1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.2721/1997 Municipal Board, Neemka Thana vs. Bhinva Ram Yadav & Anr. Date of order : 24/9/2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri K.N. Gupta for the petitioner. Shri Ajay Gupta for the respondent. ****** This writ petition has been filed by the Municipal Board, Neem Ka Thana challenging the ex-parte award dated 27.3.1995 by which the retrenchment of the respondent-workman Bhinva Ram Yadav was held to be illegal and he was directed to be reinstated in service with continuity and full back wages. The petitioner has also challenged the order dated 25.2.1997 by which their application for setting aside the aforesaid ex-parte award was rejected. Shri K.N. Gupta, learned counsel for the petitioner has argued that the learned Labour Court erred in law in holding that there was violation of Section 25-F of the Industrial Disputes Act particularly when no specific date of retrenchment was given in terms of the reference. It was contended that appointment of the respondent as Sub- Nakedar could not have been made because the requirement of rules is that five times names of the number of vacancies have to be requisitioned from the employment exchange. 2 In any case, the respondent was engaged on daily wage basis. Even if his assertion that he was appointed as Sub-Nakedar on daily wage basis is accepted, then also the learned Labour Court has erred in law by directing his reinstatement because the octroi for collection of which, Sub-Nakedars are engaged, was itself abolished by notification of the Government with effect from 31.7.1998. Learned counsel submitted that the proceedings of the Labour Court were fixed to be held at Camp Court, Sikar and for that purpose the learned Presiding Officer normally used to hold the Court at P.W.D. Dak Bunglow at Sikar but on 27.3.1995 when the award was passed, the learned Presiding Officer held the sitting in Chamber of the District Judge, Sikar and the representative of the petitioner remained unaware of the same and he waited for the whole day at Dak Bunglow. It was only when he came to know about the passing of the award, that the application for setting aside the ex-parte award was filed. The learned Labour Court rejected the application without any justification. Learned counsel alternatively prayed that the ex-parte award be set aside and the matter be remanded back to the Labour Court for fresh adjudication. Shri Ajay Gupta, learned counsel for the respondent-workman opposed the writ petition and submitted that there was no 3 justification for the absence of the petitioner on the appointed day. When there was absence from proceedings, there was all the justification for the Presiding Officer to have passed the award. The application for setting aside the ex-parte award has been rejected by detailed and speaking order. This application was filed with much delay as while the award was passed on 27.3.1995, application was not moved within the prescribed limitation of 30 days. Learned counsel submitted that when compliance of provisions of Section 25-F of the Industrial Disputes Act was not made, only consequence thereof would be the direction of reinstatement with full back wages and continuity in service. Learned counsel in support of his arguments relied on the judgement of Supreme Court in Ramesh Kumar vs. State of Haryana-(2010) 2 SCC 543. I have given my anxious consideration to rival submissions and perused the material on record. The petitioner has although assailed the award as also the order rejecting application for setting aside the ex-parte award, but he has not given any justification why the compliance of Section 25-F was not made inasmuch as in reply to the statement of claim also they have not been able to justify as to why compliance of that provision was not made. Even if on account of some confusion on the part of the 4 representative of the petitioner, the matter went unattended on his behalf, acceptance of alternative prayer for remanding the matter for that reason at this belated stage, may not be justified because now after lapsed of more than two decades, it would be very difficult for either of the parties, especially for the workman to arrange for the evidence to be produced. But, at the same time, it is to be appreciated that even if the matter is remanded, it is not clear as to on what plea the petitioner would be adducing the evidence to show justification and non compliance of Section 25-F. However, at the same time, this Court cannot loose sight of the fact that the respondent was working on daily wage basis and judicial cognizance has to be taken of the fact that collection of octroi has been abolished with effect from 31.7.1995. If as per own showing of the respondent, he was engaged on daily wage basis as Sub-Nakedar, his reinstatement at this stage cannot be ordered especially when the post of this nature has been abolished in all the Municipalities. Now when more than 20 years have passed from the date of his termination, otherwise also, in totality of circumstances, ends of justice would be met if the direction of reinstatement with continuity of service is substituted by requiring the petitioner Municipal Board to pay an amount of Rs.1,00,000/- to the respondent-workman in 5 lieu of lump sum compensation to settle all his claim, which amount shall be paid to the respondent-workman by the petitioner within three months from the date copy of this judgement is received or produced before them. The writ petition is accordingly allowed in part with no order as to costs. (MOHAMMAD RAFIQ), J. RS/