Partly allowed

Sub Divisional Officer v. Jagdish Prasad Sanwaria S/O Amilal

Rajasthan HC18 Nov 2021SAW/610/2021

Case brief

AI extract

What is this about?

Division Bench reversed the Labour Court award for Jagdish Prasad Sanwaria due to non-disclosure of prior High Court dismissal. For other workmen, the Court modified the award to grant reinstatement with continuous service but without backwages, dismissing the State's appeal in part.

What did the court decide?

Jagdish Prasad Sanwaria: award reversed. Others: reinstated with continuity of service, backwages denied, to be done within one month.

Sub Divisional Officer Vs Jagdish Prasad… — Labour and Industrial Disputes | Rajasthan HC (2021)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

¶2

D.B. Special Appeal Writ No. 610/2021

¶3

Sub Divisional Officer, Mundawar, District Alwar.

¶4

District Collector, Alwar.

¶5

----Appellants

¶6

Versus

¶7

Jagdish Prasad Sanwaria S/o Amilal, Harsoli Road, Mundawar, District Alwar.

¶8

Shyoram Singh S/o Sadhuram Gurjar, R/o Khori Mohalla, Mundawar, District Alwar.

¶9

Anil Kumar Jain, At Present Resident Of Plot No. 533, Scheme No. 10, Jain Bhawan Road, Alwar.

¶10

----Respondents

¶11

Connected With

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D.B. Special Appeal Writ No. 1729/2019

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Shri Hariom Sharma S/o Shri Radha Kishan Sharma, R/o Village Ratawali, Tehsil Laxmangarh, District Alwar (Raj.)

¶14

----Appellant

¶15

Versus

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Sub Divisional Officer, Laxmangarh, District Alwar

¶17

District Collector, Alwar (Raj.)

¶18

Anil Kumar Jain, R/o At Prresent Plot No. 533, Scheme No. 10, Jain Bhawan Road, Alwar (Raj.)

¶19

----Respondents

¶20

D.B. Special Appeal Writ No. 624/2021

¶21

Sub Divisional Officer, Mundawar, District Alwar (Raj.)

¶22

District Collector, Alwar (Raj.)

¶23

----Appellants

¶24

Versus

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Narendra Kumar Sharma S/o Murari Lal Sharma, Resident Of Tehsil Road, Tiwari Sadan, Mundawar, District Alwar (Raj.)

¶26

Anil Kumar Jain, At Present Resident Of Plot No. 533, Scheme No. 10, Jain Bhawan Road, Alwar.

----Respondents

(2 of 6)

[SAW-610/2021]

For Appellant(s) : Mr. Anil Mehta, AAG with Ms. Archana for appellants in SAW No.610/2021 and 624/2021 and for the respondents in SAW No.1729/2019

¶31

For Respondent(s) : Mr. Rahul Kamwar for the respondent in SAW No.No.610/2021 and 624/2021 and for appellant in SAW No.1729/2019

¶32

HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON'BLE MS. JUSTICE REKHA BORANA

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Order

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18/11/2021

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D.B. Civil Misc. Application No.1/2021 in D.B. SAW No.610/2021 and D.B. Civil Misc. Application No.1/2021 in D.B. SAW No.624/2021:-

¶36

For the reasons mentioned in the applications, the same are allowed. Documents are taken on record.

¶37

D.B. Special Appeal Writ Nos. 610/2021, 1729/2019 and 624/2021:-

¶38

These appeals arise out of common nucleus of facts. Appeal No.610/2021 is filed by the State Government to challenge the judgment of the learned Single Judge dated 24.03.2021 and involves two workmen Jagdish Prasad Sanwaria and Shyoram Singh. The workmen had raised an industrial dispute challenging their termination dated 01.04.2001. The Labour Court came to the conclusion that workmen had worked for more than 240 days in 12 calendar months immediately preceding the date of termination. Their services were terminated without following the procedure as provided in Section 25-F of the Industrial Disputes Act. The Labour Court therefore directed reinstatement with 50% backwages.

¶39

(3 of 6)

¶40

[SAW-610/2021]

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This award was challenged before the High Court. The learned Single Judge by an impugned order dated 24.03.2021 dismissed the petition upon which present appeal has been filed.

¶42

In case of Appeal No.624/2021, the Government has challenged the judgment of the learned Single Judge dated 24.03.2021 in Civil Writ Petition No.308/2019 in which the award passed by the Labour Court in case of workman Narendra Kumar Sharma under similar circumstances was challenged. The award was passed under similar circumstances in case of Jagdish Prasad Sanwaria and his colleague Shyoram Singh except that the Labour Court in this case has awarded 25% backwages.

¶43

Appeal No.1729/2019 is filed by the workman Hariom Sharma in whose case under similar circumstances the Labour Court had directed reinstatement with 25% backwages. In a petition filed by the Government to challenge such award the learned Single Judge by a judgment dated 02.12.2019 in Civil Writ Petition No.26182/2018 remanded the proceedings before the Labour Court since effective representation was not made on behalf of the Government.

¶44

Upon perusal of the documents on record and after hearing learned counsel for the parties we find that the workman Jagdish Prasad Sanwaria had earlier approached the High Court along with some other workmen who were terminated simultaneously. The writ petition which included Jagdish Prasad Sanwaria was numbered as 711/1998. The learned Single Judge by a detailed judgment dated 23.11.2001 dismissed the petition. At the time of filing of the petition Jagdish Prasad Sanwaria and other petitioners were not yet terminated. They had approached the Court apprehending their termination. However during pendency of the

¶45

(4 of 6)

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[SAW-610/2021]

¶47

petition the termination orders were passed. The learned Single Judge came to the conclusion that the petitioners have no case for interference including with respect to the termination. The Special Appeal against the order of learned Single Judge was also dismissed by the Division Bench on 23.03.2006. Insofar as Jagdish Prasad Sanwaria is concerned thus the issue should have rested there. Without disclosing these events he approached the Labour Ministry who made a reference to the Labour Court and the Labour Court partially allowed the reference as noted above. Learned counsel for the petitioner Jagdish Prasad Sanwaria may be correct in pointing out that the State Government had not produced the said judgment of learned Single Judge and the Division Bench before the Labour Court. However it was the duty of the employee concerned who had availed the remedy of challenging his termination before the High Court and thereafter sought to raise industrial dispute having failed in such attempt to disclose these facts. The workman cannot get away from the consequences of such events by pointing out that the Government had not produced such documents on record before the Labour Court. Firstly this is an undisputed position. Secondly the judgments of the High Court are in public domain and can be relied upon even without a formal production in judicial proceedings. Lastly as noted it was the duty of the workman who had availed the remedy and had failed to make full disclosures before seeking to pursue alternative remedy. We are not blaming the workman for this lapse since it is possible to believe that out of the ignorance of law or ill-advice he failed to make such disclosure before the Labour Court. Nevertheless the consequences of such developments

¶48

(5 of 6)

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[SAW-610/2021]

¶50

cannot be avoided. Insofar as Jagdish Prasad Sanwaria is concerned, award of the Labour Court is reversed.

¶51

Coming to the rest of the workmen, we notice that the Labour Court had on available evidence on record come to a factual finding that the workmen had worked for more than 240 days in 12 calendar months immediately preceding the date of termination. The respondent could not produce any evidence to the contrary and could not sustain what they are seeking to argue before us namely, that it was a contractual engagement and liable to be terminated on a specific date or specific event taking place.

¶52

With respect to the case of Hariom Sharma, in our opinion learned Single Judge should not have remanded the proceedings. There was no explanation for not producing necessary evidence before the Labour Court on behalf of the Government. In all other cases of similar nature the Labour Court as well as the learned Single Judge had come to the conclusion that the termination was illegal. After 20 years of the event it would be cruel to revive the proceedings before the Labour Court only to complete the formality.

¶53

Before deciding the final relief to be granted to the workmen we must consider the following factors.

¶54

Firstly the workmen had actually discharged duties for about 2-1/2 years before they were terminated in the year 2001. Secondly they first approached the High Court by filing writ petition. It was in the year 2006 that the High Court relegated them to avail the remedy before the Labour Court. Reference was therefore sought and granted in the year 2006. The Labour Court passed its award in the year 2018. There is thus a long gap of time since the date of termination till passing of the award

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(6 of 6)

¶56

[SAW-610/2021]

¶57

directing reinstatement. The initial period of actual engagement was also about 2 to 3 years. One possibility under such circumstances would be to award lumpsum compensation instead of directing reinstatement and backwages. Learned counsel for the workmen however submitted that previously the workmen had shown inclination to accept reinstatement without backwages though today due to absence of the workmen he is unable to make such a statement.

¶58

Considering the totality of the facts and circumstances of the case noted above, in our opinion the interest of the justice will be served by modifying the award of the Labour Court in all three cases of Shri Shyoram Singh, Shri Narendra Kumar Sharma and Shri Hariom Sharma by providing that they will be granted reinstatement with continuity of service and all other consequential benefits except backwages for the intervening period till the date of reinstatement. If reinstatement is not yet granted, the same shall be done within a period of one month from today beyond which period they will be paid wages whether reinstated or not. The award in case of Jagdish Prasad Sanwaria is set aside. In case of Hariom Sharma the judgment of the learned Single Judge is reversed and award of the Labour Court as modified above is restored.

¶59

All the appeals are allowed in part and disposed of accordingly. All pending applications are also disposed of.

¶60

(REKHA BORANA),J

¶61

(AKIL KURESHI),CJ

¶62

KAMLESH KUMAR/N.GANDHI/S-144-146

Sub Divisional Officer v. Jagdish Prasad Sanwaria S/O Amilal

Case brief

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What did the court decide?

Sub Divisional Officer v. Jagdish Prasad Sanwaria S/O Amilal

Case brief

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What did the court decide?

What the court decided

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