1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT Lal Singh Vs. State of Raj. & Anr. D.B. CIVIL SPECIAL APPEAL (W) NO.778/2006 against the order dt.5.9.2006 passed in S.B. Civil Writ Petition No.4018/1997. Date of judgment : 25th April, 2007 PRESENT HON'BLE MR. JUSTICE RAJESH BALIA HON'BLE MR. JUSTICE BHANWAROO KHAN Mr. Rajesh Joshi for the appellant. Mr. L.R. Upadhyay, Dy. Government Advocate. ________ BY THE COURT:-(PER HON'BLE RAJESH BALIA, J.) We have heard learned counsel for the parties. This appeal is directed against the order of learned Single Judge dated 5th September, 2006 by which the award of learned Labour Court dated 14.12.2006 had been set aside. 2 The facts of the case are that the appellant was appointed as Labour on muster rolls under the Forest Department on 1st May, 1989 and his services were allegedly terminated on 15th September, 1989. The termination of services was made subject matter of an industrial dispute which was referred to Labour Court, Jodhpur. The respondent-petitioner in response to the claim made by the workman that his services have been illegally terminated had pleaded that the services were never terminated by the employer but the workman has voluntarily abandoned services and, therefore, it is not a case of retrenchment. The muster rolls were not produced before the Labour Court despite the same was called for. After taking into consideration the evidence led by the employer as well as of workman and the statements rendered on behalf of both the parties and the cross-examination and considering the fact that had 3 the workman remained absent on his own, the muster rolls in which his name was entered would have been revealed the true state of affairs, therefore, adverse inference was drawn against the employer. The Tribunal held that his absence has been marked, the workman has not voluntarily abandoned the services but services have been terminated by relying on the evidence led by the workman. The workman has further stated that after termination of his services, fresh employees have been appointed. This fact has also not been controverted. Notwithstanding raising ground of Section 25G of the Industrial Disputes Act, it has not been the case of the applicant that any person junior to him has been retained in service by showing any illustration. Apparently, since the workman has worked only for a period of about 4 months Section 25F was not attracted. Merely relying on the non-publication of the seniority list in terms of Section 22 of the Industrial Disputes Rules, the retrenchment was held to be in violation of Section 25G of the Industrial Disputes Act and was held to be invalid. Consequently, reinstatement 4 with 50% back wages had been awarded vide award dated 14.12.1996. This award has been challenged by the respondent employer before the Court vide S.B. Civil Writ Petition No.4018/1997 which has been allowed by the learned Single Judge vide his judgment dated 5th Sept., 2006. The primary ground on which the petition has been allowed is that the learned Single Judge has discarded the finding about the termination of the service of employee and reached his own finding that it was a case of abandonment. We are of the opinion that the court in its jurisdiction under Article 226 while examining a case for the purpose of issuing a writ of certiorari, it is not open for the Court to ignore the finding recorded by the Labour Court and reach its own finding of fact and substitute the same without there being any suggestion or finding that the finding reached by the Labour Court 5 was perverse or based on no material or was based on irrelevant consideration. We are therefore, of the opinion that so far as the finding reached by the Labour Court that it was a case of termination and not abandonment of service was finding of the fact and the same could not have been reversed by learned Single Judge. However, we are further of the opinion that there being no case of violation of Section 25-F and there being no allegation that person junior to him was continued in service while his services were terminated on 15.9.1989, it was not a case of violation of Section 25-G of the Industrial Disputes Act. Merely non- publication of seniority list without there being any evidence to suggest that any person junior to workman was continuing in service, the finding about violation of 25-G could not be sustained. Therefore, the retrenchment could not have been held to be invalid by the Labour Court. To that extent we are in agreement with the conclusion reached by the learned Single Judge 6 that the retrenchment was not invalid though for different reasons. Since the retrenchment was not illegal, the directions to reinstate with 50% back wages also could not have been sustained. However, on undisputed facts that after termination of services of the petitioner others had been employed with the employer in violation of Section 25-H that is to say without first offering the opportunity of appointment to the retrenched workman. When the new persons were appointed, the petitioner- appellant had the prior right to be appointed against any future vacancy. This is so that termination of services by the employer in the present case did amount to retrenchment. Section 25H operates only when there is valid retrenchment. Its operation has overriding effect over all other laws, agreements and rules in view of Section 25 J. In these circumstances, the appointment given to the appellant in compliance of the award on 26.10.1999 cannot be brought to an end by the 7 respondents. Since as a result of the judgment under appeal, the appellant was entitled to be employed not with reference to the award but with reference to Section 25H of the Industrial Disputes Act it needs to be clarified that even otherwise in view of Sections 25-H read with Section 25-J of the Industrial Disputes Act, the appellant was entitled to be considered and appointed against any future appointment made by the respondent after 15.9.1989 and that being the position, the non- sustaining of the award of reinstatement with back wages would not automatically result in termination of services of the appellant, but same shall continue with effect from the date of appointment a fresh appointment but his position will be prior to that of fresh appointment after his retrenchment. Therefore, this appeal is disposed of with the direction that the appointment of the appellant on 26.10.1999 and subsequent progress in service would not be affected by the finding reached by the learned Single Judge and affirmed by us that the award of reinstatement with back wages is not sustainable. 8 There shall be no order as to costs. [BHANWAROO KHAN], J. [ RAJESH BALIA ], J. babulal/