Dismissed

State and Anr. v. Bhanwar Lal and Anr.

Rajasthan HC3 Jan 2023CW/2541/2006

Case brief

AI extract

What is this about?

The High Court quashed the Labour Court award reinstating a workman who concealed that he had tendered voluntary resignation to contest municipal elections. The Court held that once resignation was accepted, no retrenchment occurred and no reinstatement could be granted.

What did the court decide?

Award dated 30.08.2005 passed by the Labour Court is quashed and set aside. No order as to costs.

State and Anr. Vs Bhanwar Lal and Anr. — Pension and Retirement Benefits | Rajasthan HC (2023)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Writ Petition No. 2541/2006

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State of Rajasthan through Director, Ayurved Department, Ajmer.

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District Ayurved Officer, Churu.

¶5

----Petitioners

¶6

Versus

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Bhanwar Lal son of Shri Jaidev Mali resident of Nehru Mohalla, Ramgarh Shekhawati District Sikar through Mahamantri, Harijan Rastriya Jal Majdoor Sangh (Congress), Churu.

¶8

The Judge, Labour and Industrial Tribunal, Bikaner.

¶9

----Respondents

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For Petitioner(s)	: Mr. Mehardeen Mehar, Dy Govt.
	Counsel
For Respondent(s)	: Mr. R.S. Saluja

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HON'BLE MS. JUSTICE REKHA BORANA

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Judgment

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03rd January, 2023

¶14

At the outset, it is relevant to mention that the present is a matter wherein specific concealments and incorrect statements have been made on oath by the respondent-workman before learned Labour Court as well as this Court. On the same hand, it is also a case of serious lacunas on behalf of the petitionerDepartment.

¶15

The brief facts of the case are as under :

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The respondent-workman preferred a claim petition before the Labour Court with the avements that he was appointed as Attendant (Class IV employee) with the respondent-Department on 14.01.1977 and continued to work as such till the year 1994.

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(2 of 9) [CW-2541/2006]

¶18

In the year 1994, he went on leave for a week due to his medical conditions and remained on leave till 08.09.1994. On 09.09.1994, he marked his presence back on duty. But just to harass him, a sudden inspection was made by the Director wherein he was reported to be absent from duties and therefore, was suspended vide order dated 26.09.1994. Subsequently, the said suspension order was revoked vide order dated 20.10.1995 and the respondent-workman was held entitled for all consequential benefits. During his suspension period, due to duress, he preferred an application which was accepted dehors the rules and his services were terminated w.e.f. 14.08.1995. The said termination was challenged on the ground of the same being in contravention to Rule 25F & N of the Industrial Disputes Act, 1947 (for short ‘the Act of 1947’).

¶19

The case of the petitioner-Department before the Labour Court was that there was no retrenchment by the Department rather the workman himself preferred an application dated 14.08.1995 for resignation and the said application was accepted w.e.f. 14.08.1995 vide order dated 23.08.1995. It was also submitted that after his resignation, the workman contested the election of municipality from Ward No.14 of Shekhawati, District Sikar. The entry regarding acceptance of his resignation was even made in his service record. Therefore, there was no case of retrenchment as alleged by the workman. It was a specific case of wilful resignation and the same having been accepted once, the workman was not entitled for any service benefit.

¶20

On the basis of the pleadings, evidence and after hearing the parties, learned Labour Court proceeded on to allow the claim

¶21

(3 of 9) [CW-2541/2006]

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petition as preferred by the respondent-workman holding the retrenchment dated 14.08.1995 of the workman to be illegal and directed for his reinstatement with compensation of Rs.2,500/-. Against the said award dated 23.08.2005 passed by the Labour Court, present writ petition has been preferred.

¶23

Learned counsel appearing for the petitioner-Department submitted that it was a complete case of concealment and wrong facts being stated by the workman before the Labour court. The workman completely concealed the fact of his having preferred an application for resignation and the same having been accepted by the Department. The workman completely denied the fact of having contested the municipal elections before the Labour Court which also is a total incorrect fact stated on oath by him while deposing before the Labour Court. Learned counsel further submitted that the order dated 20.10.1995 was nothing more than an order to end up the disciplinary proceedings which were initiated against the workman by the Department.

¶24

Per contra, learned counsel appearing for the respondent submitted that whole story of the workman applying for resignation and the same having been accepted by the Department is totally false. Had there being any such application and any subsequent order of acceptance, the same would have been placed before the Labour Court and in absence of any such document, the Labour Court was right in reaching to a conclusion that the respondent-workman never applied for resignation. Learned counsel further submitted that had there being any such order of acceptance of resignation, there would have been no need for disciplinary authority to pass the order dated 20.10.1995

¶25

(4 of 9)

¶26

[CW-2541/2006]

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whereby the order dated 14.08.1995 has been withdrawn and the workman had been held to be entitled for all consequential benefits.

¶28

At the stage of hearing on the interim application, keeping into consideration the contrary stands being taken by the respondent-workman as well as the new documents placed on record by the petitioner-Department, this Court vide orders dated 12.07.2011, 02.08.2011 and 23.08.2011 had called for original record of the Conciliation Officer as well as the Labour Court. Parallelly the workman was also directed to file a specific affidavit as to whether he had preferred the application dated 14.08.1995 or not and whether he had contested the municipal election or not.

¶29

In response, an affidavit was filed by the respondentworkman and in the said affidavit he admitted that he contested the municipal election during his period of suspension. So far as the fact of his having preferred the application dated 14.08.1995 is concerned, no specific statement regarding the same was made in the affidavit.

¶30

Heard learned counsel for the parties and perused the material available on record.

¶31

From a perusal of the record as well as the specific facts mentioned above, it is clear that the respondent-workman specifically concealed before the Labour Court the facts of his having moved an application for resignation and his having contested the municipal election. Even in his cross-examination, he specifically denied the fact of his having tendering the resignation as well as contesting the municipal election.

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(5 of 9)

¶33

[CW-2541/2006]

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For quick reference the cross-examination of the respondent-

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workman recorded before the Labour Court on 31.03.2005 is reproduced here under :

¶36

“21-03-05 “kiFk fnykbZ xbZ & eSaus “kiFk i= i<+dj le>dj gLrk{kj fd;s gSA

¶37

esjh fu;qfDr frFkh 14-1-77 gSA eq>s vkilh erHksn ds dkj.k Suspend fd;k FkkA eSaus jkex< uxjikfydk dk pquko ugha yM+kA eSaus ftyk vk;qosZn vf/kdkjh ls cnrehth dk O;ogkj ugha fd;kA esjk O;ogkj larks’ktud jgk] bl ckcr izek.k i= Hkh fn;k Fkk rFkk eq>s cgky Hkh dj fn;k FkkA eSaus ftyk vk;qosZn vf/kdkjh dks R;kxi= ugha fn;k esjh gLrfyfi Hkh ugha gSA ;g xyr gS fd Suspension period esa eSus R;kxi= fn;k gksA esjs ls feyhHkxr ls [kkyh dkxt ij gLrk{kj fy;s FksA es rks pquko esa [kM+k gh ugha gqvkA iqu% ijh{k.k & “kqU;”

¶38

The fact that the respondent-workman tendered his resignation and contested the municipal election after his resignation is even evident from the letter dated 12.09.1995 (Annexure-8) whereby it has been specifically stated that he had tendered his resignation earlier because of some family problems and now he wants to join duties again. The fact of having moved the application dated 12.09.1995 and its contents have not been denied by the respondent-workman. The contents of the application dated 12.09.1995 are reproduced here under :

¶39

“lsokesa] Jh eku thyk vk;qosZn v/khdkjh thyk vk;qosZn dk;kZy; pq: fo’k; %& M;wVh Tokbu djus ds leU/k esaA

¶40

(6 of 9)

¶41

[CW-2541/2006]

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egksn;] uez fuosnu gS fd eSaus dhlh dkj.k ?kjsyw ijhfLFkrh dkj.ko”k LrhQk ns nh;k Fkk ijUrq vc es M;wVh ij okihl vkuk pkgrk gqa vr% fnŒ 12@9@95 dks thyk vk;qosZn dk;kZy; esa mifLFkr gks x;k gqa vr% vthZ Lohdkj dj M;wVh ij ysus dh dik djsA vkidh vrh dik gksxh

¶43

The conclusion that can be drawn from the above facts is that firstly, because of his absence from duty and misconduct, the respondent-workman was suspended vide order dated 26.09.1994. A charge-sheet was served upon him and even an inquiry was initiated. During the period of his suspension, he moved an application and tendered his resignation on 14.08.1995 which was accepted by the Department vide order dated 23.08.1995 w.e.f. 14.08.1995. Soon after his applying for the resignation, he contested the municipal election, the result of which was declared on 28.08.1995 in which he lost. After having lost in the election, he preferred an application dated 12.09.1995 with the submission that earlier, because of some domestic reasons, he had tendered his resignation but now he again wants to join his duty. No order was passed on his application and meanwhile vide order dated 20.10.1995, the Disciplinary Officer held his order of suspension to be bad and directed for payment of his salary for the suspension period. Interestingly, the order dated 20.10.1995 speaks of withdrawal of the order dated 14.08.1995 terming it to be an order of suspension whereas there was no order of suspension passed on 14.08.1995. The order of

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(7 of 9)

¶45

[CW-2541/2006]

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suspension was of 26.09.1994 which evidently was not withdrawn vide order dated 20.10.1995.

¶47

Even if it is assumed that the order dated 14.08.1995 was sought to be revoked/withdrawn vide order dated 20.10.1995, the same would be of not much consequence as infact there was no order of suspension dated 14.08.1995 in existence. Therefore, withdrawal of any order which was not in existence cannot be of much relevance. To the most, it can be held that vide the said order, the salary for the suspension period was directed to be paid to the respondent-workman and the same has admittedly been paid to him.

¶48

The issue now remains only as to whether after acceptance of his resignation, the workman could have been directed to be reinstated by the Labour Court terming the resignation to be a retrenchment.

¶49

As it is clear from the above facts, the workman preferred the application before the Labour Court on total incorrect facts and even concealed the facts. There was a clear concealment of the fact of having tendered resignation and contesting the municipal election, the facts which were denied before the Labour Court and specifically admitted before this Court. In the said scenario, this Court is of the specific opinion that no indulgence in favour of a workman who deposed on oath before the Court and submitted total incorrect facts can be made. This Court is of the specific opinion that the acceptance of the resignation of the workman vide order dated 23.08.1995 w.e.f. 14.08.1995 cannot be held to be a “retrenchment” in terms of Section 2(oo) of the Act of 1947. Sub-clause (a) of Section 2(oo) specifically provides that voluntary

¶50

(8 of 9) [CW-2541/2006]

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retirement of the workman would not fall in the definition of retrenchment. Moreover, it is admitted on record that the workman contested the municipal elections and in terms of Rule 244(1) of the Rajasthan Service Rules, 1951, the workman could not have contested the same without having tendered his resignation/compulsory retirement. Meaning thereby, the respondent-workman, for the purpose of contesting the municipal elections, tendered his resignation which was accepted by the petitioner-Department w.e.f. the same date because of urgency shown by the workman himself as he specifically prayed for the resignation to be accepted w.e.f. the same dated i.e. 14.08.1995.

¶52

Further, it is also clear on record that the respondentworkman preferred a claim at the first instance but withdrew the same on 07.04.1997. After five years of withdrawal of the earlier claim, he again preferred the present claim petition of which reference was made to the Labour Court on 29.04.2002. It is clear on record that although the pleadings were made, the application dated 14.08.1995 as preferred by the respondent-workman, the order dated 23.08.1995 whereby the said application was accepted and the documents pertaining to the workman having contested the election were not produced in evidence before Labour Court by the petitioner-Department. All the said documents have been placed before this Court annexing them along with the present writ petition. Generally this Court would not have entertained those documents but in the peculiar facts and the circumstances of the case where the respondent workman concealed those facts and documents before the Labour Court and while deposing before the court on oath specifically denied those

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(9 of 9) [CW-2541/2006]

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facts, the said documents have been taken into consideration by this Court.

¶55

In the case of Chand Mal Chayal Vs. State of Rajasthan reported in AIR 2006 SC 3340, the Hon’ble Apex Court specifically held that once the resignation is accepted, no jural relationship remains between the employee and the employer and the employee cannot claim for withdrawal of the resignation or reinstatement on the post.

¶56

Therefore, in view of the specific findings of this Court that there was no retrenchment of the respondent-workman, the finding of the learned Labour Court that the same was in violation of Section 25F & 25N of the Act of 1947, cannot be sustained.

¶57

In the result, the writ petition is allowed. The award dated 30.08.2005 passed by learned Labour Court, Bikaner is hereby quashed and set aside. No order as to costs.

¶58

All pending applications stand disposed of.

¶59

(REKHA BORANA),J

¶60

84-Vij/-

State and Anr. v. Bhanwar Lal and Anr.

Case brief

What is this about?

What did the court decide?

State and Anr. v. Bhanwar Lal and Anr.

Case brief

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