1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.5114/2004. : : Babu Lal Vs. Labour Court No.2, Jaipur & Ors. : : Date of Order 25.9.2008 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Mr.M.F.Baig for the petitioner. Mr.S.S.Sharma, Govt. Counsel for the State. Heard learned counsel for the parties. 1. This writ petition seeks to challenge the award passed by the Labour Court dated 10.6.2003, whereby the reference made to it by the appropriate government, has been answered in the terms that the retrenchment of the petitioner was legal and valid, therefore, he is not entitled to any relief. 2. Shri M.F.Baig, learned counsel for the petitioner has argued that the Tribunal decided the matter on the basis of finding that the petitioner worked with the respondents between February, 1995 to January, 1996, which was proved only 221 days, but in doing, so the Tribunal has completely 2 ignored the law, according to which the petitioner would be entitled to at least weekly holidays, apart from other national/gazetted holidays. Learned counsel argued that the plea of the Management that the petitioner was working in a scheme was not accepted by the Labour Court and at the same time, their plea that the petitioner abandoned the services was also not accepted. Learned counsel cited the judgment of Supreme Court in American Express International Banking corporation Vs. Management of American Express International Banking Corporation: AIR 1986 SC 458, in which it was held that the actual working days does not mean those days only when the workman worked with hammer, sickle or pen, but must necessarily comprehend all those days during which he was in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute, standing orders etc. Thus, Sundays and other paid holidays should be taken into account as well. Relying on this, the same view was taken by the division bench in JDA & Anr. Vs. Mahesh Kumar & Anr. : DB Civil Special Appeal No.425/02 decided on 9.5.2006. 3 3. Shri S.S.Sharma, learned Government counsel opposed the writ petition and submitted that this argument was not raised before the Labour Court and, therefore, it cannot be said that the Labour Court committed any error of law in not deciding it. Learned Government Counsel also submitted that even otherwise, this being a question of fact, cannot be agitated before this Court and that seeking review of the award would be at the appropriate course. It was argued that in any case, the petitioner-workman was engaged in a scheme of DRDA, which had already come to an end therefore, there was no question of his reinstatement now particularly when he worked with the respondents only for 221 days and he was retrenched as far back as 31.7.1995. 4. I have given my anxious consideration to the arguments aforesaid and perused the impugned award and other material on record. 5. Affidavit of Satya Pal Singh, Assistant Engineer PWD Sub-Division, Sikar filed on behalf of Management, is on record. Para No.3 of the affidavit indicates the working of the petitioner. According to this, the petitioner is admitted to 4 have worked for 24 days each in January & February 1995, 21 days in March 1995, 18 days in April 1995, 27 days in May 1995, 26 days each in June & July 1995, 8 days in October 1995, 25 days in November 1995, 24 days in December 1995 and 23 days in January 1996. As per this admitted version of the respondent itself, the petitioner has worked with the respondents regularly except the months of August and September, 1995 the total days comes to 221 days. Even if the petitioner is held entitled to one weekly holiday, the number of minimum 30 holidays being added to above actual number of working days, he would have completed 240 days. The Division Bench in Jaipur Development Authority, supra, accepted this plea even in the context of case where workman worked for 185 days in a calendar year. In the present case, the proposition of law propounded by the Supreme Court in American Express International Banking Corporation, supra, as followed by division bench in Jaipur Development Authority, supra squarely applies. It would thus be evident that the respondents could not retrench the petitioner without complying the provision of Section 25-F of the I.D.Act. The retrenchment of the petitioner is, therefore, held to be illegal. 5 6. Coming now to the question as to what relief can, in the present circumstances, be granted to the petitioner, I find that the petitioner was retrenched by the respondents as far back as 1.7.1995. According to them he was working in a scheme of DRDA, but they could not prove this fact. At this stage, learned counsel for the petitioner has invited attention of the Court towards the award dated 9.6.2003 passed in Chiranji Lal Vs. Assistant Engineer, PWD, Sikar : NCR Case No.1456/98 and has argued that the workman Chiranji Lal in the same office/establishment was also retrenched almost at the same time the petitioner was retrenched. Reference was made by the appropriate Government in his case. In that case too, the respondents had taken the defence that the workman was engaged in the scheme of DRDA and that he had abandoned the service, but neither of the arguments were accepted. The Labour Court in the award dated 9.6.2003 passed in that case observed that workman would be entitled to benefit of Sundays and other gazetted holidays, which should be added to over all working days. This was held so following the law by the Supreme Court in American Express Bank, supra. In that case, the workman was held entitled to reinstatement with continuity and 25% back wages. The award in that case was challenged by the 6 respondents in SB Civil Writ Petition No.7638/2003. A Coordinate Bench of this Court vide judgment dated 16.2.2004 upheld the award by modifying the same to the extent that workman shall be entitled for reinstatement from the date of award only on the same terms and conditions he was employed at the time of his termination. However, he would not entitle for any past benefits prior to the date of award i.e. 9.6.2003. It was directed that since the termination was of the year 1995, the respondents should reinstate the workman within 30 days from the date receipt of the copy of the order and make the payment as ordered within 30 days thereafter. Learned counsel therefore, argued that when two workmen working in the same office and engaged in the same manner are removed together, and two different kinds of award were passed by the Labour Court pursuant to one of which, the other workman has been reinstated, it would be too harsh upon the petitioner if the relief of reinstatement is denied to him. It is informed that respondents have reinstated the aforementioned workman Chiranji Lal. 7. I find substance in the arguments of the learned counsel of the petitioner because even in the context of the 7 present case where the other workman Chiranji Lal engaged allegedly under the same scheme which fact although the respondents could not be prove, and in the same Office, different treatment to them would not be justified and ends of justice would be met if parity is maintained between such two persons. In the result, this writ petition is partly allowed and the petitioner is held entitled to the same relief. Accordingly the award of the Labour Court is modified in the terms that the retrenchment of the petitioner is quashed and set aside. The petitioner would be entitled to reinstatement from the date of the award i.e. 10.6.2003 only on the same terms and conditions on which he was employed at the time of his termination. However, he shall not be entitled for any past benefits prior to the above date, i.e. 10.6.2003. Since the termination relates to the year 1995, the respondents are directed to reinstate the petitioner within 30 days from the date of receipt of certified copy of this order and also make the payment as ordered above, within 30 days thereafter. (MOHAMMAD RAFIQ)J. A.Arora/- Item No.28.