Rajasthan High Court - Jaipur
Principal Medical And Health Officer vs Bharat Singh S/O Shri Banwari Lal ... on 30 January, 2023
Author: Ashok Kumar Gaur
Bench: Ashok Kumar Gaur
[2023/RJJP/000833]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 12803/2019
Principal Medical And Health Officer, General Hospital, Alwar
(Raj.)
----Petitioner
Versus
1. Bharat Singh S/o Shri Banwari Lal, R/o Narayanpur, Tehsil
Thanagaji, District Alwar (Raj.)
2. Anil Kumar Jain, Contractor, Jayaswal Bhawan Munshi,
Bag, Alwar.
----Respondents
For Petitioner(s) : Mr.Vivek Tyagi, Dy.GC
For Respondent(s) : Mr.Jitendra Kumar Sharma - for
respondent employee
HON'BLE MR. JUSTICE ASHOK KUMAR GAUR
Order
30/01/2023
REPORTABLE :
The instant writ petition has been filed by the petitioner- employer challenging the award dated 31st October, 2018, whereby the Industrial Tribunal has answered the reference made to it by the State Government with regard to termination of services of the respondent-employee.
(2) Learned counsel for the petitioner - employer submitted that the Labour Court, while answering the reference, has come to the conclusion that the respondent-employee was employed as Driver from December, 1999 to 30th November, 2002 with the present (Downloaded on 11/11/2023 at 03:59:22 PM) [2023/RJJP/000833] (2 of 11) [CW-12803/2019] petitioner and he was not an employee of the contractor, through whom, he was sent to the petitioner's Department. (3) Learned counsel for the petitioner submitted that benefit of continuity has been granted to the respondent-employee and he has also been awarded 25% backwages from the date of termination of service, i.e., 01st December, 2002. (4) Learned counsel for the petitioner has made following submissions, while assailing the award passed by the Labour Court:
(4.1) The Labour Court did not afford adequate opportunity to the petitioner to file reply to the statement of claim and further, no opportunity was granted to lead evidence and as such, the ex- parte proceedings were drawn and the right to defend has been violated by the Labour Court.
(4.2) The service of the respondent-employee was not taken by the petitioner-employer directly and it was only on account of the request being made to supply extra manpower, the respondent- employee came to be referred by the contractor and as such, the respondent-employee was not an employee/workman of the petitioner's organization.
(4.3) The respondent-workman did not lead any evidence showing himself to be an employee of the petitioner and no cogent evidence was produced either as an oral or documentary evidence (Downloaded on 11/11/2023 at 03:59:22 PM) [2023/RJJP/000833] (3 of 11) [CW-12803/2019] showing relationship of the respondent-employee with the present petitioner.
(4.4) The claim of the respondent-employee to get the status of the petitioner being principal employer was not proved by any evidence and as such, in absence of relationship of employer and worker, the award could not have been passed in favour of an employee.
(4.5) Assuming though not admitting, the respondent-employee had worked from December, 1999 to 30th November, 2002, reinstatement ought not to have been awarded and the Labour Court could have moulded the relief by giving reasonable compensation to the respondent-employee. (4.6) The continuity of service with 25% backwages is given to the respondent-employee as a final relief and the same is not as per the para-meters, laid down by the Apex Court from time to time, while considering the status and duration of the employment of an employee.
(4.7) The documents have been placed before this Court to show that request was made by the Secretary, Rajasthan Medicare Relief Society, Alwar to the contractor to supply one additional Driver on contract basis and further, the letter, received from the said contractor supplying manpower the respondent-employee, is also placed on record.
(Downloaded on 11/11/2023 at 03:59:22 PM) [2023/RJJP/000833] (4 of 11) [CW-12803/2019] (4.8) The documents conclusively proved that employment of the respondent-employee was not as a regular employee of the Department but he was only sponsored through a contractor and as such, the evidence placed before this Court clearly establishes no relationship of the petitioner with the respondent-employee as an employer and workman.
(5) PER CONTRA, learned counsel for the respondent-employee has made following submissions :
(5.1) A bare perusal of the award shows that several opportunities were given to the petitioner-employer to file reply to the statement of claim and in spite of such opportunities granted on various dates, when no reply was filed, the Labour Court has accordingly proceeded in the matter to decide claim of the respondent-employee.
(5.2) The right to lead evidence was also not availed by the petitioner-employer and as such, the additional documents, which have been placed along with this writ petition for consideration by this Court, may not be looked into, as the petitioner-employer has not availed the said right before appropriate Forum and this Court, under Articles 226 and 227 of the Constitution of India, may not appreciate the facts, which were never pleaded and proved before the Court below.
(5.3) The petitioner-employer led its documentary and oral evidence before the Court below and on the basis of such (Downloaded on 11/11/2023 at 03:59:22 PM) [2023/RJJP/000833] (5 of 11) [CW-12803/2019] evidence, the Labour Court has rightly passed the award in favour of the respondent-employee.
(5.4) The retrenchment of the respondent-employee was found contrary to the provisions contained in Sections 25F, 25G and 25H of the Industrial Disputes Act, 1947 (for short "the Act of 1947") and Rule 77 of the Industrial Disputes (Central) Rules, 1957 (for short "the Rules of 1957") and as such, the reinstatement was the only consequence to be followed and by the same has accordingly been passed by the Labour Court. (5.5) The Apex Court in the case of Jitubha Khansangji Jadeja Vs. Kutchh District Panchayat (Civil Appeal No.6890/2022) has laid down the law that in case, the retrenchment is found to be violative of Section 25F of the Act of 1947, the same should result into reinstatement of an employee and working for a shorter duration, is not a ground to deny reinstatement. (6) Learned counsel for the respondent-employee further places reliance on the judgment passed by the Apex Court in the case of Armed Forces Ex Officers Multi Services Cooperative Society Ltd. Vs. Rashtriya Mazdoor Sangh (INTUC) (2022 LawSuit (SC) 941) as well as on the judgment passed by the Division Bench of this Court in the case of Mahershi Dayanand Saraswati Vs. Labour Court Cum Industrial Tribunal & Anr.
(2016 (150) FLR 529).
(Downloaded on 11/11/2023 at 03:59:22 PM) [2023/RJJP/000833] (6 of 11) [CW-12803/2019] (7) Learned counsel for the respondent-employee further submitted that under Article 226 of the Constitution of India, the petitioner-employer cannot take a new plea and as such, learned counsel referred to the judgment of the Apex Court in the case of Bachan Singh & Ors. Vs. Gauri Shankar Agarwal & Ors. (1971 AIR (SC) 1531).
(8) I have considered the submissions made by learned counsel for the parties and perused the material available on record. (9) This Court has gone through the record, received from the Labour Court and finds that after issuing the notices by the Labour Court, on reference being made to it, time was granted to the petitioner-employer to file reply to the statement of claim. The various order-sheet, starting from 13th June, 2006 to 09th September, 2009, shows that the petitioner-employer sought time, at least, on 13 occasions to file reply to the statement of claim and finally, the Industrial Tribunal, on 09 th September, 2009, closed the petitioner-employer to file reply as several opportunities were already granted.
(10) This Court finds that the manner, in which, the case was dealt with by the Department or by its authorised officer, shows sheer negligence and irresponsibility in defending the case before the Labour Court.
(11) This Court is at loss to understand as when the counsel was appointed on behalf of the Department-petitioner and time was (Downloaded on 11/11/2023 at 03:59:22 PM) [2023/RJJP/000833] (7 of 11) [CW-12803/2019] granted to file reply but after availing several opportunities, reply is not filed, the proceedings in the Labour Court cannot wait for indefinite time for filing reply by the petitioner-employer. (12) This Court finds that in the instant case, the Authorities, who were responsible to file reply, should have taken disciplinary action against the Officer Incharge, who did not instruct his lawyer to file reply and no effective steps were taken to defend the case. (13) This Court can take a judicial notice of such fact as this practice is prevalent in the Government Departments not to defend the case in proper manner. This Court finds that the Courts, if issue notices to the parties and in spite of service, if no reply is filed, the Court has to proceed further and has to decide the case. Nevertheless, the responsibility of the officers, who are appointed as Officer Incharge, should be fixed by the Administrative Head of the Department and even in a given case, the disciplinary proceedings should be initiated if they fail to perform their duties in proper manner.
(14) The practice, adopted by the different Officer Incharge reflects total indifference towards the duty, which is assigned on them to defend the case in the Courts of law.
(15) The present case is a classic example as how the Department has conducted its case before the Labour Court. (Downloaded on 11/11/2023 at 03:59:22 PM) [2023/RJJP/000833] (8 of 11) [CW-12803/2019] (16) This Court is primarily required to see as whether the award, passed by the Labour Court suffers from any legal infirmity or the same is in consonance with the principles and parameters, laid by the Apex Court.
(17) This Court finds that the petitioner-employer, by way of producing two documents before this Court, now wants to build-up a case that employment of the respondent-employee was through the contractor and as such, he was not employed by the petitioner-employer directly by any regular method or by inviting applications. This Court finds that such kind of plea will be too late in a day to entertain that the respondent was not their employee and he was employed through a contractor.
(18) This Court further, after going through the proceedings of the Labour Court, finds that on 11.12.2013, an application was filed on behalf of the respondent-employee under Order 7 Rule 14 CPC and Order 13 Rule 1 CPC and as such, certain documents, which were in possession of the petitioner-employer, were sought by the respondent-employee.
(19) This Court finds that the counsel in the Industrial Tribunal, appearing for the petitioner, sought several dates for filing reply to the said application and even chance given on payment of cost was also not availed by the petitioner-employer by filing reply to the said application and finally the Court had allowed the application by giving direction to the petitioner-employer to produce the record.
(Downloaded on 11/11/2023 at 03:59:22 PM) [2023/RJJP/000833] (9 of 11) [CW-12803/2019] (20) The Labour Court on 28.03.2017 then had to pass an order of closing right of the petitioner-employer to file any document and as such, the evidence of the respondent-employee was recorded. (21) This Court finds that not only at first instance, the petitioner- employer or their Officers failed to file reply to the statement of claim in spite of giving several opportunities but at second stage also, they did not comply with the order for producing the documents and as such, the Court had to proceed ex-parte against them, as they did not lead any evidence. (22) This Court finds that the Industrial Tribunal, after considering the evidence led before it, has rightly come to conclusion that services of the respondent-employee were terminated without following any procedure of law and as such, violation of Section 25F, 25G & 25H of the Act of 1947, was found in the instant case. (23) This Court finds that the Labour Court, after considering the length of service of the respondent-employee, has awarded him reinstatement with continuity in services and 25% back wages has also been given.
(24) The submission made by learned counsel for the petitioner- employer that now this Court can look into the relevant evidence/documents, which have been filed before this Court at this juncture and claim of the respondent-employee may not be accepted, this Court finds that the Apex Court in the case of Bachan Singh & Ors. (supra) has considered the said aspect of (Downloaded on 11/11/2023 at 03:59:22 PM) [2023/RJJP/000833] (10 of 11) [CW-12803/2019] entertaining the new plea in the writ petition and the same has not been approved by the Apex Court. This Court finds that though the issue before the Apex Court was in respect of certain contentions, which were raised in respect of findings of the Board of Revenue, however, the plea which was raised before the High Court was not found to be justified by the Apex Court in the said case.
(25) The contention of learned counsel for the petitioner-employer that the respondent-employee had only worked for about 3 years and as such, reinstatement should not have been an automatic result, this Court finds that the Apex Court in the case of Jeetubha Khansangji Jadeja (supra) has laid down the law that if termination of a workman is in violation of provisions of the of Act of 1947 and if there is no fault of the employee and the matter is being dragged by the employer for a considerable period then in such case, reinstatement should be a proper relief to the employee and not lump-sum compensation.
(26) This Court, in view of the law laid down by the Apex Court in the case of Jeetubha Khansangji Jadeja (supra), finds that the Labour Court has not committed any error in passing the award and accordingly, this Court finds that the award does not require any interference.
(27) This Court, before parting with the judgment, would like to direct the Secretary of the Administrative Department i.e. Medical & Health Department to take disciplinary action against the person (Downloaded on 11/11/2023 at 03:59:22 PM) [2023/RJJP/000833] (11 of 11) [CW-12803/2019] concerned, who was responsible in not conducting the case in the proper manner before the Labour Court and if he is found guilty, suitable action be taken against him by punishing him. (28) The said enquiry be conducted and concluded by the Department within a period of two months and report of the same be placed before this Court for compliance.
(29) Accordingly, the present writ petition stands dismissed.
(ASHOK KUMAR GAUR),J Preeti Asopa/10 (Downloaded on 11/11/2023 at 03:59:22 PM) Powered by TCPDF (www.tcpdf.org)