1 State of Rajasthan & Ors. Vs. Kashi Ram & Anr. S.B. CIVIL WRIT PETITION NO.378/1996 (State of Rajasthan & Ors. Vs. Kashi Ram & Anr.) Date of order :: 14.01.2008 HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS Mr.S.N. Tiwari, Dy. Govt. Advocate. Mr.C.P. Trivedi, for the respondents. In this writ petition, the petitioner-department Public Health & Engineer, State of Rajasthan is challenging the award dated 24th March, 1995 passed by the learned Judge, Labour Court, Bikaner whereby learned Judge has passed an award in favour of respondent-workman Kashi Ram and further ordered that the action of the petitioner-department terminating the services of the respondent-workman vide order dated 31st March, 1986 was illegal and was passed without compliance of the mandatory provisions of Industrial Disputes Act. 1947. The learned Judge, Labour Court passed an order for reinstatement of the respondent-workman with full back wages w.e.f. 01st April, 1986, so also passed an order while giving liberty to the petitioner-department for holding inquiry with regard to payment of salary for the period of alleged absence of respondent-workman w.e.f. 01st October, 1984 to 31st March, 1986 2 State of Rajasthan & Ors. Vs. Kashi Ram & Anr. and it is also ordered that after completion of the said inquiry whatever order is passed by the Inquiry Officer for payment of salary of such period, the same may be followed. In this writ petition, it is stated by the petitioner- department that initially respondent-workman was provided appointment on daily rate basis on the post of Helper and later on his services were regularised by way of granting semi permanent status w.e.f. 06th June, 1984. Thereafter, he remained absent w.e.f. 01st October, 1984 and did not turn up. Many letters were issued to him to join duties but he did not turn up then in compelling circumstances due to his continuous absence without sanctioned leave his services were terminated vide impugned order which was published in the Rajasthan Patrika Newspaper on 08th May, 1986 and a copy whereof was also personally supplied to the respondent-workman. Against termination he raised an industrial dispute before Conciliation Officer, Bikaner and after failure of conciliation proceedings the matter was forwarded to the appropriate government for making reference. The appropriate government referred the matter to the learned Judge, Labour Court, Bikaner under Section 10 (1) (G) of the Industrial Disputes Act, 1947. After receiving the said reference vide notification dated 30th November, 1990 the learned Judge, Labour 3 State of Rajasthan & Ors. Vs. Kashi Ram & Anr. Court, Bikaner issued notice to the petitioner-department as well as to the respondent-workman. The respondent-workman filed his claim before the learned Judge, Labour Court and contended that initially he was appointed on daily rate basis w.e.f. 17th March, 1981 and later on he was provided appointment on work-charge basis vide order dated 31st August, 1981 on the post of Helper. It is further contended that he was declared semi permanent in accordance with the Work-charged Rules, 1964 vide order dated 06th June, 1984. It is contended in para No.7 of the claim filed by the respondent-workman that though he was performing his duties but the explanation was sought from him by the Junior Engineer, Salasar on 17th October, 1984 whereby he was called upon to explain why he is absent from duty w.e.f. 01st October, 1984 and he was directed to join the duties. As per respondent-workman he filed his reply before the said authority and apprised him that he was on duty at the time of inspection made by the Junior Engineer, Salasar. In para 11 of the claim, it is specifically mentioned that his son become seriously ill, therefore, he has remained absent from duty and after informing the Junior Engineer, Salasar he proceeded on leave. Thereafter on 27th February, 1986 he filed an application for informing the Junior Engineer to join the duty but he was not allowed to join duties and later on his services were terminated. 4 State of Rajasthan & Ors. Vs. Kashi Ram & Anr. According to the respondent-workman, before terminating his service no inquiry was conducted by the department and straightaway his services were terminated w.e.f. 01st April, 1986 without holding any inquiry, therefore, the action of the petitioner- department is totally in violation of principles of natural justice, so also against the Service Rules. In para 15 of the claim, it is also specifically mentioned that before terminating the services of the respondent-workman neither any notice has been issued nor any compensation was offered as required under the provisions of Section 25-F of the Industrial Disputes Act, therefore, the termination is totally in contravention of mandatory provisions of Section 25 F of the Industrial Disputes Act. The petitioner-department filed reply to the claim before the learned Judge, Labour Court and it is specifically mentioned that after 01st October, 1984 the respondent-workman has remained absent from duty and all efforts were made to inform him that he should join his duties but he has failed to join the duties, therefore, his services were terminated and termination order was published in the Newspaper. As per petitioner-department the respondent-workman has remained absent without any sanctioned leave and ultimately 5 State of Rajasthan & Ors. Vs. Kashi Ram & Anr. after about two years it was felt necessary by the department on the basis of conduct of the respondent-workman to terminate his service. Therefore, there is no question of any inquiry to be conducted by the department so also there was no question of following the mandatory provisions of Section 25-F of the Industrial Disputes Act whereby notice and compensation is required to be given prior to termination of service of workman. The learned Judge, Labour Court, Bikaner after taking into consideration the claim, reply and evidence produced by both the parties arrived at with the finding upon admitted facts that respondent-workman was terminated from service without holding any inquiry so also it is held that before terminating his services no compliance was made as provided under Section 25-F of the Industrial Disputes Act. Therefore, learned Judge, Labour Court set aside the order of terminating services of the respondent-workman and passed the award in favour of the respondent-workman for reinstatement. I have examined the entire record and finding of the impugned award passed by the learned Judge, Labour Court, Bikaner. It is admitted position of the case that the respondent- workman was declared semi permanent w.e.f. 06th June, 1984 and it 6 State of Rajasthan & Ors. Vs. Kashi Ram & Anr. is also admitted that before terminating the services of the respondent-workman no inquiry was conducted by the petitioner- department. So also before terminating the services of the respondent-workman no notice or compensation as provided under Section 25-F of the Industrial Disputes Act was given to the respondent-workman. In the award it is observed that as per provisions of Industrial Disputes Act, there is liberty provided to the employer to file an application under Section 11-A of the Act to prove the misconduct, if no inquiry was conducted by the employer before terminating service of workman upon his misconduct, the said remedy too was not availed by the petitioner-department for conducting inquiry in the Court. In these circumstances, the findings of learned Judge, Labour Court is based on admitted facts of the case, so it is not proper for this Court while exercising power under Article 227 of the Constitution of India to sit as an appellate authority and to re- appreciate the evidence recorded by the learned Labour Court, which is based on admitted facts. Therefore in my opinion, no interference is required in the award passed by the learned Judge, Labour Court, Bikaner. However, since the respondent-workman was not reinstated in 7 State of Rajasthan & Ors. Vs. Kashi Ram & Anr. compliance of award nor he has been paid any amount as provided under Section 17-B of the Industrial Disputes Act, therefore, he is not entitled to get full back wages for the said period. Accordingly, I deem it just and proper to set aside the award to the extent of back wages and in lieu of back wages amount of Rs.50,000/- is allowed to the respondent-workman so also continuity in service as ordered in the impugned award. With above modification in the award, the writ petition is disposed of. The petitioner-department is directed to reinstate the respondent-workman forthwith. However, the respondent-workman is held entitled for regular wages with effect from the date of this order. [GOPAL KRISHAN VYAS],J. A.K. Chouhan/-