IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.2133/01 University of Rajasthan vs. The Judge, Labour Court & Anr. Date of order : 12/11/2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri N.S. Chouhan for the petitioner. Shri S.P. Sharma for the respondent. ****** This writ petition seeks to challenge the award of the Labour Court dated 17.5.2000 whereby the reference of the Industrial Dispute with regard to the removal of the respondent-workman was answered in the terms that the action of the management in removing the respondent-workman from their services on 17.6.1985 was not legal and valid. He was therefore directed to be reinstated in service with continuity but without any back wages. Shri N.S. Chouhan, learned counsel for the petitioner has argued that the respondent was engaged purely on temporary basis as Guard by order dated 16.9.1978 on payment of consolidated salary of Rs.300 per month. He absented from his duty on 1.5.1985. He was served with a notice on 11.5.1985 requiring him to appear on duty positively on 14.5.1985. When he did not appear, notice was given to him on 20.5.1985 followed by yet another notice on 29.5.1985. Since the appointment was temporary in nature on fixed salary and he had not been continuing, he was removed on 17.6.1985. Thereafter, there was no question of the leave application of the petitioner being accepted. The Labour Court has failed to appreciate all these aspects of the matter. Learned counsel argued that the appointment of the respondent was never made on regular basis because the post of Guardsman as shown in Schedule-I to the Rajasthan University (Non Teaching Recruitment) Rules, 1974 is required to be filled as per the procedure contained in the said rules by direct recruitment. It was not a legal appointment and the respondent lost his job by his own conduct. Learned counsel argued that the reference in this case was made for notification of the government dated 29.10.1992 and this also shows that the respondent was not at all serious about his service. There was thus a delay of more than seven years even in the making of the reference because the respondent stood removed from the services of the petitioner on 17.6.1985. The Labour Court ought not to have therefore directed for reinstatement of the respondent and if at all there was violation of Rule 25-F, appropriate remedy for the case like this was to direct lump sum compensation in lieu of the reinstatement. Learned counsel relied on the Supreme Court judgment in Jaipur Development Authority vs. Ram Sahai & Anr.-JT 2006 (9) SC 520. Shri S.P. Sharma, learned counsel for the respondent argued that the delay in making of reference cannot be attributed to the respondent-workman because he approached the government in time and that the Labour Court has already taking note of this fact, denied the back wages to the respondent. It was argued that the appointment of the respondent was made on recommendation of the selection committee and even if the respondent has paid monthly salary, appointment has never been treated as legal in nature. The respondent had been taken ill and therefore he could not attend the duties. He remained under treatment from 1.5.1985 till 13.8.1985 and immediately on regaining health, he gave his joining report on 14.8.1985. When he submitted the medical certificate, he was neither allowed to give joining, nor medical certificate was accepted. He was also not paid the salary for the time he remained ill. The respondent submitted application before the petitioner on 21.9.1985 but he was given oral assurance that his matter was being processed and it was only much thereafter that he was informed that his services were terminated on 17.6.1985. He on 29.9.1989 again submitted an application to the petitioners for reinstatement in service, but that was not accepted, then he approached the Conciliation officer. Learned counsel submitted that there is a recent judgment of Supreme Court where the approach of law is that lump sum compensation should be paid in lieu of reinstatement compensation has been deviated from, especially in cases where the workmen are shown to have rendered services for long period. In the present case, since from the date of his appointment in 1978, the respondent-workman served the petitioners for about 7 years, the relief of reinstatement should not be denied to him. Consideration of the arguments aforesaid lead to the conclusion that the respondent workman was removed from the service by order of the petitioners dated 17.6.1985 and that his removal was made without the compliance of Section 25-F of the Industrial Disputes Act. The Labour Court has precisely on this ground found the removal of the respondent-workman as illegal. The petitioner has not been able to dislodge such findings of the Labour Court because it is not even their case that any compliance of Section 25-F was made. The learned Labour Court in my view therefore did not commit any mistake in holding the reinstatement of the respondent- workman to be illegal. Coming now to the question of reinstatement of the workman, the contention of the learned counsel for the petitioner is that the respondent was not appointed on regular basis, but was appointed on adhoc/ temporary basis on payment of consolidated salary of Rs.300/- per month and that he on his own absented from duties and therefore he was taken as removed and that according to his own statement of claim, he initially made an application for joining on 14.8.85, thereafter submitted application for taking on duties on payment of outstanding on 21.9.1985. He then remained absented for more than four years and thereafter woke up from the slumber to submit another application belatedly on 29.9.1989. Further it is the case of the petitioners that the respondent in the statement has asserted that he approached the Conciliation Officer even after submitting the application on 29.9.1989. Facts thus clearly show that for four years practically no remedy was taken by the respondent-workman against the order of removal and he has not shown when exactly he approached the Conciliation Officer but what is evident from the perusal of the award is that the reference was made to the Labour court by notification dated 29.10.1992. The award was passed by the Labour Court on 17.5.2000 whereas the removal of the respondent was made on 17.6.1985 which clearly show that the award itself was passed 15 years after the date of removal. If the case is examined from another angle, the delay of more than seven and half years was there in the making of reference. This Court while entertaining the writ petition and upon hearing both the parties stayed the operation of the award by order dated 4.7.2001. Practically now the respondent-workman has remained out of employment for last 23 years and a half. The Supreme Court in the case relied upon by the petitioner i.e. In Ram Sahai, supra substituted the relief of reinstatement by that of lump sum compensation, but although upheld the award of the Labour Court to the extent of violation of Section 25-G and 25-H. That was of course a case where the number of days for which the services were rendered by the workman were less than the period for which the services have been rendered by the respondent workman herein. This Court in Vikas Adhikari & Anr. vs. Judge, Labour Court, Bikaner & Anr.-2007 (1) WLC (Raj.) 474 had on ayalysis of large number of Supreme Court judgements as also number of division bench judgements of this Court held that the principles of law which can be culled out from such judgements are that relief of lump sum compensation in lieu of reinstatement may be awarded (i) when the nature of appointment of the workman is only casual and temporary; (ii) such appointment was not made by following due process of law; (iii) when there had been delay in making of reference; (iv) when a long time has otherwise elapsed from the date of alleged retrenchment till passing of the award and subsequently till deciding the matter by the Court; (v) when length of service of the workman has not been much; (vi) when the workman was engaged in a temporary project or scheme which has come to end; (vi) when the management does not have any post or means to accommodate and continue the workman in their services. The present one is a case where I find that there has been enormous delay not only in raising a dispute by the respondent but also dispute was referred to the Labour Court by the appropriate government with the delay of seven and half years. Moreover a period of 15 long years have elapsed from the date of removal till the date of award and now when this petition is being decided, more than 23 years have passed after the date of removal of the workman. It is therefore considered appropriate to now reinstate the workman- respondent. Ends of justice however, would be met if the direction of the learned Labour Court requiring the reinstatement of the workman is suitably modified by grant of lump sum compensation in lieu thereof. The writ petition is therefore partly allowed. The direction of the learned Labour Court for reinstatement of the respondent workman is set aside and keeping in view the length of the period from the date of removal of the respondent till now, the petitioner is directed to pay to the respondent workman, a lump sum compensation of Rs.1,00,000/- in lieu of reinstatement. The writ petition is disposed of accordingly. (MOHAMMAD RAFIQ), J. RS/