IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B.CIVIL SPECIAL APPEAL (W) NO.620/2009 MOHD. HAYAT Vs. RSRTC & ORS. Date of Order : : 02.12.2010 HON’BLE THE CHIEF JUSTICE MR.ARUN MISHRA HON’BLE MR.JUSTICE KAILASH CHANDRA JOSHI Mr.Vijay Mehta for the appellant. Mr.Anil Bachhawat, for the respondents. ****** This instant intra court appeal has been preferred questioning the legality of the order dated 10.09.2008 passed in Civil Writ Petition No.748/1995. The writ petition was filed by RSRTC against the award of Industrial Tribunal cum Labour Court, Jodhpur dated 17.08.1994 directing RSRTC to appoint Mohd. Hayat as Helper in the pay scale of 295-500 w.e.f. the date of his initial appointment i.e. from 30.06.1978. An adverse inference has been drawn against the RSRTC on the ground that record of the trade test was not produced, before the Tribunal. The Single Bench while passing the impugned order has observed in Para 5 of the order which is reproduced here as under:- “Having heard learned counsels, this Court is of the opinion that once it was contended before the learned Tribunal that unless the appropriate trade test is passed by the employee concerned merely because he worked on daily wages of Rs.8/- as Helper, he could not be straightway given the grade of Artisan Grade II and since the respondent employee had not passed the said trade test he could not be given the said grade of Artisan Grade II 1 w.e.f. 02.07.1978 as claimed by him, the learned Tribunal could not straight away brush aside the said contention of the petitioner RSRTC merely on the account of failure of result RSRTC to produce such record. It ought to have summoned that record and only after verifying the said trade test result and finding that the respondent employee had passed the trade test it could have awarded the Artisan Grade II to the applicant before the Tribunal. In the absence of the same findings of the Industrial Tribunal cannot be justified and sustained and the same are rendered perverse as the same has been drawn merely on account of failure on the part of RSRTC to produce such record at the time of arguments.” Mr.Vijay Mehta, learned counsel appearing on behalf of appellant submitted that when it was considered necessary that record ought to have requisitioned by the labour court and only after verifying the trade test result the order should have been passed by the labour court, the learned Single Judge ought to have been remitted matter to the labour court after setting aside the award. Mr. Anil Bachhawat learned counsel for the respondent has supported the order passed by the Single Bench. After hearing the learned counsel for the parties and considering the aforesaid reasonings given by the Single Bench in para 5 of the impugned order it is apparent that the Single Bench has interfered with the order of Tribunal on the ground that it was the duty of the Labour Court to have requisitioned the record and after verifying the trade test result the case ought to have been decided. In our opinion, on the aforesaid ground and in the facts and circumstances of the instant case, the matter ought to have been remitted to labour court after setting aside the award passed by it. 2 Hence, we adopt the aforesaid recourse and modify the order of the Single Bench to the extent that the case is remitted back to the Labour Court and Labour Court shall act in accordance with Para 5 of the order passed by the Single Bench while deciding the writ petition. Parties are directed to appear before the Labour Court as agreed on 22.12.2010. With the above direction and modification the appeal stands disposed of. (KAILASH CHANDRA JOSHI), J. (ARUN MISHRA), C.J. Mamta 3