Rajasthan High Court - Jaipur
Uco Bank And Anr vs Narendra Kumar Sharma on 9 January, 2013
Author: Ajay Rastogi
Bench: Ajay Rastogi
In the High Court of Judicature for Rajasthan Jaipur Bench, Jaipur O R D E R D.B. Special Appeal (Writ) No.1551/2012 In S.B. Civil Writ Petition No.6703/2007 UCO Bank & Anr. Vs. Narendra Kumar Sharma Date :: 09.01.2013 Hon'ble Mr. Justice Ajay Rastogi Hon'ble Mr. Justice Jainendra Kumar Ranka Mr. Ram Kumar Sharma, for appellant. Mr. Manoj Pareek, for respondent.
As per office report, there is delay in filing instant appeal. Taking note of the contents of the application U/s 5 of Limitation Act duly supported by an affidavit we are satisfied that the delay deserves to be condoned and the application stands disposed of.
Instant intra-court appeal is almost the fourth round of litigation which has dragged the poor workman upto the Division Bench of this Court. The brief history of the case discloses that the respondent workman was initially engaged way back on 18.01.1985 as a casual labour and admittedly after completion of 240 days in the preceding 12 months his services came to be retrenched without due compliance of mandate of Sec.25F of Industrial Disputes Act,1947 (Act,1947) vide order dt.09.04.1987 and after the dispute being referred to the labour Court/Tribunal the award came to be passed on 18.08.1994 affirming the reference setting aside retrenchment and reinstatement of service with back wages. Pursuant thereto the workman was reinstated on 29.10.1994 and joined on 02.11.1994 but to his dismay again order of retrenchment came to be passed by the employer-appellant simultaneously on 02.11.1994. The second retrenchment was again the subject matter of challenge before the Tribunal through a reference made by the Appropriate Government and again award came to be passed on 27.12.1999 setting aside the retrenchment and reinstatement with full back wages and that came to be challenged before this Court and vide judgment dt.21.03.2007 while upholding reinstatement back wages were reduced to 50%. Pursuant thereto he was reinstated and again retrenched vide order dt.21.08.2007 and that was subject matter of challenge before the learned Single Judge.
The defence of the appellant before the learned Single Judge was that as he was reinstated in November,1994 the employer was under obligation to compute the period of service regarding compensation to which the workman was entitled for contemplated U/s 25F (A&B) of the Act,1947 only from the date of his reinstatement in November,1994 and not from the date of his initial appointment as casual labour which was 18.01.1985.
That contention was not accepted by the learned Single Judge and we uphold the same for the obvious reason that once he was reinstated in service it certainly relate back to the date of his initial appointment which was 18.01.1985 in the instant case and the employer was under obligation if at all was of the view that workman was to be retrenched his service was supposed to be counted taking note of his first appointment in service as casual labour and that being so, the computation made by the appellant to which the workman was entitled for in compliance of Sec.25F of the Act,1947 was bad and as a consequence whereof he is certainly entitled for reinstatement and this what the learned Single Judge observed while deciding the writ petition under order impugned.
As it reveals from the record that apart from writ petition filed by the employer-appellant the workman also filed the writ petition with the grievance that as per seniority of the casual labourer prepared by the appellant, workman's name finds place at serial no.4 and one Shiv Raj Tailor who was admittedly junior to him in the seniority & finds place at serial no.5 was regularized by the respondent vide order dt.17.10.2005. However, it was observed by the learned Single Judge while disposing of the writ petition filed by the workman that the employer may consider candidature of the workman also for regularization in view of the fact that the person who was junior to him has been regularized.
It is true that no appeal has been preferred by the workman but the fact still remain un-controverted that if the person who is lower in seniority has been regularized by the employer, there appears no justification in not taking note of the present workman for regularization in service as he is admittedly senior to Shiv Raj Tailor who was regularized in service as casual labour and the only defence coming forward is that Shiv Raj Tailor was regularized under the orders of the Court and not at the will of the employer. Be that as it may but if the fact remains that Shiv Raj Tailor has been regularized by the employer we find no justification as to why the present workman is not regularized to which he is entitled under the law.
After hearing counsel for the parties, we do not find any error being committed by the learned Single Judge under order impugned which may require interference but at the same time we modify the judgment impugned to the extent that the employer shall now take steps regarding regularization of the respondent-workman and may pass necessary orders at least from the date person junior to him stood regularized. Necessary Compliance be made within three months.
With this modification, the appeal stands disposed of.
(Jainendra Kumar Ranka), J. (Ajay Rastogi),J.
VS Shekhawat/-p.5 1551SAW12Jan9FnlDsps.doc Certificate - All corrections have been incorporated in the judgment/order being emailed/Vijay Singh Shekhawat/PAJW