Rajasthan High Court - Jaipur
Registrar Maharashi Dayanand S vs The Learned Labour Court & Ind on 19 May, 2012
Author: Arun Mishra
Bench: Arun Mishra
D.B. CIVIL SPECIAL APPEAL (WRIT) NO.305/2012 Registrar, Maharishi Dayanand Saraswati University, Ajmer Vs. The Learned Labour Court & Industrial Tribunal & Anr. 19.5.2012 HON'BLE THE CHIEF JUSTICE MR. ARUN MISHRA HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr.Tarun Choudhary on behalf of Mr.Hanuman Choudhary for the appellant. Mr.Vigyan Shah for the respondent.
The appeal has been preferred questioning the legality of order dated 13.10.2011 passed by Single Bench in Civil Writ Petition No.8628/2004 upholding the award dated 27.8.2004 passed by labour court.
Case of the workman was that he was engaged on daily wage basis on 26.10.1990, however, his services were terminated on 1.8.1993 without making compliance of the provisions of Section 25-F of the Industrial Disputes Act, 1947. He had served continuously for more than 240 days in the preceding year. No notice was served upon him regarding retrenchment. Thus, the retrenchment was illegal and void. Labour court vide its award dated 27.8.2004 has directed reinstatement of the workman without back-wages. Aggrieved thereby, writ application was preferred before the Single Bench, which was dismissed by the impugned order.
Learned counsel appearing on behalf of the appellant has submitted that engagement of the workman was invalid as the same was made without following due procedure of law, as such, the same could not be said to be retrenchment.
We have heard learned counsel for the parties.
In Iftikar Ahmad Gauri Vs. Municipal Council Ambah, 1992(1) MPJR 104, the High Court of Madhya Pradesh while considering the question whether the employer can escape the liability of avoiding the statutory compliance by taking shelter of clause (bb) of Section 2(oo) of the Act (as amended by Act No.49 of 1984) and the fact that the appointments were invalid as the same were made without following the procedure laid down in M.P.Municipalities Act, 1961 and the Rules framed thereunder, held that even in cases of invalid appointments, it has to be examined in the light of Section 25-F of the Act; it cannot be contended that since the appointment of petitioner was not valid being violative of rules, it does not amount to retrenchment. The definition of retrenchment as given in the Act is wide enough and comprehensive to include all types of termination of services unless the termination fall within any of the exceptional categories mentioned therein. An invalid appointment is not one of the exceptions. Therefore, termination not falling under any of the exclusory clause of Section 2(oo) would amount to clear retrenchment, and for such termination pre-requisites of Section 25-F are necessary.
In Prabhudayal Jat Vs. Alwar, Sahkari Bhumi Vikas Bank Ltd.& Ors, 1991 Lab.I.C. 944 this Court while considering the question whether termination of service on the ground that the appointment of the workman was not valid would amount to retrenchment, held that there is no merit in the contention of the employer that since appointment of the workman was not valid, the termination of his services would not amount to retrenchment. The definition of retrenchment as contained in the Act is wide and comprehensive to include all types of terminations of service unless the termination falls within any of the exceptions mentioned therein. Since the case of workman is not covered by any of the exceptions contained in the definition of retrenchment, termination of his services would amount to retrenchment. With respect to the continuous service rendered by a workman this Court held that in order to earn continuous service what is required is that he should work under the same employer. It is not necessary that he should continue to do the work in the same capacity. If he is a workman as defined in the Act and the employer is the same, he earns the continuous service by working for 240 days within the period of twelve calendar months preceding the date of retrenchment.
In view of the aforesaid, we find that the submission raised by learned counsel appearing on behalf of the appellant is not tenable. Since the workman has rendered continuous service for more than 240 days in the preceding year and his services were terminated without making compliance of the provisions of Section 25-F of the Industrial Disputes Act, the same was illegal and void. Reinstatement has been ordered by the labour court without back-wages. We find that no ground to make interference is made out.
Resultantly, the appeal is dismissed. Civil Misc. Stay Application No.2402/2012 is also dismissed.
(MAHESH BHAGWATI),J. (ARUN MISHRA),C.J. Skant/-
All the corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Shashi Kant Gaur, P