SBCWP NO.3596/97. SBCWP NO.314/98. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R 1) S.B. CIVIL WRIT PETITION No.3596/1997. Rajasthan State Text Book Board Versus Shri Kajod Mal & Anr. 2) S.B. CIVIL WRIT PETITION No.314/1998. Rajasthan State Text Book Board Versus Panchu Ram & Ors. Date of Order:- February 18, 2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri A.K. Jaiman for the petitioner. Shri J.K. Yadav for the respondents. ***** BY THE COURT:- In both the writ petitions, award passed by the labour court on 23/10/1996 directing reinstatement of the respondent- workmen with full back wages and continuity in service, is under challenge. 2) Respondents-workmen were engaged by the petitioner on consolidated wages of Rs.400/- per month to discharge the duties of SBCWP NO.3596/97. SBCWP NO.314/98. 2 Gardener. Their services were discontinued from 31/1/1989. Reference was made by the appropriate government on the question whether termination of their services by the petitioner was illegal and valid, and if not, what relief are they entitled to? Labour court in both the cases declared action of the petitioner in terminating their services w.e.f. 31/1/1989 illegal and held them entitled to reinstatement with continuity in service with full back wages. It was directed that they would be entitled for salary at the prevalent rate. 3) Learned counsel for the petitioner has argued that the labour court was wholly unjustified in rejecting argument that respondents were engaged on contract basis. Learned counsel in this regard referred to the document Exh.M/1, extract of which, mentioned in para 11 of the award is that Secretary of the Rajasthan Text Board in that communication clearly stated that the respondents-workmen were engaged on contract basis for plantation of trees and watering the plants etc. on payment of consolidated salary of Rs.400/- per SBCWP NO.3596/97. SBCWP NO.314/98. 3 month initially for a period of three months which period was lateron extended. Copy of this letter was endorsed to both the workmen. Labour court was therefore not justified in concluding that this was a unilateral decision on the part of the petitioner and that the respondents-workmen had not consented to their appointment being contractual in nature. Learned counsel submitted that nature of appointment was fully accepted by the workmen without any objection or murmur. Workmen did not produce any evidence to show that they were engaged on regular basis or that their appointment was not on contract basis. Learned counsel further submitted that there was absolutely no justification for directing reinstatement of the respondents because their services were terminated on 31/1/1989 and they were not engaged on any sanctioned regular post and that award was passed on 23/10/1996. Counting from the date, now more than 21 years have gone by then therefore, also, there was no justification to now require the petitioner to reinstate. In any case, it is submitted by the learned counsel for petitioner that one of SBCWP NO.3596/97. SBCWP NO.314/98. 4 the workmen, Shri Panchu Ram (in SBCWP No.314/98) has expired. 4) Learned counsel for the respondents has opposed the writ petition and submitted that labour court on the basis of the evidence led before it categorically held that mere writing of the word “contract” in the communication sent by the Secretary would not make their employment contractual. This was only a camouflage to deprive the workmen of their legitimate entitlements. Labour court in this connection relied on decided case law. Learned counsel further submitted that provisions of exception clause of Section 2 (oo)(bb) of the Industrial Disputes Act, 1947 cannot be so as to describe appointment contractual only with a view to depriving the workmen of their legitimate claim. Labour court was justified in its observation that compliance of mandatory provisions of Section 25F of the Act of 1947 was not made and therefore Labour Court was justified in directing reinstatement of the workmen with continuity. SBCWP NO.3596/97. SBCWP NO.314/98. 5 5) Upon hearing the learned counsel for parties and perusing the impugned-order, I find that labour court although noted the conditions of Exh.M/1 by which, it was claimed that respondents workmen were engaged on contract basis but it was of the view that merely by use the word “contract”, it would not take away the termination of the respondents out of the purview of reinstatement described under Section 2(oo) (bb) of the Act of 1947. Labour court has held that this cannot be said to be a contract in terms of provisions contained in the Indian Contract Act where consent of both the parties is a necessary ingredient. Management has cleverly used the word “contract” to deny the respondents-workmen their legitimate rights. In this respect, labour court rightly relied on the judgment of Madhya Pradesh High Court in Ramkishan Vs. Samrat Ashok Technical Institute Vidisha : LLJ 1995(1) 944. Labour court also found from the statement of Dr.Keshav produced by the petitioner management that they did not prepare any seniority list prior to discontinuation of SBCWP NO.3596/97. SBCWP NO.314/98. 6 service of the respondents and that there was also evidence to the effect that after terminating their services, new workmen were engaged. Labour court therefore held that provisions of Sections 25F and 25G were also violated. But at the same time, it has to be appreciated that termination of services of the workmen was made way back on 31/1/1989. One of the respondents Shri Panchu Ram has during the pendency of the writ petition has died. With respect to remaining respondent Kajod Mal, it is not considered appropriate now at this distance of time to require the petitioner-Board to reinstate him in service. Labour court although sought to balance the equity by awarding only Rs.1000/- p.a. towards back wages of seven years' preceding date of the award but now that further period of 14 years has gone by from the date when the award was passed, it is considered appropriate that instead of requiring the petitioner to reinstate workmen-Shri Kaojd Mal and for late Shri Panchu Ram, to pay his entire back wages to his legal heirs, each of the workman i.e. Shri Kajod Mal and legal heirs of late Shri SBCWP NO.3596/97. SBCWP NO.314/98. 7 Panchu Ram be entitled to receive Rs.1,00,000/- which shall be paid by the petitioner in lieu of their reinstatement as lump-sum compensation for full and final settlement of their respective claim. 6) Compliance of the judgment shall be made within a period of three months from the date copy of this judgment is produced before the petitioner. (MOHAMMAD RAFIQ), J. anil