SBCWP5977/1997 // 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.5977/1997 {Assistant Engineer, Irrigation Modernization, Sub Division, Alniya Dam, Jhala House, Kota Vs. Shri Kishan Gopal} Date of Order ::: 04.02.2010 Present Hon'ble Mr. Justice Mohammad Rafiq Shri S.D. Khaspuria, Additional Government Counsel and Shri Hemant Mathur, Deputy Government Counsel for petitioner, Shri Ashish Sharma for Shri Deepak Goyal, Counsel for respondent #### By the Court:- Heard learned counsel for parties. This writ petition has been filed by petitioner - Assistant Engineer, Irrigation Modernization, Sub Division, Alniya Dam, Jhala House, Kota, challenging Award dated 04.12.1995 of Labour Court, Kota, holding termination of respondent-workman as violative of Section 25-F of the Industrial Disputes Act, 1947, (for short, 'the ID Act') and directed his reinstatement with full back wages and continuity of service with effect from 01.12.1988. SBCWP5977/1997 // 2 // Shri S.D. Khaspuria, learned Additional Government Counsel, appearing on behalf of petitioner, submitted that the learned Labour Court was wholly unjustified in recording a finding that there was violation of Section 25-F of the ID Act. He submitted that the respondent-workman did not continuously work with the petitioner for entire duration i.e. from December, 1984 till 01.12.1988; in fact he remained absent for the period March, 1985, July, 1985 to September, 1985 and November, 1985 to March, 1986 and did not work with them. Thereafter he appeared to attend the duties in April, 1986; again he disappeared and came back on duties in November, 1986; thereafter he remained absent for the period January, 1987 to March, 1987, May, 1987, October, 1987 and March, 1988. His services were terminated pursuant to the Government Order dated 17.11.1988. It was denied that the respondent-workman worked for 240 days in a calender year preceding the date of his retrenchment. Learned counsel for the petitioner also referred to Exhibit M-2 in order to show that in fact retrenchment of SBCWP5977/1997 // 3 // the respondent-workman was made after making compliance of Section 25-F of the ID Act. Learned counsel, in support of his arguments, relied on a judgment of Hon'ble Supreme Court in Raghvendra Rao etc. Vs. State of Karnataka & Others – 2009 (1) Supreme 751, and argued that therein it was held by Hon'ble Supreme Court that merely because an employee continued under the cover of interim order of Court, he would not be entitled to or have any right, to be absorbed or made permanent in the service. It is further submitted that the respondent-workman was engaged in a particular scheme and on coming to an end of said scheme, his engagement with the petitioner automatically came to an end. Shri Ashish Sharma, learned counsel for respondent-workman has opposed the writ petition and submitted that the alleged period of absence of respondent-workman could not be proved by evidence led before the Labour Court on behalf of the petitioner. Therefore, mere allegation in regard thereto cannot be taken as a proof. It is submitted that the respondent-workman continuously worked with the petitioner right from December, 1984 till 01.12.1988, when he was SBCWP5977/1997 // 4 // removed from the service. It is submitted that when the Award was passed in favour of the respondent-workman, it cannot be said that he continued in service on the strength of interim order of the Court. This Court stayed only a part of the Award, which directs payment of back wages to the respondent-workman. Learned counsel invited attention of the Court towards the finding recorded by the Labour Court and argued that Exhibit M-2 was the document produced by the petitioner themselves, which was an order issued by the Assistant Engineer to the effect that one month notice pay or compensation in lieu thereof shall be paid to the respondent-workman, but actually no such notice pay and/or compensation was paid to him. Therefore, they cannot be allowed to say that provisions of Section 25-F of the ID Act were complied with. Having heard learned counsel for the parties as well as perused the material on record and carefully gone through the impugned Award, I find that in Para 5 of the Award, arguments of the representative appearing for the petitioner are mentioned where it is submitted that Exhibit M-2 was SBCWP5977/1997 // 5 // issued by the Assistant Engineer whereby it was directed that the respondent-workman was not paid notice pay or one month's salary and compensation as per the Rules. This, according to the petitioner, was done in compliance of the Government order dated 17.11.1988. When the petitioner itself decided to give to the respondent-workman notice pay and compensation, in compliance of Section 25-F of the ID Act, argument by them that there was no necessity to comply with that provision, cannot be accepted. Moreover, no such plea, that the respondent was engaged in a particular scheme, was set up before the learned Labour Court nor any such evidence was produced. The petitioner failed to prove before the learned Labour Court that he made compliance of Section 25-F of the ID Act. Even petitioner's witness, namely, Suman Swaroop Srivastava, in his cross-examination, admitted that he cannot say with certainty as to who informed the respondent about compliance of Section 25-F of the ID Act or payment of notice pay or compensation in lieu thereof etc.; the Junior Engineer must have done so but he has shown his ignorance of SBCWP5977/1997 // 6 // having knowledge of this fact. This Court is merely examining the validity and correctness of the Award passed by the learned Labour Court, Kota, and not the question of regularization or absorption of respondent in service. The cited judgment cannot, therefore, be of any help to the petitioner in the facts and situation of the matter. What is to be examined is whether the learned Labour Court has correctly arrived at the conclusion with regard to non-compliance of Section 25-F of the ID Act. Even the kind of evidence, which was produced by the petitioner before the learned Labour Court, especially the admission of the petitioner themselves that they, in fact, withdrew the amount from the Bank to be paid to the respondent-workman by way of notice pay and compensation, yet they failed to prove that any such payment was ever made to the respondent-workman; the proof with regard to violation of Section 25-F was writ large. In my considered view, the Award passed by the learned Labour Court to the extent of finding on the question of violation of Section 25-F of the ID Act does not suffer from any infirmity. However, SBCWP5977/1997 // 7 // learned counsel also argued that violation of Section 25-F of the ID Act does not automatically make the respondent-workman entitled for his reinstatement. Keeping in view that the Award of the Labour Court was passed on 04.12.1995, in a case whereby removal of respondent-workman was made on 01.12.1988 and notification of reference was issued by the Government on 28.03.1990, award of full back wages cannot be justified, the contention of the learned counsel for the petitioner to that extent deserves to be upheld. In the result, this writ petition is allowed in part. Part of the Award containing direction requiring the petitioner to pay to the respondent-workman full back wages, is set-aside. However, rest of the direction in the Award, is upheld. (Mohammad Rafiq) J. //Jaiman//