CW 1818/96 [1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH S.B. Civil Writ Petition No.1818/96 Divisional Railway Manager, Western Railway, Kota Versus Judge, Industrial Tribunal [Central], Kota & Anr. DATE OF ORDER : 05/01/2010 HON'BLE MR. JUSTICE AJAY RASTOGI Ms. Sonal Singh for Mr. G.C. Garg, for petitioner None present for respondents *** Instant petition is directed against the award passed by Industrial Tribunal [Central], Kota dt.17th May, 1995 [Ann.8] whereby the alleged termination given effect to w.e.f. 1st April, 1979 was held to be arbitrary and violative of Sec.25F of the Act, 1947. As a consequence whereof, workman was entitled to be reinstated with continuity of service along with back wages. Respondent-workman when retrenched w.e.f. 1st April, 1979 while working as Casual Khalasi raised a dispute, which was referred by the appropriate government vide its notification dt.11th February, 1988, is reproduced as under: “Whether the action of the Divisional Railway Manager, Western Railway, Kota to retrench Shri Ram Charan w.e.f. 1.4.1979 is legal and justified? If not, to what relief workman is entitled to?” CW 1818/96 [2] In the statement of claim submitted by respondent-workman, it was alleged that he was engaged as Casual Khalasi initially from 29th March, 1974 and had worked upto 31st October, 1975. However, he was not allowed to continue any further. Thereafter, he was re-engaged as Casual Khalasi on 21st November, 1975 and intermittently worked in different spell, details of period during which he worked have been referred by him in his statement of claim and it has also been reproduced by learned Tribunal in Para 2 of its award that too discloses that he worked intermittently from 1976 to 1979. As regards last period during which he worked was from 1st December, 1978 to 31st March, 1979 and w.e.f. 1st April, 1979 he was not allowed to continue to work as Casual Khalasi. However, the period which was alleged by respondent-workman during which he worked from 29th March, 1974 to 31st October, 1975 has also been disputed by defendant-petitioner in their written statement and no contrary documentary evidence came on record in support thereof. Learned Tribunal finally recorded a finding that since the respondent-workman had worked for CW 1818/96 [3] more than 240 days during the period from 1974 to 1975 and even if he had worked, thereafter, intermittently upto 31st March, 1979, details of which have been referred to in Para 2 of the award. Petitioner was under an obligation to comply with Sec.25F of the Act, 1947. Since indisputably it was not complied with, action of petitioner was in violation of Sec.25F of the Act. As a consequence whereof, alleged retrenchment was declared to be bad in law and workman was directed to be reinstated with continuity of service along with back wages. Counsel for petitioner submits that reference was made in regard to his alleged termination which was given effect to from 1st April, 1979 and indisputably from the material came on record, workman had not worked for 240 days in preceding 12 months from the date of alleged termination, in regard to which reference was made by the appropriate government. In absence whereof, very finding recorded by Tribunal in holding their action to be violative of Sec.25F is wholly perverse and the same deserves to be set aside. CW 1818/96 [4] Counsel further submits that even finding recorded that respondent-workman had worked for more than 240 days during the period from 1974-75 that was also disputed in their written statement filed by petitioner before Tribunal and no contrary material came on record and onus being on the workman to prove that he had worked for more than 240 days during 1974-75. In absence whereof, the finding recorded being not supported by material on record before Tribunal and that too is wholly perverse and the same also deserves to be set aside. No one appeared on behalf of respondent despite opportunity being afforded. Even from the last order-sheet of this Court, no one has appeared on behalf of respondent. I have heard counsel for petitioner and also perused the material on record. Reference was made by the appropriate government examining the alleged termination given effect to from 1st April, 1979 and indisputably as per material came on record, the respondent-workman had not worked for 240 days in CW 1818/96 [5] preceding 12 months which was requirement for the employer to comply with Sec.25F of the Act. Respondent-workman was engaged as Casual Khalasi which clearly depicts that he was engaged as and when his services are required and his appointment as Casual Khalasi was purely on contractual basis and it is also borne out from the period of his working referred to in Para 2 of the award that too also clearly depicts that he had worked on casual/contract basis and as & when his services are required he was engaged by the employer. This Court finds substance in the submission made by Counsel for petitioner that respondent- workman had not worked for 240 days in preceding 12 months from the alleged date of termination, certainly Sec.25F cannot be attracted in the facts of instant case. As regards finding which has been recorded by Tribunal at one point of time that the period from 1974-75 the petitioner had worked for more than 240 days and if he has been allowed to continue even on casual basis, thereafter, intermittently upto 1979 still it was required to CW 1818/96 [6] comply with Sec.25F of the Act, in opinion of this Court, appears to be perverse and cannot be said to be legally sustainable. Apart from it, period of working for 240 days as referred to from 29th March, 1974 to 31st October, 1975 was also disputed by defendant- petitioner in their written statement filed before Tribunal. No contrary material came on record which could even substantiate about his working during the period for more than 240 days. In such circumstances, in opinion of this Court, the finding recorded by Tribunal even in this regard is not supported by any material on record and appears to be perverse. Consequently, writ petition stands allowed. Impugned award passed by Industrial Tribunal [Central], Kota dt.17th May, 1995 [Ann.8] is hereby quashed and set aside. No order as to costs. [AJAY RASTOGI], J. FRBOHRA1818CW96 5-1.doc