1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T D.B. CIVIL SPECIAL APPEAL (W) NO.529/2003 STATE OF RAJASTHAN VS. MEHFUJ HUSSAIN Date of Judgment : 7.10.2010 HON'BLE MR. JUSTICE A.M. SAPRE HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. Yashpal Khileree, for the appellant. BY THE COURT : (PER HON'BLE A.M. SAPRE,J.) This is an intra court appeal filed by the writ petitioner of W.P. No.1756/2002 under Rule 134 of the Rajasthan High Court Rules, 1952 against an order dated 1.7.2002 passed by the Single Judge in the aforementioned writ petition. 2. By impugned order, the learned Single Judge dismissed the writ petition filed by appellant and in consequence upheld the award dated 21.8.2001 passed by labour court, Udaipur in Case No.5/97. 3. So the question that arises for consideration in this writ-appeal is whether the learned Single Judge was justified in dismissing the appellant's writ petition and in consequence justified in upholding the award of labour court. 2 4. Having heard learned counsel for the appellant and having perused record of the case, we find no merit in the appeal and hence, it merits dismissal. 5. It is an appeal arising out of an order passed by writ court under Article 226/227 of the Constitution of India upholding an award dated 21.08.2001, passed by Labour Court, Udaipur in case No.5/97, whereby the Labour Court was pleased to answer the reference made under Section 10 of the Industrial Disputes Act (for short called “The Act”) in favour of respondent by directing the employer (appellant) to pay a sum of Rs.26,000/- as compensation in lieu of his reinstatement in service. So far as respondent (employee) is concerned, he did not challenge that part of an award which declines to him reinstatement in service. In this view of the matter, it is not necessary to examine that part of direction in this writ at the instance of appellant (State / employer). 6. As observed supra, consequent upon the termination of respondent who was working as an employee in State Services, an industrial reference under section 10 of the Act was made to Labour Court to decide the legality of his termination order. Parties adduced evidence. It was, however, concluded on facts and evidence by the Labour Court that respondent has worked continuously for more than 240 days in one calendar year i.e. worked for 12 years, that no charge-sheet or any departmental inquiry was held prior to his termination, that no notice as contemplated by section 25- FF ibid and retrenchment compensation was paid by appellant (employer) prior to impugned termination, and therefore, it 3 was a case of dismissal without any basis or charge. However, Labur Court awarded Rs.26,000/- to respondent by way of compensation payable by appellant in lieu of reinstatement in service. This award was challenged by appellant by filing a writ. The learned Single Judge dismissed the writ petition and upheld the award. It is against this order, the appellant has felt aggrieved and filed this appeal. 7. Learned counsel for the appellant (employer – State) was unable to point out to us any mistake of law or fact in the impugned award, in so far as the aforementioned findings of facts are concerned. These findings are the only findings which need to be rendered on facts and evidence while answering the reference made by State to Labour Court. Indeed, in order to attract the provisions of Labour Laws, these are the only issues which need to be examined on facts on both sides. As observed supra, if the termination of an employee is based on no charge and inquiry and when it is not by way of punishment, then it becomes a case of illegal retrenchment. If it is proved on facts that an employee has continuously worked for more than 240 days in one calendar year then he is entitled to have the protection of Labour Laws provided the employer is an Industry as recognized under Labour Laws. 8. It is not in dispute that appellant is a State and subjected to Labour Laws and therefore, an Industrial Reference was validly made to Labour Court for adjudication of termination order under section 10 ibid. 4 9. Learned counsel for the appellant contended that respondent did not work continuously for more than 240 days. We find no merit in this submission. Firstly, it is admitted by the appellant that respondent has been working in the establishment of appellant. Secondly, it is again a question of fact and once it was gone into on facts before the Labour Court against the appellant and upheld by writ Court, then the same can not be gone into in appeal. Lastly, even on facts and evidence, this finding is unassailable calling no interference in writ jurisdiction. Similarly, the respondent has discharged his initial burden by proving the fact that he has worked continuously for more than 240 days in one calendar year. In fact, it is held that he worked for 12 years. 10. In our opinion, therefore, the direction to pay a sum of Rs.26,000/- in lieu of his reinstatement in service passed by Labour Court and upheld by writ court is just, reasonable and proper. 11. Learned counsel for the appellant did not raise any other plea on facts or in law either before the labour court or in this court except what is taken note of supra. In the absence of any factual and legal foundation, it is not possible even otherwise to entertain any other arguments except what was sought to be urged. 12. In view of aforesaid discussion the appeal fails and is dismissed. [Dinesh Maheshwari], J. [A.M. Sapre],J. /Anil/