1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ------------------------------------------------------ SPL. APPL. WRIT No. 83 of 1998 BEGA RAM V/S LABOUR COURT & ORS Mr. R.S. SALUJA, for the appellant / petitioner. Mr. B.L.BHATI, Dy. G.A. Date of Order : 29.1.2008 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI DEO NARAYAN THANVI,J. ORDER ----- The appellant, by this appeal, seeks to challenge the order & judgment of the learned Single Judge dt.5.11.1997, dismissing his writ petition. The appellant had filed the writ petition, seeking to challenge the award of the Labour Court, Annex.6 dated 19.4.1993, to the extent, it declined reinstatement, and prayed that while upholding the part of the award, whereby retrenchment of the petitioner was found to be bad, the petitioner may be 2 directed to be reinstated with back wages, and all consequential benefits. Petitioner's claim before the Labour Court was, that with the consent of the Vikas Adhikari, the petitioner was appointed as Assistant Secretary in the Gram Panchayat on 1.2.1983, and continued to serve upto 1.5.1989. It is also alleged that in every calendar year, he completed 240 days, and that his services have been retrenched, without complying with the mandatory provisions of the Industrial Disputes Act. The claim was contested on the ground, that the petitioner was not appointed as Assistant Secretary, nor he continuously served, rather, as a matter of fact, there was no regular work in the Panchayat Samiti, and on the occasion of the meeting only, some part of work was taken. It was also contended, that the workman cannot be said to be an industrial workman. Then, it was pleaded that appointment to the post of Assistant Secretary is made, by adopting appropriate resolution by the Panchayat Samiti, and on creation of post, in accordance with the Zila Parishad Act. Thus, it was prayed that the claim of the workman be dismissed. The learned Labour Court held the trial, and recorded the evidence of the parties, and came to the 3 conclusion, that the witness of the respondent defendant Ramgopal has admitted, that he was Vikas Adhikari since 1982, and that the Gram Panchayat was under their Panchayat Samiti, and that he did not know as to whether Bega Ram had worked there, or not. Likewise, Taju Khan, the Administrator of the Gram Panchayat, has admitted the attendance register Ex.W.2 to Ex.W.27, and that he worked from 1.12.1983 to 30.4.1989. Thus, it is established, that the workman had worked as Assistant Secretary from 1.12.1983 to 30.4.1989, and in every calendar year, he completed 240 days, and since, it is not shown that the provisions of Section 25F have been complied with, the retrenchment was found to be bad. However, while granting relief, it was observed, that in view of the fact, that the post, on which the petitioner was appointed, has been abolished, therefore, he cannot be reinstated, and therefore, he was awarded one month's salary in lieu of notice, and retrenchment compensation at the rate of 15 days' emoluments for each year of service. It was also directed, that this amount be paid within a period of three months from the publication of the award, else it will carry interest at the rate of 12% p.a., and also awarded Rs.200/- as litigation expenses. Learned Single Judge found, that the Panchayat is 4 not an industry and, therefore, the Labour Court was incompetent to pass the award. However, even on that ground, instead of setting aside the award, the learned Single Judge has dismissed the writ petition. We have heard learned counsel for the parties. In our view, the finding of the learned Single Judge, about the Panchayat, being not industry, cannot be sustained, on the face of the Full Bench judgment of this Court, in Akhil Raj. Rajya Hand Pump Mistries Sanghathan, Banswara v. State, reported in 1994(1) WLC (Raj.) p.1, whereby the Panchayat Samiti has been held to be industry. On the same analogy of reasonings, the Panchayat cannot be denied to be an industry, therefore, the impugned judgment is required to be set aside. Then comes the question as to what relief, the petitioner is entitled to? We have examined the record, comprising of the documents, available on the file of the writ petition, and find, that the petitioner had worked from 1983 to 1989, as Assistant Secretary, and the learned Lower Court has already found, that he was retrenched without complying with the provisions of Section 25F of the Act, but then, the fact does remain, that he was retrenched way back 5 in 1989, and it has also been considered by the Labour Court, that the post, on which the petitioner was appointed, had been abolished. It was sought to be contended by the learned counsel for the appellant, that in certain litigations, it was given out by the State, that the persons would not be removed, and/or they would be absorbed else where, and therefore, if the petitioner would have been reinstated, he would have been entitled to be absorbed somewhere else, and thus, he would have continued in service, this is one aspect of the matter. The other more important aspect of the matter is, that it is not shown, that the appointment of the petitioner was in accordance with the procedure, prescribed by law, which might be in accordance with the provisions of Articles 14 and 16 of the Constitution of India. Then, it is also not shown, as to what were the terms of the appointment, inasmuch as, the appointment order has not been produced and, therefore, we are at loss to comprehend as to whether the appointment was temporary, or ad hoc, or time bound, or the like. In such circumstances, considering the totality of the circumstances, including the fact, that the appellant had worked for the period 1983 to 1989, he has been retrenched way back in 1989, the post has been abolished, and it is not shown, as to what were the terms of his appointment, and, obviously, it is not 6 shown, that he was appointed in the manner, keeping in view the letter and spirit of Articles 14 & 16 of the Constitution, in our view, the learned Labour Court cannot be said to be in error, in declining the reinstatement. However, the fact remains, that as the amount, awarded to the appellant by way of compensation, virtually has the effect of denying the award of any compensation, inasmuch as the amount awarded by the Labour Court would have been payable to the workman, if the requirements of Section 25F were to be complied with, and nothing more has been awarded. In our view, in the above totality of the circumstances, all told compensation of Rs. One lac would meet the ends of justice, to satisfy all claims of the appellant hitherto fore. Accordingly, the appeal is allowed, the impugned judgment is set aside, and the award of the Labour Court is modified in the manner, that the payment of claims of the appellant hitherto fore, are held to be satisfied, on his receiving, all told compensation of Rs. One lac. This amount be paid to the workman within a period of three months from today. It is made clear, that if the amount is not paid, it shall carry interest at the rate of 9% per annum, with effect from today, and the appellant shall be entitled to recover the amount, by taking appropriate proceedings for 7 enforcement, before the Labour Court. ( DEO NARAYAN THANVI ),J. ( N P GUPTA ),J. RANKAWAT JK, PS