Allowed

Jaipur Municipal Corp Andanr v. Hukum Chand and Ors.

Rajasthan HC19 Jul 2018SAW/2043/2017

Case brief

AI extract

What is this about?

The High Court allowed an appeal challenging a Single Judge's order granting regularisation to workmen. The High Court set aside the Single Judge's order for exceeding the scope of the reference and not finding termination illegal, but condoned the delay and remitted the matter.

What did the court decide?

The appeal is allowed; the Single Judge's judgment is set aside; delay is condoned under Section 5 of the Limitation Act; the matter is remitted.

Jaipur Municipal Corp Andanr Vs Hukum Chand and… — Writ and Judicial Review | Rajasthan HC (2018)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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D.B. Special Appeal Writ No. 2043/2017

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Jaipur Municipal Corporation, Through Its Mayor , Tonk Road, Jaipur

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The Assistant Engineer, Motor Garrage , Near Chogan Stadium, Gangori Bazar, Jaipur.

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----Appellants

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Versus

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Hukum Chand Son Of Shri Lala Ram , R/o 29, Brahmpuri, Gandhi Colony, Jaipur Raj.

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Gopal S/o Shri Ramphool, Caste Meena , R/o House No. A-2, Outside Gangapole, In Front Of Jain Nasion, Nakharpuri Colony, Bas Badanpura, Jaipur.

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Industrial Tribunal , Jaipur District, Tonk Road, Jaipur Raj.

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----Respondents

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For Appellant(s) : Ms. Naina Saraf. For Respondent(s) : Mr. C. P. Sharma.

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HON'BLE MR. JUSTICE MUNISHWAR NATH BHANDARI HON'BLE MR. JUSTICE BANWARI LAL SHARMA

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Judgment

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19/07/2018

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By this appeal, a challenge has been made to the order dated 2.1.2017, whereby the writ petition, preferred by the nonappellant-workmen to challenge the award of the Labour Court, has been allowed.

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The non-appellant-workmen raised a dispute before the Conciliation Officer and when settlement could not be arrived, the matter was referred to the Labour Court. After the pleadings and evidence of the parties, Labour Court came to the conclusion that the non-appellant-workmen could not prove their working beyond

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(2 of 6)

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[SAW-2043/2017]

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240 days and otherwise could not make out a case for appointment on regular basis from the date of engagement through contractor. The Labour Court accordingly answered the reference against the non-appellant-workmen. A writ petition was preferred to challenge the award. It has been allowed after holding entitlement of the non-appellant-workmen for regularisation of their services. The appellants have challenged the aforesaid order.

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The appeal has been preferred with a delay of 292 days thus, an application under Section 5 of the Limitation Act to condone the delay has been preferred.

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We would consider the application after considering the merit of the case in view of the judgments of the Apex Court in the case of State of Haryana Vs. Chandra Mani & Ors. reported in (1996) (3) SCC 132, N. Balakrishnan Vs M. Krishnamurthy reported in AIR 1998 (SC) 3222, wherein it has been held that if a matter has substance, it should not be sacrificed on the ground of limitation.

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In view of the above, firstly we are considering merit of the case.

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It is stated that learned Single Judge has gone beyond the pleadings of the writ petition apart from the evidence led before the Labour Court and granted the relief not even prayed. The writ petition was filed to challenge the award of the Labour Court with a prayer to set aside it with all consequential benefits. The award of the Labour Court has not been set aside by the learned Single Judge, thereby, it remains and, contrary to it, relief has been granted. It is even without recording finding on the working of non-appellants to be of more than 240 days. The evidence was

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(3 of 6)

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[SAW-2043/2017]

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not available to prove working of more than 240 days preceding 12 calendar months from the date of retrenchment. In view of the above, termination w.e.f. 31.10.1994 has not been nullified and, in absence of it, the relief for consideration of the case for regularisation could not have been given. The regularisation of services can be made only when the employee is in service. It is otherwise a case where the relief has been granted by the learned Single Judge going beyond the terms of the reference.

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It is settled law that neither the Labour Court nor the High Court, while exercising jurisdiction under Article 226 of the Constitution of India, can go beyond the terms of the reference. It applies even for challenge to the award of Labour Court. A prayer is to set aside the judgment of learned Single Judge while allowing the appeal. The prayer is also made to condone the delay in fling the appeal as reasons for the delay has been given and otherwise merit of the case may not be sacrificed on the ground of delay.

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Learned counsel for the non-appellant-workmen has contested the writ petition. It is submitted that evidence was led before the Labour Court to prove working beyond 240 days in twelve calendar months to the date of retrenchment. The Labour Court recorded finding of fact going beyond the evidence. Challenge to the finding apart from the award of the Labour Court was made.

¶29

It is a case where the Municipal Corporation, Jaipur evolved method to engage a person through contractor instead of making regular selection. The workmen were entitled for appointment on regular basis and, accordingly, the matter was pressed in terms of reference. Even if the learned Single Judge has granted relief going beyond the prayer, the interference in the order of learned

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(4 of 6)

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[SAW-2043/2017]

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Single Judge may not be made on technicalities. It is more so when the petitioner-non-appellants continued to work through contractor even beyond 31.10.1994 though from time to time thus, they became entitled for regularisation of their services. The prayer is accordingly to maintain the judgment of learned Single Judge by dismissing the appeal.

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We have considered rival submissions of learned counsel for the parties and perused the record.

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The facts of the case have been given thus need not to be reiterated other than relevant for disposal of this appeal. We are accordingly touching the merit of the case at the first instance then would be considering the application for condonation of delay. It is in the light of the judgment of Apex Court in the case of Chandra Mani & Ors (supra).

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A dispute was raised by the non-appellant-workmen and was referred to Labour Court on following terms :

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“D;k lgk;d vfHk;Urk] eksVj xSjkt] pkSxku LVsfM;e x.kxkSjh cktkj] t;iqj@t;iqj fuxe tfj;s egkikSj t;iqj uxj fuxe dk;kZy; Vksad jksM+ t;iqj }kjk muds Jfedx.k loZ Jh gqdepan iq= ykykjke] xksiky iq= Jh jkeQwy ,oa fnus’k pan iq= Jh lksgu yky (ftudk izfrfuf/kRo egkea=h] jkt- VªkaliksVZ oDlZ laxBu 881] rhljk pkSjkgk] ckck gfj’kpUn ekxZ] t;iqj }kjk fd;k x;k gS) dks fu;qfDr fnukad ls gSYij dk LFkkbZ in o osrueku ugha fn;k tkuk vkSj mUgsa viuh lh/kh lsokvksa ls 31 vDVwcj 1994 ls lsok i`Fkd fd;k tkuk mfpr ,oa oS/k gS ? ;fn ugha rks Jfedx.k fdl jkgr ds vf/kdkjh gSa ?”

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The perusal of the term of the reference shows challenge to the termination w.e.f. 31.10.1994 instead of regular appointment and payment of salary. The Labour Court was required to consider as to whether workmen were entitled for regular appointment with

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(5 of 6) [SAW-2043/2017]

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all consequential benefits, thereby, termination of service w.e.f. 31.10.1994 to be illegal. The Labour Court has considered the pleadings as well as the evidence led by the parties and came to the conclusion that termination of the workmen is not illegal. It is after considering all the relevant aspects of the matter, which includes the working days. The reference was accordingly answered against the non-appellant-workmen.

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The writ petition was filed to challenge the award. The challenge was made on factual and legal grounds. The learned Single Judge has not considered the aforesaid and issued a direction for regularisation of service. It is without recording the finding that the non-appellant-workmen had worked for 240 days prior to termination so as to apply Section 25-F of the Industrial Disputes Act. It is even without holding termination to be illegal thus to be set aside alongwith the award.

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The learned Single Judge has considered the affidavit, seems to have been filed in the writ petition to show continuity of the non-appellant-workmen even beyond 31.10.1994. It is in ignorance of the fact that while adjudicating a writ petition for challenge the award of Labour Court, no material other than produced before the Labour Court can be considered and in any case it cannot be for the period beyond the date of termination given in the reference. The learned Single Judge even granted the relief without holding termination to be illegal. A direction for consideration of the case for regularisation of service has been given. We are not commenting on the fact that a direction of regularisation of the services cannot be given ignoring the

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(6 of 6) [SAW-2043/2017]

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judgment of Apex Court in the case of Secretary, State of Karnataka Vs. Uma Devi reported in (2006) 4 SCC 1 .

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It is not that the direction for regularisation of service has been given after holding that the non-appellant-workmen is working for last many years. The reference of the judgment of the Apex Court in two cases has been given, but it does not apply on the facts of the case.

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Taking into consideration the aforesaid, we find merit in the appeal. We now consider the application under Section 5 of the Limitation Act. Reasons for the delay has been given and otherwise pursuant to the judgment of Apex Court in the case of Chandra Mani (supra) & N. Balakrishnan (supra) , we are inclined to condone the delay finding merit in the appeal.

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Accordingly, the application under Section 5 of the Limitation Act is allowed and the delay in filing the appeal is condoned.

¶47

In view of the discussions made above, the appeal is allowed and the impugned judgment of learned Single Judge is set aside. However, it is made clear that any subsequent event after 31.10.1994 has not been considered thus if the non-appellantworkmen have any grievance for the subsequent period, they would be free to take it up separately and, for that, this judgment would not come in their way.

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(BANWARI LAL SHARMA),J

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A.Arora/-6.

Jaipur Municipal Corp Andanr v. Hukum Chand and Ors.

Case brief

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Jaipur Municipal Corp Andanr v. Hukum Chand and Ors.

Case brief

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