1 D.B. Civil Special Appeal (Writ) No.682/2010 RSRTC vs Satya Narain Vaishnav & Ors. DATE OF ORDER: 08.12.2010 HON'BLE THE CHIEF JUSTICE SH. ARUN MISHRA HON'BLE JUSTICE SH. PRAKASH TATIA Mr.PK Lohra, for the appellant. Mr.RS Saluja, for the respondents. <><><> By the court : (per Hon'ble Mr. Tatia, J.): This D.B. Civil Special Appeal has been preferred to challenge the judgment dated 26.8.2010 rendered by the learned Single Judge of this Court whereby the SBCWP No.5040/2006 – Satyanarain Vaishnav & Ors. Vs. RSRTC and ors. preferred by the 11 petitioners has been allowed. By the same judgment other writ petitions being SBCWP No.5420/2006 - Satyanarain Vaishnav & Ors. Vs. RSRTC and ors. and SBCWP No.2795/2007- RSRTC & Anr. Vs. Judge, Industrial Tribunal and Labour Court, Bhilwara & Ors. were dismissed. However, the present appeal is against the judgment allowing the writ petition no.5040/2006 and has been preferred by the employer RSRTC. As per the facts, the 11 petitioners preferred joint writ petition being aggrieved by their termination of services, which was effected by the respondents-RSRTC during the pendency of the industrial dispute before the learned labour court, Bhilwara in 2 Labour Case no.14/2001. The petitioners were working with the respondent -RSRTC on job work basis for repair of buses of the corporation since 1996 – 97, details of which was given in the schedule annexed with the writ petition as Schedule-A. It is not in dispute that said labour case was pending and during the pendency of that labour case, the appellant-employer passed the order dated 28th Sept., 2003 (Annex.1) taking a decision not to undertake the repair works of the buses on job work basis w.e.f. 1st Oct., 2003, which rendered discontinuation of the services of the writ petitioners – respondents in this appeal. According to the writ petitioners, the said order was in violation of Section 33 of the Industrial Disputes Act, 1947 [hereinafter referred to as the Act of 1947 for short] and, therefore, is void. The learned Single Judge after considering number of judgments cited by both the parties, rejected the appellant's objection raised on the ground of delay on the part of the writ petitioners' challenging the order dated 28th Sept., 2003 availability of alternate remedy by moving application under the Act of 1947 itself before the learned labour court where the dispute was already pending in labour dispute case no.14/2001 or by filing separate application. The learned Single Judge also held that the expression 'condition of service' as used in Section 33 is of wide range and relates to the workman who may be temporary, ad hoc, daily rated, permanent, semi-permanent or otherwise which is in consonance with the law laid down by the Hon'ble Supreme Court in the case of Gujarat Agricultural University Vs. All Gujarat Kamdar Karmachari Union reported in (2009) 15 SCC 335 and held that all the writ petitioners were workmen and their condition of service has been adversely 3 effected by the impugned order passed by the employer- appellant. Learned counsel for the appellant tried to assail the impugned judgment and raised same pleas which have already been considered and rejected by the learned Single Judge. However, the appellant is not in position to dispute the fact situation that the labour dispute case no.14/2001 was pending and during the pendency of that labour case, the impugned order (Annex.1) dated 28th Sept., 2003 was issued because of which, the services of the writ petitioners were discontinued w.e.f. 30th Nov., 2003. The Hon'ble Supreme Court in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs. Shri Ram Gopal Sharma & Ors reported in AIR 2002 SC 643(1) in detail considered the same issue which has been raised by the appellant before the learned Single Judge and before this court with reference to Section 33-2(B) of the Act of 1947, which has been considered by the learned Single Judge. In view of the reasons as given by the Hon'ble Supreme Court, which have been dealt with by the learned Single Judge, we need not to repeat the reasons given by the Hon'ble Supreme Court again and we are of the considered opinion that the learned Single Judge has rightly after relying upon the above judgments allowed the writ petition of the petitioner holding that the writ petitioners were workmen and their service conditions have been adversely affected by the impugned order during the pendency of the labour dispute before the learned labour court and, therefore, the said order is void and cannot be given effect to. Learned counsel for the appellant submitted that there was 4 no reason for awarding 50% of the back wages to the writ petitioners. Learned counsel for the respondents – writ petitioners stated that the respondents are forgoing this benefit which accrued to them by virtue of the impugned judgment. In view of the above reasons, we need not to examine this aspect as there is no dispute between the parties and the employees have forgone their right to get even 50% of the back wages. In view of the above reasons, this special appeal is dismissed so far as the merit of the case is concerned, but in view of the submission on behalf of the writ petitioners- respondents it is held that the respondents shall not be entitled to 50% of the back wages. [PRAKASH TATIA], J. [ARUN MISHRA], CJ. cpgoyal/-