1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.5830/1994 Raghunath vs. The Judge, Labour Court & Ors. Date of order : 22/1/2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Vigyan Shah for the petitioner. Shri Manoj Kumar Sharma with Shri Kapil Manoj Chandra) for the respondents. ****** This writ petition has been filed challenging the award of the Labour Court, Bharatpur dated 8.3.1994. An industrial dispute was referred to the Labour Court by the appropriate government on the question of validity of retrenchment of the petitioner. The Labour Court answered the reference in the terms that the action of the respondents in refusing to take the petitioner on duty was just and reasonable and therefore the petitioner was not entitled to any relief. Learned counsel for the petitioner has argued that the Labour Court has recorded an erroneous finding that the petitioner was engaged through the contractor Mahipal Singh and such a finding has been recorded even though there was no pleading to that effect 2 in the reply to the statement of claim by the respondent. It was argued that the Labour Court has failed to consider the State amendments inserted in the definition of employer as well as the workman. Reference was made to definition of the employer as given in Section 2(g) of the Industrial Disputes Act and `workman’ as provided for in Section 2(s) of the said Act and State amendment by Rajasthan Act No.34 of 1958 inserted therein in both of it with effect from 1.7.1960. It was argued that the Tribunal refused to go into the question whether the petitioner had completed 240 days in the year immediately preceding the date on which his services were terminated by the respondents on the premise that this question was not required to be decided because petitioner was not able to prove that he was employee of the respondent. In other words, learned counsel submitted that the Tribunal has held that the petitioner could not prove relationship of master and servant and on that basis it has returned the reference back without any specific finding on the question of violation of 3 Section 25-F. Learned counsel in support of his arguments relied on the judgment of division bench of this Court in M/s. Rajasthan Cooperative Dairy Federation Ltd. Vs. The Judge, Industrial Tribunal and Labour Court, Bikaner-2001 (2) WLC 128 and Brijesh Narayan vs. Rajasthan State Cooperative Bank Ltd. Jaipur & Ors.-2006 (1) RLW 210. Learned counsel argued that the evidence of the petitioner-workman has not been appreciated by the Labour Court in correct perspective and the provisions of the Contract Labour (Regulation & Abolition) Act, 1970 was also not at all considered. It was argued that the respondents failed to point out name of any contractor who is said to have been awarded the work and that the petitioner was never engaged through any such contract. Even if, he is assumed to have been engaged through contractor, the respondents being the principal employer, in view of the said enactment, the petitioner would be deemed to have been an employee of the respondent. Shri Manoj Kumar Sharma, learned counsel for the respondents opposed the writ 4 petition and submitted that the aforesaid two judgements on which reliance is placed by learned counsel are per incurium. It was argued that State amendments also could not be enforced because they are in conflict with the parent Act. He also argued that even if the State amendments are looked into, the definition of Section 2(g) of the Act as amended by the State legislature would require that the work awarded to the contractor has to be such, which is part of the main industry. In the present case, the learned counsel citing from the statement of the petitioner, which is reproduced in para 8 of the award, argued that the petitioner admitted that he was engaged for column painting of the factory. It is thus clearly proved that he did not work for manufacturing of wagons, which is the principal work of the respondent industry. It was submitted that argument of the petitioner if upheld, might necessitate remand of the case, but in the present case, there would be no advisability of such remand because the petitioner by now has even otherwise attained the age of 5 superannuation. Having heard the learned counsel for the parties and perused the impugned award as also the other material forming part of the record and cited judgements, I find that the reference that was made was on the industrial dispute whether action of the respondents in refusing to take the petitioner on work was legal and valid and if not what relief the petitioner is entitled to? The petitioner claimed that he had worked for last more than a year with the respondents and respondents denied this fact asserting that he was directly engaged by them but that he was not an employee of a contractor Mahipal Singh. There were thus two aspects of the factual controversy, whether petitioner was employee of the respondents and if so what was its effect vis-à-vis the definition of `employer’ as given in Section 2(g) and 2(s) of the Act and second aspect was that whether the petitioner has completed 240 days and if the respondents were required to comply with Section 25-F of the Industrial Disputes Act. In the present case, on perusal of the 6 award, I find that the Labour Court has not recorded specific finding on either of the questions and has not at all gone into the State amendments as given in Section 2(g) and 2(s) to find out what would effect of those statements in the facts of the present case. In fact, the Labour Court has clearly held that whether or not it is proved that the petitioner has worked 240 days would be inconsequential because he has failed to prove himself employee of the respondents. Both points, in my considered view, were interwoven and were to be decided having regard to the aforesaid provisions and also considering the effect of the provisions of Contract Labour (Regulation & Abolition) Act, 1970 on such aspects. I am not inclined to uphold the argument of learned counsel for the respondent that the aforesaid two judgements, on which reliance is placed by the petitioner, should not be followed because in his perception they per incurium. These two judgements are on the same subject and have authoritatively pronounced upon the proposition of law that definition of a workman includes the workman employed 7 through contractor. In fact, in Brij Narain, supra, this Court remanded the matter back to the Labour Court precisely for this very reason that the Labour Court failed to appreciate this aspect of the matter. Merely because the petitioner has attained the age of superannuation, remand in such a situation which is the logical consequence of the view that I have taken of the matter cannot be avoided. What would be the effect of the fact that the petitioner has attained age of superannuation if eventually the reference is answered in the terms favourable to the petitioner and in that event what should be awarded to him would be seen by the Labour Court. In the result, this writ petition is allowed. The award of the Labour Court dated 8.3.1994 is set aside and the matter is remanded back to the Labour Court for its expeditious disposal on merits. (MOHAMMAD RAFIQ), J. RS/