1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.4266/95 Rajasthan Gramin Bank & Anr. vs. The Judge, Labour Court, Bharatpur. Date of order : 4/1/2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri R.K. Agarwal for the petitioner. Shri Satyapal Singh for the respondent. ****** Heard the learned counsel for the parties. This writ petition was filed by the petitioner Rajasthan Gramin Bank, which was earlier known as Alwar Bharatpur Anchalik Gramin Bank, against the award dated 2.2.1994 passed by Labour Court, Bharatpur. The Labour Court, Bharatpur while answering the reference regarding validity of the retrenchment of the respondent- workman has held that his removal by the petitioner was violative of Section 25-F of the Industrial Disputes Act and therefore directed his reinstatement with continuity of service and full back wages. This Court while issuing the notice of the writ petition vide order dated 2 23.7.1997, although stayed the operation of that part of award by which the petitioner was required to pay full back wages to the respondent-workman but the remaining direction was kept in tact, as a result of which, the respondent-workman was reinstated in service and ever since he has been continuously working with the petitioners. Shri R.K. Agarwal, the learned counsel for petitioners has submitted that the appointment of the respondent was made only on casual post and he was engaged on daily wage basis. He was not engaged against any sanctioned post and, therefore, his case would fall within the exceptional clause 2 (oo)(bb) of the Industrial Disputes Act, being a contractual appointment. In such a case, the learned counsel for petitioners submitted that the petitioners were not required to comply the provisions of Section 25-F of the Act. It is contended that even the kind of the appointment that the respondent was given, he cannot be considered to be a `workman'. It is argued that in this case, the petitioner-bank being a reasonable rural bank, the appropriate 3 Government in the present case would be Central Government and reference made to the Labour Court by the State Government was incompetent. In any case, he could not be engaged as Messenger because he is not middle pass, which is the minimum eligibility requirement. The learned counsel relied on the judgement of Supreme Court in Himanshu Kumar Vidyarthi & Ors. vs. State of Bihar & Ors.-(1997) 4 SCC 391. He also relied on the judgement of Punjab and Haryana High Court in Jagbir Singh vs. Haryana State Agriculture Marketing Board & Anr.-JT 2009 (9) SC 396 and contended that in that case, it was held that considering the nature of such appointment, instead of reinstatement, the Labour Court/Industrial Tribunal ought to have been awarded lump sum compensation. Shri Satya Pal Singh, the learned counsel for the respondent opposed the writ petition and submitted that the respondent was reinstated in service and he has been continuously working with them ever since 1995. It is contended that the objection with regard to eligibility of the respondent 4 and that the Central Government was only competent for making reference, was never raised before the Labour Court. The petitioners have not been able to prove before the Labour Court that they ever complied with the provisions of Section 25-F of the Act and that there was no contractual appointment in the case of the respondent. Having heard the learned counsel for the parties and perused the impugned judgement, I find that the petitioners indeed were required to prove before the Labour Court that they complied the provisions of Section 25-F of the Industrial Disputes Act. The cited judgements of the Supreme Court were studied respectfully, but here in the instant case, I find that the respondent- workman has actually been discharging the duties with the petitioners ever since the present writ petition is filed and this is how he has substantively served with them with almost one and a half decade even thereafter. In this case, the petitioners have not been able to show that they complied with the provisions of Section 25-F of the Act. There is/was no evidence on 5 record to show that the appointment of the respondent was in the nature of contract so as to attract exception clause 2(oo)(bb) of the Act. The objection as to the incompetence of the State Government for making reference and about eligibility of respondent cannot be for the first time raised before this Court because these questions were both of mixed questions of law and fact. However, keeping in view the fact that the respondent was engaged with the petitioner for the period from 17.6.1983 to 30.4.1985 and even though the reference was made by the appropriate government vide notification dated 30.6.1986, yet the award was passed belatedly on 2.2.1994. In such an eventuality, I do not find any justification for awarding full back wages to the respondent-workman. The direction of the Labour Court to the extent of requiring the petitioner to pay him full back wages and other consequential benefits for the interior period, therefore, deserves to be set aside and is accordingly set aside. The impugned award is thus modified and the 6 remaining part of the award is upheld. The writ petition is accordingly allowed in the manner indicated above. (MOHAMMAD RAFIQ), J. RS/