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.353/2010 STATE OF RAJASTHAN VS. SOMA RAM Date of Judgment : 22.11.2010 HON'BLE MR. JUSTICE A.M. SAPRE HON'BLE MR. JUSTICE C.M. TOTLA Mr. R.K. Soni, Govt. Counsel, 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.3261/1995 under Rule 134 of the Rajasthan High Court Rules, 1952 against an order dated 10.8.2007 passed by the Single Judge in the aforementioned writ petition. 2. By impugned order, the learned Single Judge dismissed the writ petition filed by the appellant and in consequence upheld the award dated 22.9.1994 passed by the Labour Court, Jodhpur in Case No.58/1990. 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 22.9.1994, passed by the Labour Court, Jodhpur in case No.58/1990, 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 reinstatement of the workman in service with all consequential benefits. 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 the respondent has worked continuously for more than 240 days in one calendar year, 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 therefore, it was a case of dismissal without any basis or charge. 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 3 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 the 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. 9. Learned counsel for the appellant contended that the 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 4 discharged his initial burden by proving the fact that he has worked continuously for more than 240 days in one calendar year. Even the question as to whether the respondent was a workman or not was not at all raised by the employer before the labour court. 10. Learned counsel for the appellant (State) then contented that the appointment of respondent (workman) was made for a particular duration and was made for one project. It was contended that no sooner the project in question for which respondent (workman) was appointed was over, his services were dispensed with. It was, therefore, urged that such appointment being in the nature of contractual and for a particular duration and work, no direction could be given against the State for reinstatement of the respondent. 11. We find no merit in this submission for more than one reason. In the first place, there was no factual foundation laid in the written statement before the labour court by the state to prove as what was the project, its nature, duration, persons employed for execution of such project, when it began, and when completed, cost of the project, action taken by the State in relation to other employees if appointed for such project like the respondent, whether their services were also dispensed with like the respondent or they or any one out of them were retained in the services, or transferred to some other department of State etc.? That apart, no documents in support of such factual plea were filed. In the absence of these material facts and the evidence, it is difficult to entertain this submission much less accepted. Not only this, 5 the appellant did not choose to file any documents before the writ Court or even before this Court. Under these circumstances and in this view of the matter, we cannot accept such plea at third stage of litigation. 12. In our opinion, therefore, the direction to reinstate the workman in service with all consequential benefits passed by the Labour Court and upheld by writ court is just, reasonable and proper. 13. Learned counsel for the appellant did not raise any other plea on facts or in law before the labour court or in this court except what is taken note of supra. 12. In view of aforesaid discussion the appeal fails and is dismissed in limine. [C.M. TOTLA], J. [A.M. SAPRE],J. /Anil/