1 S.B.CIVIL WRIT PETITION NO.3792/1997 Ram Niwas Vs. Industrial Tribunal, Bikaner & Ors. Date of Order :: 27.03.2009 HON'BLE MR. JUSTICE GOVIND MATHUR Mr Vijay Mehta, for the petitioner. Mr Vineet Kumar Mathur, for the respondents. ... It is stated by learned counsel for the petitioner that due to some inadvertence an error occurred in cause title by mentioning the Superintending Engineer, Border Fencing Circle I, Central Public Works Department, Jaisalmer instead of Superintending Engineer, Border Fencing Circle I, Central Public Works Department, East Block RK Puram, New Delhi. He wants to make such correction in the cause title on permitting same is done before the Court. To challenge validity correctness and propriety of the award dated 31.8.1996 passed by the Industrial Tribunal, Bikaner this petition for writ is preferred. The factual matrix necessary for adjudication of this petition for writ is that the appropriate government under its notification dated 17.1.1995 read with its corrigendum dated 11.4.1996 referred an industrial dispute for its adjudication in the terms that, “Whether termination of workman Sh. Ram Niwas S/o Sh. Bhura Ram Jat, a class IV employee, by the Executive Engineer, Border Fencing Division, Central Public Works Department, Jaisalmer is justified? If not, 2 then for what relief the workman is entitled?” The workman submitted a statement of claim stating therein that he was employed with the Executive Engineer, Border Fencing Division, Central Public Works Department on 11.11.1991 at the basic pay of Rs.750/- per month with other admissible allowances. Up to February 1993 he satisfactorily discharged his duties with the employer, however, on 1.3.1993 he was terminated from service without assigning any reason. The workman alleged violation of the provisions of Section 25F of the Industrial Disputes Act, 1947 by treating his termination as retrenchment. The employer in its written averred that the workman remained in service from 11.11.1991 to 28.2.1993 and subsequent thereto he voluntarily left services. The employer denied retrenchment of the workman, and therefore, prayed to reject the claim made by the workman. Learned Tribunal after considering whatever material available on record reached at the conclusion that termination of the workman was retrenchment from service and that was effected without adhering mandatory condition precedents for valid retrenchment as prescribed under Section 25F of the Industrial Disputes Act, 1947. Learned Tribunal also found violation of the procedure prescribed for effecting a valid retrenchment as per provisions of Section 25G of the Act of 1947. After holding retrenchment of the petitioner bad learned Tribunal allowed a sum of Rs.2,500/- as back-wages. The relief as referred above was given 3 on the count that the office of Executive Engineer, Border Fencing Division, Central Public Works Department, Jaisalmer remained at Bikaner only up to 15.5.1993 and subsequent thereto the workman was not ready and willing to proceed with the office to Jaisalmer. Being aggrieved by the relief granted including denial for reinstatement in service this petition for writ is preferred. It is stated by learned counsel for the petitioner that the workman was terminated from service from 1.3.1993, therefore, as a matter of fact, there was no occasion for employer on 15.5.1993 to ask the workman to join duties at Jaisalmer, where office of the employer was transferred. It is also asserted by learned counsel for the petitioner that as a matter of fact, if it is assumed that an offer was given to the workman to join duties at Jaisalmer then too it is wrong to say that the workman ever denied for that. To substantiate the contention learned counsel for the petitioner workman has pointed out certain portion of the statement given by the employer's witness in cross-examination wherein it is stated that no offer in writing was given to any workman to join duties at Jaisalmer and regarding giving offer to the present workman necessary information was given to him by Junior Engineer – Sh. Pinjani. An affidavit of Sh. Dilip Kumar Pinjani is also available on record wherein he has stated that he asked the workman Ramniwas (the present petitioner) for joining duties at Jaisalmer but he denied for the 4 same. In the affidavit aforesaid no details regarding date and time when such quarry was made with the workman is given. In the cross- examination to Sh. Pinjani nowhere stated definite details regarding officer made to the workman for joining at Jaisalmer. It is also pertinent to note that Sh. Pinjani stated that in the month of February 1993 he asked the workman regarding joining of services at Jaisalmer. As a matter of fact, there was no occasion for asking in the month of February 1993 for joining at Jaisalmer as the office concerned was continuing at Bikaner up to the month of May 1993. In view of the factual position above, it is urged by learned counsel for the petitioner that the denial of relief regarding reinstatement was erroneously denied to the petitioner. Sh. V.K. Mathur appearing on behalf of the respondents while defending the award impugned urged that adequate evidence is available on record to establish that the workman was not willing to work at Jaisalmer being hard station. As per counsel for the respondents there is no reason to disbelieve the statements given by Sh. Dilip Kumar Pinjani and Sh. J.K. Meghani. It is also stated by learned counsel for the respondents that the office in which the petitioner was working was subsequently transferred from Jaisalmer to Jammu and ultimately came to be closed on 31.12.1999 and as such even now no relief relating to reinstatement can be given. 5 Heard learned counsel for the parties and examined the record available. Learned Industrial Tribunal, Bikaner by its award dated 31.8.1996 in quite unambiguous terms held that the petitioner-workman was terminated from service and such termination was nothing but retrenchment. Learned Tribunal also held that the retrenchment of the workman was effected without adhering mandatory condition precedents for valid retrenchment as prescribed under Section 25F of the Industrial Disputes Act, 1947 and also without adhering the procedure for effecting a valid retrenchment as given in Section 25G of the Act of 1947. The employer has not given any challenge to the award dated 31.8.1996 that contains the findings as above. Meaning thereby, the fact regarding termination of the petitioner workman by way of retrenchment from service is accepted by the employer. The issue requires adjudication in present petition for writ is only with regard to the relief extended to the workman. The reason given by learned Presiding Officer of the Industrial Tribunal is that the petitioner workman denied to work with the employer at Jaisalmer being a hard station. Admittedly, the office of the Executive Engineer, Border Fencing Division, Central Public Works 6 Department was transferred from Bikaner to Jaisalmer after 15.5.1993. The petitioner was terminated from service on 28.2.1993, as such, prima facie it appears that in the month of May 1993 there was no occasion for the employer to ask the petitioner for joining the duties at Jaisalmer. True it is that Sh. Dilip Kumar Pinjani in his statement stated that in the month of February 1993 he asked Sh. Ram Niwas ( the present petitioner) regarding his joining at Jaisalmer. It is nowhere stated by Sh. Dilip Kumar Pinjani that in what capacity and under whose directions he asked Ram Niwas, the petitioner, in the month of February 1993 to join duties at Jaisalmer. I also do not find any occasion in the month of February 1993 for asking the petitioner to join duties at Jaisalmer when the office concerned was to be transferred in the month of May 1993. Beside that even if it is assumed that Shri Dilip Kumar Pinjani asked the petitioner about transfer of work and joining at the transferred place then too that is of no consequence as the workman was terminated prior to transfer of the establishment. The petitioner in quite specific terms, during his cross-examination, denied that he was not interested in going Jaisalmer. As a matter of fact, no adequate evidence is available on record on basis of which an inference could have been drawn that the petitioner was not ready and willing to join duties at Jaisalmer. In view of that, the grant of wages only up to 15.5.1993 by the Industrial Tribunal is not correct. The Tribunal after reaching at the conclusion that retrenchment of the workman was void 7 should have allowed reinstatement to the workman. In view of whatever stated above, this petition for writ deserves acceptance, and therefore, the same is allowed. The award impugned dated 31.8.1996 is quashed to the extent it allow only Rs.2500/- to the petitioner-workman against the back-wages from 1.3.1993 to 15.5.1993 and the petitioner workman is declared entitled for reinstatement in service w.e.f. 1.3.1993 to the date on which the office in which the petitioner working stood closed, may that be at Jaisalmer or at Jammu. No order as to costs. (GOVIND MATHUR), J. Jgoyal '