Rajasthan High Court - Jaipur
Block Development Officer Panc vs The Judge Labour Court Bharatp on 4 July, 2019
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 7359/2005
Block Development Officer, Panchayat Samiti-Nadbai, District
Bharatpur.
----Petitioner
Versus
1. The Judge, Labour Court, Bharatpur Rajasthan
2. Shri Prahlad S/o Devliprasad Revti Prasad B/c Kumhar,
Namkheda Via Sersena, Tehsil Nadbai District Bharatpur.
----Respondents
For Petitioner(s) : Mr. Pradeep Kalwania, Addl. G.C. For Respondent(s) : Mr. Manoj Pareek, Adv.
HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA Order 04/07/2019
1. The petitioner-BDO Panchayat Samiti, Nadbai Distt. Bharatpur has assailed the Award passed by the labour Court, Bharatpur dated 19.04.2005 on the ground that the petitioner was issued a notice under Section 25-F of the Industrial Disputes Act, 1947 (hereinafter to be referred as the 'Act of 1947') for treating his services to be dispensed with as daily wager on completion of 30 days.
2. Learned Counsel for the petitioner submits that the notice was issued on 25.11.1995 and, therefore, when 30 days time was provided, there was no occasion to issue notice pay and the compensation on the date of issuance of notice dated 25.11.1995 and the petitioner could collect the amount upto 26.12.1995. Learned Counsel thus submits that the Award passed (Downloaded on 30/08/2019 at 09:23:04 PM) (2 of 6) [CW-7359/2005] by the labour Court holding that the compliance of Section 25-F of the Act of 1947 has not been made is erroneous and the Award deserves to be set aside.
3. Heard both the Counsels and after hearing the parties, I find that the Award dated 19.4.2005 passed by the Judge, Labour Court, Bharapur has noticed that before the reference was made to it on 30.07.1996 relating to the notice dated 26.12.1995 dispensing with the services of the workman, another Award had been passed by the Industrial Tribunal, Bharatpur in ITR No.118/1990 on 06.04.1994 wherein the workman was held to be entitled to regular pay scale on the post of Gardner w.e.f. 10.10.1979 that is from the day he was appointed on the said post. It was further directed that all consequential benefits of the pay scale shall also be released in his favour.
Learned Counsel has further submitted that the Award dated 6.4.1994 was challenged by the petitioner before the High Court in S.B.C.W.P. No.3140/1991 wherein the High Court vacated the stay on 7.8.1995. After vacation of the stay, the Committee took a decision to terminate the services of the petitioner treating him as a daily wager and issued a notice on 28.11.1995 which has been challenged by way of the reference. The learned labour Court has thus, reached to the conclusion that the petitioner has not complied with the earlier Award and the respondent-workman, therefore, was entitled to receive the notice pay in terms of Section 25-F of the Act of 1947. Learned labour Court has also noticed that a sum of Rs. 27,985/- was paid to the workman by the petitioner by cheque vide letter dated 1.4.1999 during the pendency of the dispute before the labour Court thus, the amount (Downloaded on 30/08/2019 at 09:23:04 PM) (3 of 6) [CW-7359/2005] was not paid alongwith the notice or on completion thereof and, therefore, the labour Court has followed the law laid down by the Apex Court reported in AIR 1984 Supreme Court 500- Gammon India Limited Vs. Niranjan Dass and judgment reported in 1994(1) WLC 523- Radha Krishan Meena Vs. State of Rajasthan & Ors. .
4. Having noticed as above, this Court finds that the Award passed by the labour Court dated 19.4.2015 has taken into consideration the law as settled by the Supreme Court in Gammon India Limited (cited supra) wherein pre-requisites for valid retrenchment were laid down and it was held as under:-
"3. It is not disputed that the pre-requisite for a valid retrenchment as laid down in Sec. 25f has not been complied with and therefore the retrenchment bringing about termination of service is ab initio void. Viewed from this angle, the award of the Industrial Tribunal was correct and unassailable and the learned Single Judge was in error in interfering with the same. Undoubtedly, the Division Bench of the High Court has set aside the order of the learned Single Judge and restored the award for reasons of its own. However, for the reasons herein indicated, the decision of the Division Bench in Letters Patent Appeal No. 25 of 1970 is upheld and confirmed and this appeal must therefore fail and accordingly it is dismissed."
This Court in 1984 RLR 981- R.S.R.T.C. V. Judge, Labour Court after making detailed discussions of the provisions of Section 25-F(a) and (b) as well as Section 33(2)(b) of the Act of 1947 held that the provisions of Section 25-F of the Act of 1947 are mandatory and if the two conditions enumerated in Section 25-F(a) and (d) are not fulfilled on or before or at the time of retrenchment, the retrenchment will have to be treated as non- est, void, ab-initio and nullity and the workman would be entitled to reinstatement in service with continuity in service. (Downloaded on 30/08/2019 at 09:23:04 PM)
(4 of 6) [CW-7359/2005]
5. In the present case, the workman was appointed on 10.10.1979 although the petitioner has stated that the workman was appointed in 10.10.1980 but their contention has not been accepted by the Industrial Tribunal while passing the earlier award dated 6.4.1994 (supra). He had worked continuously as a Gardner till the date of passing of the order by which his services were retrenched i.e. in 1995. However, before passing of the order dated 26.12.1995 the petitioner had already declared the respondent-workman entitled to regular pay scale from 1979 and was thus, required to be treated as a regularly appointed Gardner. The notice treats him as a daily wager thus, the notice itself goes contrary to the earlier award dated 6.4.1994 which has already been upheld by the High Court.
6. In view thereof, the entire exercise conducted by the petitioner as against the concerned workman is liable to be held to be illegal and goes contrary to the provisions of Section 25-F of the Act of 1947. No retrenchment proceedings could have been undertaken treating the respondent as a daily wager once the Award has already been passed holding him a regular Gardner. Thus, the award passed by the Judge, labour Court dated 19.4.2005 does not warrant interference.
7. Before I close the proceedings, the argument of the learned Counsel for the petitioner on res-judicata alleging that in the earlier proceedings also the workman had taken up the matter relating to his termination and a fresh dispute could not have been raised, is also examined. Copy of the Award dated 6.4.1994 passed by the Industrial Tribunal, Bharatpur was handed over during the course of arguments and from the perusal thereof, this (Downloaded on 30/08/2019 at 09:23:04 PM) (5 of 6) [CW-7359/2005] Court finds that the dispute referred to the Industrial Tribunal, Bharatpur which was adjudicated vide Award dated 6.4.1995 was as under:-
"D;k fodkl vf/kdkjh] uncbZ iapk;r lfefr] uncbZ ftyk Hkjriqj }kjk muds Jfed Jh izgykn iq= jsorh izlkn ¼ftldk izfrfuf/kRo bl fookn esa Jh vks-ih- tSu] egkea=h] Hkjriqj ftyk iapk;r deZpkjh la?k] }kjk fd;k x;k gS½ tks ckxoku ds in ij fu;kstdx.k ds ;gk¡ dk;Zjr gS] dks ckxoku ds in ij fu;fer djuk ;k fu;fer osru J`a[ky nsuk mfpr ,oa oS/k gS\ ;fn ugha rks Jfed fdl jkgr dks ikus dk vf/kdkjh gS\ "
While the dispute raised in the present Award by the workman which was referred to the labour Court was as under:-
"D;k fodkl vf/kdkjh] uncbZ }kjk muds Jfed izgykn iq= Jh nsorh izlkn dh fnukad 26-12-1995 ls lsokeqfDr fd;k tkuk mfpr ,oa oS/k gS\ ;fn ugha rks fQj Jfed i{k fdl jkgr dks ikus dk vf/kdkjh gS\ "
8. From the perusal of both the disputes referred, it is apparent that both of them are of different nature and have been accordingly dealt with differently and independently of each other by the Industrial Tribunal and the labour Court separately.
9. In view thereof, the submission of Counsel for the petitioner that present proceedings are hit by res-judicata is also not made out.
10. Having noticed above, this Court finds that the proceedings initiated by the petitioner-BDO, Panchayat Samiti, Nadbai against the workman appear to be countenanced to earlier award dated 6.4.1994 which has been upheld by the High Court. Once the Award has already been upheld by the High Court and the stay application was dismissed, there was no occasion for the BDO, Panchayat Samiti, Nadbai to terminate the services of the workman-respondent treating him as a daily wager after the Award has been passed by the Industrial Tribunal, Bharatpur. The (Downloaded on 30/08/2019 at 09:23:04 PM) (6 of 6) [CW-7359/2005] present proceedings have been further undertaken, which in the opinion of this Court, were wholly unnecessary and could have been avoided.
11. Having noticed above, I find that the proceedings initiated by the petitioner are wholly frivolous and the writ petition is accordingly dismissed.
12. The compliance of the Award shall be made positively within a period of one month. Amount already paid to the workman under Section 17-b of the Act of 1947 shall be adjusted.
(SANJEEV PRAKASH SHARMA),J NAVAL KISHOR /11 (Downloaded on 30/08/2019 at 09:23:04 PM) Powered by TCPDF (www.tcpdf.org)