SBCWP2620/1997 // 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN 1. S.B. Civil Writ Petition No.2620/1997 Deepak Rajpuriya & Gopal Singh Vs. The Judge, Labour Court, Ajmer and the Principal Mayo College, Ajmer, Rajasthan 2. S.B. Civil Writ Petition No.6187/1997 Nathu Singh Vs. The Judge, Labour Court, Ajmer and Others Date of Order ::: 09.02.2010 Present Hon'ble Mr. Justice Mohammad Rafiq Shri Vigyan Shah and Shri Sunil Samdariya, Counsel for petitioners Shri Manu Bhargava, Counsel for respondents #### //Reportable// By the Court:- Heard learned counsel for parties. These two writ petitions were heard together because challenge therein is to two different Awards passed by learned Labour Court, Ajmer, though at the instance of different workmen, but against same employer, namely, Mayo College, Ajmer. In first case i.e. SB Civil Writ Petition No.2620/1997, two workmen, namely, Deepak Rajpuriya and Gopal Singh, have assailed Award dated 22.02.1997, and in second case i.e. SB Civil Writ Petition No.6187/1997 petitioner Nathu Singh has challenged Award dated SBCWP2620/1997 // 2 // 29.04.1997. In both cases, petitioners were engaged in Wood & Metal Workshop of respondent Mayo College, Ajmer, by same person, namely, Shri M.L. Sharma, and the Awards have been rendered by learned Labour Court, Ajmer, recording similar findings answering the reference on industrial dispute made by the Government in respective cases, holding that there was no violation of Section 25-F of the Industrial Disputes Act, 1947 (for short, 'the ID Act'). Learned counsel for petitioners have argued that learned Labour Court in both the cases has misdirected itself in answering the reference made to it as if the petitioners were seeking regularization of their services whereas the case before the learned Labour Court was whether termination of services of the petitioners by respondent was made in violation of Section 25-F, 25-G and 25-H of the ID Act. Shri Vigyan Shah, learned counsel for petitioners in the first case, argued that the learned Labour Court has utterly failed to consider the provisions of Section 2 (oo)(bb), the exception clause with respect to contractual employment, wherein the termination of services would not be treated as retrenchment. It is contended that there was no evidence whatsoever SBCWP2620/1997 // 3 // produced by the respondnet that engagement of petitioners was made on contract basis or that they were appointed in a project. No such evidence was produced by the respondent so as to attract the aforesaid provision. Learned counsel, in support of his argument, relied on the judgment of the Supreme Court in S.M. Nilajkar and Others Vs. Telecoms District Manager, Karnataka – (2003) 4 SCC 27 and in particular referred to observations made by the Supreme Court in Para 13 and 14 thereof and argued that burden of proof to show that it was a project work and that the petitioners were contractual employees was upon the employer i.e. the respondent herein, and that mere fact that petitioners were engaged as daily-wager does not lead to conclusion that their engagement was on contractual basis. Learned counsel submitted that persons, who were engaged after the petitioners, namely, Bhanwar Lal, Ram Swaroop, Nohar, Parasram and Ashok were subsequently regularized in service and certain others persons, who were engaged after his termination. Reference was made to case of one Jaswant Kumar, who was engaged after their termination and was regularized. Learned counsel also relied on the judgment of the Supreme Court in State of Haryana Vs. Dilbagh Singh – 2006 (8) Supreme SBCWP2620/1997 // 4 // 469, to argue that if court finds that a person junior to a workman is still working in management, the workman in such case would be entitled to reinstatement. Shri Sunil Samdaria, learned counsel for petitioner in second writ petition, argued that petitioner Nathu Singh was also never engaged on contractual basis. Learned counsel submitted that one witness produced by respondent, namely, Shri M.L. Sharma, when specifically asked in cross-examination, stated that record of the project was maintained by way of muster rolls and such record was available in the record room and was not with him. Learned counsel also referred to the statement of Manager Shri Sajjan Singh Rathore, who, in his cross-examination, expressed lack of knowledge as to the existence of the record or the fact whether the muster rolls were available in the record room or not. He also stated that he had not seen the record himself. He admitted that Bhanwar Lal, Ram Swaroop, Nohar, Parasram, Ashok etc., who were mentioned in Exhibit M-4, were still working as carpenter with the management. He further stated that, according to him, petitioner workman Nathu Singh would also have been regularized in service if he had continued. Learned counsel submitted that petitioner made a specific SBCWP2620/1997 // 5 // application on 11.11.1996, which is available on record as Annexure-3 with present writ petition, before the learned Labour Court to summon the records relating to above referred workmen, who were engaged after the petitioner, and were not removed from service and were made permanent. In the application, the record relating to muster- rolls of the months of November, 1985 to September, 1993, were also requisitioned and prayer was made for summong the record relating to the alleged project of which reference was made in reply to the statement of claim. No reply was filed to such application. Despite the learned Labour Court having passed specific order, such record was never produced. Learned Labour Court ought to have therefore drawn an adverse inference against the respondent. The learned counsel submitted that what was required to be answered by the Labour Court on the reference was whether there was violation of provisions of Sections 25-F, 25-G and 25-H of the ID Act. The learned Labour Court misconstrued and misapplied the provisions of law by holding that since there was no sanctioned post, the petitioners could not be directed to be reinstated. The learned Labour Court did not specifically answer the question of violation of Sections 25-F, 25-G and 25-H of SBCWP2620/1997 // 6 // the ID Act and left those questions undecided. Per contra, Shri Manu Bhargava, learned counsel for respondents, opposed the writ petition and submitted that the petitioners were engaged in a project of maintenance of old building of Mayo College. Referring from the statement of workman Deepak Rajpuriya, learned counsel submitted that he was subjected to cross-examination, and therein he admitted that when he was initially engaged with the respondents, the work was going on with them on different projects. He was engaged for the work of welding. Learned counsel also referred to the statement of workman Gopal Singh and submitted that he also in his cross-examination admitted that they were engaged when the work of repair of the quarters etc. was going on. The learned counsel submitted that their witness Shri M.L. Sharma, in his statement, clearly stated that the project work was almost complete by June, 1993 and the workers engaged on daily wages were discontinued. The metal department was such department where regular work was not available. The learned counsel for the respondent further submitted that Jaswant Singh, of whom reference is given, was in fact engaged in another Department, namely, Carpentry Department, by order dated 25.11.1994 with effect from SBCWP2620/1997 // 7 // 01.11.1994 as would be apparent from Annexure-6 filed with the writ petition of Nathu Singh, and this fact has been stated by Shri M.L. Sharma also in his cross-examination. Learned counsel relied on the judgment of the Supreme Court in Rajasthan Tourism Development Corporation Limited & Another Vs. Intejam Ali Zafri – (2006) 6 SCC 275, and argued that therein it was held that Section 25-F of the ID Act would not be applicable in the case of termination of service of workman when his initial appointment was itself void. Learned counsel also cited judgment of the Supreme Court in State of Rajasthan Vs. Sarjeet Singh and Another – (2006) 8 SCC 508, to argue that where the appointment for a fixed term is scheme-based, which is followed by further appointment for fixed term, the appointment could be continued only till the scheme was completed and once the scheme was over the appointment was bound to come to an end. It was a situation wherein exception clause of retrenchment contained in Section 2(oo)(bb) of the ID Act would be attracted. Learned counsel for respondents, in support of his submissions, also relied on the judgment dated 17.11.2005 delivered by a Coordinate Bench of this Court in S.B. Civil Writ Petition No.6649/1997 – Mohan Singh & Others Vs. The SBCWP2620/1997 // 8 // Judge, Labour Court, Ajmer & Others. It was, therefore, submitted that the Awards passed in both the cases by learned Labour Court are perfectly legal and valid and do not call for any interference by this Court. I have given my anxious consideration to the rival submissions and perused the entire record. Although, it may be a fact that witness Shri M.L. Sharma, produced by respondent in both the cases, vaguely stated about engagement of petitioners in a particular project but he could neither name the project nor could produce the record showing as to when the project started and when it came to an end. He has simply stated that work of the project came to an end in June, 1993, and that the Metal Department is such a Department where regular work is not available. In this connection, it is significant to notice that petitioner Nathu Singh made a specific application before the Labour Court on 11.01.1996 and has asserted in Para 11 of the writ petition that the learned Labour Court on that application directed the respondent to produce the document which averment has not been denied by the respondent. But neither any document was produced nor reply to said application was filed. The judgment of the SBCWP2620/1997 // 9 // Supreme Court in Rajasthan Tourism Developmnet Corporation Limited v. Intejam Ali Zafri (supra), on which reliance was placed by the learned counsel for the respondent, was rendered in a fact situation where neither Labour Court called for any record nor workman moved application for summoning the record. In the present matter, the situation is different where the workman made application and order was passed by the learned Labour Court to summon the record but the respondent failed to produce the record. In the judgment rendered in S.M. Nilajkar and Others v. Telecom District Manager, Karnataka (supra) the Supreme Court dealt with the law on the question of applicability of sub- clause (bb) of Section 2(oo) as to attract applicability of this exception clause. The discussions made in Para 13 and 14 are relevant which are reproduced here as under:- “13. The termination of service of a workman engaged in a scheme or project may not amount to retrenchment within the meaning of sub-clause (bb) subject to the following conditions being satisfied :- (i) that the workman was employed in a project or scheme of temporary duration; (ii) the employment was on a contract, and not as a daily-wager simplicitor, which provided inter alia that the employment shall come to an end on the expiry of the scheme or project; and (iii) the employment came to an end simultaneously with the termination of SBCWP2620/1997 // 10 // the scheme or project and consistently with the terms of the contract. (iv) the workman ought to have been apprised or made aware of the abovesaid terms by the employer at the commencement of employment. 14. The engagement of a workman as a daily-wager does not by itself amount to putting the workman on notice that he was being engaged in a scheme or project which was to last only for a particular length of time or up to the occurrence of some event, and therefore, the workman ought to know that his employment was short-lived. The contract of employment consciously entered into by the workman with the employer would result in a notice to the workman on the date of the commencement of the employment itself that his employment was short-lived and as per the terms of the contract the same was liable to termination on the expiry of the contract and the scheme or project coming to an end. The workman may not therefore complain that by the act of employer his employment was coming to an abrupt termination. To exclude the termination of a scheme or project employee from the definition of retrenchment it is for the employer to prove the abovesaid ingredients so as to attract the applicability of sub-clause (bb) abovesaid. In the case at hand, the respondent-employer has failed in alleging and proving the ingredients of sub-clause (bb), as stated hereinabove. All that has been proved is that the appellants were engaged as casual workers or daily-wagers in a project. For want of proof attracting applicability of sub-clause (bb), it has to be held that the termination of the services of the appellants amounted to retrenchment.” It would be evident from the above discussion that to exclude the termination of services of scheme or project employee from the definition of retrenchment, it is for the SBCWP2620/1997 // 11 // employer to prove above said ingredients so as to attract the applicability of sub-clause (bb) of Section 2(oo) aforesaid. Burden of proof thus lies on the employer if he wanted to exclude the termination from the purview of retrenchment. In the present case, an attempt has been made by the respondent to describe the appointment of petitioners as contractual in nature. In my considered view, the Labour Court, however, was wholly unjustified in accepting such plea of the respondent that since the petitioners were on daily wages and, therefore, they should be taken to have been engaged in a scheme or project. As observed by the Supreme Court in S.M. Nilajkar v. Telecom District Manager (supra), an engagement of workman on daily wages does not by itself amount to putting the workman on notice that he was being engaged in a scheme or project. Moreover, reading of both the Awards passed in these cases makes it apparent that the learned Labour Court was belabouring under the impression as if the petitioners were claiming regularization of service, whereas what was referred to it as industrial dispute was the question whether termination of services of the petitioners by the respondnet was valid or not and if not what relief they are entitled to. The learned Labour Court has indeed not rendered any SBCWP2620/1997 // 12 // finding on the question of violation of Section 25-F, 25-G and 25-H of the ID Act and has left those issues undecided. On evidence that was adduced before the learned Labour Court, the respondents have not been able to effectively rebut and disprove the fact as to engagement of petitioners and their continuity for duration of more than 240 days with them in a calendar year preceding the date of their retrenchment. Though the respondents set up a plea that their engagement was in a project and they were removed or discontinued when the project came to an end. But in doing so, they do not deny the factum of their continuity for more than 240 days in a calendar year preceding the date of their retrenchment. At the same time, they have also not been able to prove name, nature and duration of the so called project. Mere engagement of the petitioners on daily wage basis does not lead to inference that they were engaged in a project. Violation of Section 25-F of the ID Act was thus writ large on the evidence produced before the Labour Court. Coming now to the question as to what relief can be granted to the petitioners when the alleged termination in the present case took place in the first case in October, 1993 and SBCWP2620/1997 // 13 // 16.12.1993 respectively of the petitioners No.1 and 2 and in second case on 10.08.1993. The plea that since the initial appointment of the petitioners was void and, therefore, they cannot be held entitled to any benefit, cannot be accepted because no such plea was set up by the respondent before the Labour Court; all that they submitted was that the Principal of the respondent College was competent authority. They did not deny the fact that M.L. Sharma was Incharge of Wood & Metal Workshop and M.L. Sharma in his statement clearly admitted that it was he who engaged the workmen. Respondent management did not disown M.L. Sharma, rather produced him as witness on their behalf. The said plea therefore cannot be accepted. Requiring the Respondent now to reinstate the petitioners at this distance of time i.e. after 17 years, may not be justified. However, keeping in view the length of this time and over all facts, and the fact as to the amount of wages which the petitioners would have otherwise received, even according to minimum wages applicable in the State of Rajasthan if they continued to serve the respondents, it is considered just and proper to suitably modify the Awards by directing the respondent management, instead of reinstating the SBCWP2620/1997 // 14 // petitioners, to pay to each of them a sum of Rs.1,00,000/- as lump sum compensation in lieu of reinstatement in service, which amount shall be paid to them within a period of three months from the date a copy of this judgment is produced before the respondents. The writ petitions are allowed, as indicated above. (Mohammad Rafiq) J. //Jaiman//