of 1947 would therefore not apply to the present case. The said judgment has, therefore, no application.

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(6 of 9)

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[CW-4180/2002]

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(9) The judgment reported in (2006) 2 Supreme Court

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Cases 794- Haryana State Agricultural Marketing Board Vs.

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Subhash Chand & Anr. was also of a fixed term appointment and would not apply to the present case. In the case reported in

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2013(138) FLR 923 – Bhavanagar Municipal Corporation

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Vs. Salimbhai Umarbhai Mansuri was also a case of termination on expiry of fixed period of 54 days and therefore, it was held that provisions of Sections 25F, G & H would not apply as Section 2(oo) (bb) would not be attracted. Counsel further places reliance on a judgment passed by the Supreme Court in the case reported as (2005) 8 Supreme Court Cases 481- Batala Coop. Sugar Mills Ltd. Vs. Sowaran Singh where the workman was engaged for specific work and for a specific period and, therefore, was held to be come within the meaning of Section 2(00)(bb) of the Act of 1947.

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(10) Having noted the statement of Mr. P.L.Sharma, Assistant Registrar this Court finds that no fixed term appointment was given to the workman. The provisions of Section 2(oo)(bb) would not be attracted in the facts of the present case, therefore, the aforesaid judgments have no application to the present case. The submission of the learned Counsel is rejected on this count.

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(11) Coming to the next submission relating to the question of reinstatement, I find that in the case reported as (2013) 10 Supreme Court Cases 324 -Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) & Ors. - it was held in para 22 as under :-

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(7 of 9)

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[CW-4180/2002]

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“22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer employee relationship, the latter’s source of income gets dried up. Not only the concerned employee, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi judicial body or Court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. Denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the concerned employee and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments. “

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(12) In the case of Raj Kumar Vs. Director of Education

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& Ors.- (2016) 6 SCC 541 the judgment passed by the Delhi High Court of granting compensation instead of reinstatement was held to be unjustified with directions to reinstate and relief of backwages till the date of order alongwith consequential benefits was also granted. In another judgment of Gauri Shankar Vs.

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State (Civil Appeal No.371/2015) decided on 16.04.2015

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(8 of 9)

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[CW-4180/2002]

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order of granting compensation by interfering with the award of the reinstatement and salary was held to be erroneous and reinstatement with future salary and continuation of service was directed. Same principle has been reiterated in Jasmer Singh Vs. State of Haryana (2015) 4 Supreme Court Cases 458 and Harjinder Singh Vs. State of Punjab (2010) SCC Page 192 . Recently on 11.4.2017 in the case of Resident Engineering, Rajasthan State Road Development Construction Corporation Limited Vs. Judge, Labour Court (SBCWP No.11945/2012) (authored by me) relying on judgment reported in (2016) Volume 6 SCC 541- Raj. Kumar Vs. Director of Education & Ors. relying upon aforesaid judgment, this Court has observed in para 9 as under :

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“9. Since there is no reasonable yardstick laid down the Apex Court or by this Court, this Court refrains from entering into a vague arena of awarding compensation in an arbitrary manner and the safe course which can be adopted by this Court would be only reinstatement. Of course, the question of back wages can be decided from one case to another taking into consideration the delay in deciding a case or circumstances where a person may be working at some place or in circumstances where the dispute has been taken up after a considerable delay. Thus, circumstances can be relevant for deciding back wages part. However, this Court is of the view that paying compensation to a workman without lying down any specific parameters would be nothing but an Act of doling out money to a workman without there being any specific criteria. There is always a room of arbitrariness in such matters and therefore, this Court holds that the workman has been rightly reinstated in service without granting any back wages.”

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(13) Essentially this Court sits in appeal while examining the judgment passed by the Labour Court and it is only to the extent of looking into any illegality of jurisdiction or perversity in interpretation of evidence that may be examined for interference

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(9 of 9)

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[CW-4180/2002]

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with the award of the labour Court. It is settled law that this Court will not substitute its opinion regarding relief or otherwise to that which has already been granted by the labour Court as the labour Court is the creature of Act of 1947 and has to act within the four corners of the provisions of the Act of 1947. Contentions of the petitioner-University, therefore, are found to be misconceived and the award passed by the labour Court is upheld.

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(14) The writ petition is accordingly dismissed.

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(SANJEEV PRAKASH SHARMA)J.

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N.Gandhi/

The Registrar University of Ra v. the Presiding Officer Labour C

Case brief

What is this about?

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The Registrar University of Ra v. the Presiding Officer Labour C

Case brief

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