SBCWP NO.968/2002. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.968/2002. Regional Manager, Rajasthan State Seeds Corporation Ltd. Kota. Vs. Girja Shankar and ors. Date of Order :- 3/7/2008. HON’BLE MR.JUSTICE MOHAMMAD RAFIQ Shri J.K. Singhi for the petitioner. Shri Deepak Goyal for the respondent-workmen. **** BY THE COURT:- This writ petition has been preferred by the Rajasthan State Seeds Corporation Ltd. Kota against the award of the Labour Court Kota dated 21/6/2001 whereby retrenchment of the respondent-workmen by the Management of the petitioner vide order dated 23/7/1991 has been held to be illegal and they have been held entitled to reinstatement with continuity in service with 25% of the backwages. 2) Learned counsel for petitioner has argued that respondent-workmen could not establish before the Labour Court that they had actually worked for 240 days in a calendar year immediately preceding from the date of retrenchment and that the learned labour court erred in law in holding that there was violation of Section 25F of the Industrial Disputes Act, 1947 (for short, the "Act of 1947") because SBCWP NO.968/2002. 2 workmen worked for 240 days from October 1988 to September, 1989. It was argued that burden of proof was on the workmen to show that they worked for more than 240 days in a calendar year before the date of their retrenchment i.e. 23/7/1991. It was argued that Birdi Lal-respondent-workman No.2 was initially appointed on 1/1/1985 whereas Girja Shankar respondent-workman No.1 was appointed on 1/1/1987 therefore even if what is contended by the respondent-workmen is accepted, their work was for a very short duration. Therefore, there was no question of directing their reinstatement with continuity in service with 25% backwages. Learned counsel for the petitioner submitted that the burden of proof lies on the workmen to prove that they actually worked continuously for 240 days in preceding year of their alleged date of retrenchment. 3) Learned counsel for the petitioner relied on the judgments of Supreme Court in Surendra Nagar District Panchayat Vs. Dahyabhai Amar Singh : (2005)8 SCC 750, Bhogpur Cooperative Sugar Mills Ltd. Vs. Harmesh Kumar : 2006(13) SCC 28 and Municipal Corporation Faridabad Vs. Sri Niwas : 2004(8) SCC 195. He submitted that writ petition be allowed and award of the learned labour court may be set-aside. 4) Shri Deepak Goyal, learned counsel for respondent-workmen opposed the writ petition and submitted that respondent-workmen very much worked with the petitioner continuously from the date of SBCWP NO.968/2002. 3 their initial appointment. While Birdi Lal, respondent No.2 was initially engaged on 1/1/1985, Girja Shankar, respondent No.1 was engaged initially on 1/1/1987. They were continuously working with their employer i.e. petitioner- management but the employer-petitioner declined to accept them on duty on 23/7/1991. They thereafter also went to attend duties but not allowed. It was argued that in fact, the respondent-workmen have worked much more than 240 days in a calendar year and they had also produced before the labour court details of their working during 1986 to 1989. None of the workmen were given notice or notice pay nor they were paid compensation as required by Section 25F of the Act of 1947 before retrenchment. When the workmen had proved their working for 240 days in each of the calendar year, it was for the management to disprove the same. On the contrary, their witness Shri Shantiverdhan Mathur admitted in his cross-examination that Birdi Lal worked for more than 252 days and Girja Shankar 240 days, from October 1988 to September 1989 and the learned labour court rightly on that basis held that there was violation of Section 25F of the Act of 1947 because if number of Holidays are added to such number of aforesaid days, it would exceed even 240 days. Admittedly, Birdi Lal worked for 240 days and similarly Girja Shankar has also worked for 240 days. Learned counsel argued that award of the labour court was justified and does not need interference. Shri Deepak Goyal, learned counsel SBCWP NO.968/2002. 4 for the respodnents-workmen alternatively argued that in case this Court holds that direction of reinstatement of the workmen in the award passed on 25/6/2001 is in relation to a matter where retrenchment was made on 23/7/1991 and now when the writ petition was decided in 2008 was not justified, the Court may consider granting him lumpsum compensation in lieu of reinstatement. In support of his argument, learned counsel for the respondent-workmen relied on the judgment of this Court in Vikas Adhikari Vs. Judge Labour Court : 2007(1) WLC 474. 5) On consideration of the arguments aforesaid and the impugned-award as also the material forming part of the record and the cited precedents, I find that the labour court after a detailed discussion, passed the award recording a finding that respondent-workmen had been in the employment of the management from the date of their initial appointment till their retrenchment. However, the labour court in para 8 of the award has noticed admission by witness of the management Shri Shantiverdhan Mathur who stated that respondent- workmen Girja Shankar worked for 252 days from October, 1988 to September 1989 and for the same period, Birdhi Lal worked with petitioner for 225 days. Labour court relying on the judgment of Supreme Court in Workman of American, E.I.B.C. Vs. Management of America, E.I.B.C. : AIR 1996 SC 258 while dealing with the weekly holidays and such number of days of holiday, held that workmen would SBCWP NO.968/2002. 5 have benefit of Section 25F. Learned labour court ought to have analysed or discussed the evidence that was led by the workmen on the question of their working upto 23/7/1991 to decide whether on that basis that compliance of Sectino 25F was not made by the petitioner-employer. What is being contended by the learned counsel for the petitioner is that if at all the court examined the aspect of Section 25F, that could be based on the working of 240 days in the calendar year immediately preceding the date of retrenchment and not for such work in any year there before. Though the award of the labour court may be lacking on that aspect but then the scenerio that emerges upon examination of submission would be that evidence was led by the workmen on the basis of their working for the subsequent period has remained completely unconsidered by the Labour Court and then the question would also arise, how far, the workmen were able to discharge their burden and then whether the management also would not be required to show in rebuttal that workmen did not at all work with them beyond September, 1989. In normal course, this would justify remand of the matter if eventually the argument of Shri J.K. Singhi, learned counsel for the petitioner is accepted. Looking however to the fact that this matter has remained pending litigation since 1993 when reference was made to the Judge Labour Court by the appropriate government and there before when respondent-workmen were removed on 23/7/1991 and SBCWP NO.968/2002. 6 which according to the petitioner would be 1999. It would not be therefore in the interest of justice to remand the matter at such a belated stage particularly when the ends of justice would be met if the alternative argument of the learned counsel for the respondent-workmen is accepted. 6) I therefore keeping in view the fact that retrenchment of the respondent-workmen was made as far as back as 23/7/1991 and now the writ petition is being decided after more than 17 years, it is considered appropriate to modify the award of the labour court dated 21/6/2001. 7) In the result, the writ petition is allowed in part. The petitioner-management is directed to pay a sum of Rs.50,000/- as lumpsum compensation in lieu of retrenchment to each of the respondent-workmen i.e. respondents No.1 and 2. Compliance of the judgment be made within three months from the date copy of this order is received by the petitioner. (MOHAMMAD RAFIQ), J. anil SBCWP NO.968/2002. 7 S.B. CIVIL MISC.STAY APPLICATION NO.761/2002. IN S.B. CIVIL WRIT PETITION NO.968/2002. Regional Manager, Rajasthan State Seeds Corporation Ltd. Kota Vs. Girja Shankar and ors. Date of Order :- 3/7/2008. HON’BLE MR.JUSTICE MOHAMMAD RAFIQ Shri J.K. Singhi for the applicant-petitioner. Shri Deepak Goyal for the respondent-workmen. **** Consequent upon disposal of the main petition, this stay application does not survive and the same is accordingly dismissed. (MOHAMMAD RAFIQ), J. anil