1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.336/2002. : : Manager, Shree Foods Vs. Laxman Singh & Anr. : : Date of Order 4.3.2009 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Mr. K.N.Gupta for the petitioner. Mr. Rajiv Bhandhu for the respondent (s). Heard learned counsel for the parties. 2. This writ petition has been filed by petitioner challenging the award passed by Labour Court cum Industrial Tribunal, Ajmer dated 31.8.2001. The Tribunal by the aforesaid award has declared reinstatement of respondent from service from 16.5.1994 and directed his reinstatement with continuity of service and further directed the petitioner to pay him subsistence allowance for the period from February 1994 till 15.5.1994 and thereafter salary for the period from 16.5.1994 till 30.5.1994 when he was removed and that the petitioner should grant leave to the respondents for the period from 19.5.1994 to 29.5.1994 and the salary of the petitioner should be paid of Rs.575/- per month and he 2 should be treated as regularised in service w.e.f. 2.6.1993. This Court by its order dated 20.5.2002 issued notices to the respondents to show cause this writ petition may not be heard, admitted and disposed of finally at the admission stage. On that date, the Court also passed an order staying operation and effect of the impugned award. 3. Learned counsel for the petitioner argued that according to the Clause 15 of the Certified Standing Order, the respondent was required to give application for leave of seven days in adverse if the period of leave was three days and more. The respondent remained absent from 19.5.1994 and without any application for grant of leave even and then he rejoined the services on 30.5.1994. He did not either submit any application nor gave explanation for his absence. He only orally told that he could not attend the duty on account of marriage of his sister-in-law. As per previous award dated 9.12.1993, the Labour Court had given finding that workers shall be treated as suspended w.e.f. 2.6.1993 and domestic enquiry shall be held. Domestic enquiry was initiated against the respondent-workman by treating him under suspension into charges of two memos of charge- sheet. The respondent-workman did not participate in 3 enquiry inspite of having receipt the communication. He was not paid subsistence allowance because he was gainfully employed elsewhere. Learned counsel submitted that burden of proof that the respondent is not in gainful employment was on the respondent-workman himself. Learned trial Court committed serious error while holding that application was not submitted in prescribed form. The statements of allegations, list of witnesses and all copies of documents were served upon the respondent-workman. The Enquiry Officer informed the respondent all the dates of enquiry proceedings held on 22.1.1995 and award. The Enquiry Officer submitted report on 9.5.1995 found the charges proved and it was thereafter the order of removal was passed. Learned counsel also submitted that even otherwise the factory in which the respondent-workman was engaged has been closed down two years ago and, therefore, he cannot now be reinstated with the petitioner. Award of Labour Court in so far as the direction of reinstatement in concerned, should be, therefore, set aside and if at all this Court upholds the findings on other issues, direction for payment of lump sum compensation in lieu of reinstatement may be passed. 4 4. Learned counsel for the respondent-workman opposed the writ petition and submitted that all the arguments, which the petitioner are raising are aimed at for re- appreciation of the evidence and this Court under its power of judicial review under Article 226 of the Constitution of India has to only see if the enquiry proceedings were not held in true compliance of the direction of earlier award dated 9.12.2003 and the award has attained finality therefore it cannot now be questioned. The domestic enquiry was to be conducted in terms of direction of that award the respondent being on duty right from 10.12.1993. Since the earlier award was not complied with and respondent was not paid wages for the period of suspension, he, therefore, approached the Payment of Wages Authority which on 12.5.1997 directed to recover the aforesaid amount from respondent-workman. The respondent-workman submitted his joining report pursuant to the said award on 24.1.1994 but partner of petitoner Mr. Harish Gupta refused to allow his joining and also refused to pay him arrears. It was subsequently that the petitioner by letter dated 4.5.1994 held the petitioner to attend the duties. Allegation of willful absence from 19.5.1994 are false. The petitioner did not properly maintain the leave records of the respondent-workman. Even after 5 submitting written application of leave, it was verbally sanctioned. It was argued that on account of non-payment of subsistence allowance, the defence of the respondent- workman was seriously prejudiced for which reason he could not properly arrange for defence and was unable to defend himself in the enquiry. The Labour Court was, therefore, perfectly justified in holding the enquiry proceedings as bad in law and also the petitioner guilty of unfair practice. 5. Having heard learned counsel for the parties and perused the award passed by Labour Court, I find that Labour Court on each of the issues has recorded very comprehensive finding and has come to hold that the petitioner did not pay subsistence allowance to the respondent-workman, but also did not maintain the leave records and deliberately delayed the enquiry proceedings. The Enquiry Officer has recorded findings much beyond the charges. The Disciplinary Authority has not recorded his independent conclusion on such charges and has agreed to conclusion recorded in report of the enquiry and thereupon was passed the order of termination retrospectively. All the findings are based on appreciation of evidence. Unless such findings recorded by the Labour Court are held to be 6 perverse no interference can be made. Unless the findings are such that no reasonable person of ordinary prudent would come to such a finding, this Court in normal circumstances would be loath to interference. However, at the same time, now both the learned counsel for the parties agrees that the petitioner has closed down the factory in which the respondent-workman was engaged, his reinstatement in service may not be justified and direction of the award of the Labour Court in that behalf is required to be modified. Having regard to the facts of the case and keeping in view that salary was being paid lessor of Rs.575/- per month to the respondent-workman, it is directed that the petitioner shall paid to the respondent-workman a sum of Rs.75,000/- in lieu of reinstatement, which shall fully satisfy his claim in the present dispute. This writ petition is accordingly allowed in part. (MOHAMMAD RAFIQ)J. A.Arora/- Item No.8.