Rajasthan High Court - Jodhpur
Mokheri Gram Sewa Sahkari Samiti & Anr vs Judge, I.T. Cum Lab. Court Jod., & Anr on 16 January, 2017
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B.Civil Writ Petition No. 4639 / 2014
1. Mokheri Gram Sewa Sahkari Samiti Limited, Mokheri,
Panchayat Samiti Phalodi, District Jodhpur through its
Chairman Shri Hira Lal Paliwal.
2. Shri Hira Lal Paliwal S/o Shri chaturbhuj ji, by caste Paliwal,
aged about 65 years, Chairman, Mokheri Gram Sewa Sahkari
Limited, Mokheri, Panchayat Samiti Phalodi, District Jodhpur
(Raj).
----Petitioner
Versus
1. Judge, Industrial Tribunal-cum-Labour Court, Jodhpur.
2. Manak Lal Paliwal S/o Shri Kani Ram through Shri Kishore
Kumar Vyas, Trade Unionist, Ralla Ram Building, High Court
Road, Jodhpur.
----Respondent
_____________________________________________________
For Petitioner(s) : Mr. SKM Vyas.
For Respondent(s) : Mr. Manoj Bohra.
_____________________________________________________
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment / Order 16/01/2017 The petitioner has preferred this writ petition making the following prayer:
"the impugned award dated 26.2.2014 (Annex.10) passed by Industrial Tribunal cum Labour Court, Jodhpur in case No.082/2009 may kindly be quashed and set aside.
Any other appropriate writ, order or direction, which this Hon'ble Court deems just and proper in the facts and circumstances of the case, may also be made in favour of the (2 of 5) [CW-4639/2014] petitioners".
The facts as noticed by this Court in the petition are that the petitioner was appointed as a salesman in the Society on 6.10.2001. The petitioners services were terminated on 7.12.2005. The respondent raised an industrial dispute against the termination order dated 7.12.2005 before the conciliation officer claiming that his termination order without following the provisions of Section 25-F and 25-G of the Industrial Disputes Act, 1947. On failure of such proceedings the reference was made by an award dated 23.3.2009, Labour Court undisputedly held that the petitioner remained in continue service from 6.10.2001 to 8.12.2005 which is proof of documentary evidence produced by the respondents. The only stand taken by the petitioner was that the petitioner was held guilty of embezzlement in a inquiry under section 57 of the Act of 2001 wide order dated 15/17.07.2009.
The appellate authority further confirmed the order passed under section 57 of the Act of 2001 passed on 15.07.2009, whereas the petitioner services were terminated on 8.12.2005.
The counsel for the petitioner has stated that since the conduct of the respondent was such therefore, he had lost confidence of petitioner and being held guilty of embezzlement was not entitled to restored back to service.
The counsel for the respondent stated that the order of termination dated 8.12.2005 did not have any bearing of order dated 15.07.2009 passed under section 57 of the Act of 2001.
Counsel for the respondent also argued that that the Learned Labour Court has categorically held that the order dated (3 of 5) [CW-4639/2014] 8.12.2005 was to be seen only with regard to violation of section 25-F and therefore no other consideration could have credited any impact on the adjudication on the dispute regard to the Learned Labour Court and the counsel for the respondent also relied upon the judgment Gauri Shanker Vs. State of Rajasthan in 2015(12) SCC 754.
The relevant portion of the judgment is:
16. The said finding of the Labour Court is re-
affirmed by the learned single Judge which also affirmed the finding that the action of the respondent- Department in terminating the services of the workman w.e.f. 1.4.1992 is a case of retrenchment as defined under Section 2(oo) of the Act as the termination of the services of the workman is otherwise for misconduct by the respondent- Department. Further, undisputedly the non-compliance of the mandatory requirements as provided under the provisions of Sections 25F clauses (a) and (b), 25G and 25H of the Act read with Rules 77 and 78 of the relevant Rajasthan Industrial Dispute Rules, 1958 has rendered the order of termination passed against the workman void ab initio in law. The Labour Court in the absence of any material evidence on record in justification of the case of the respondent-Department has rightly recorded the finding of fact and held that the order of termination passed against the workman is bad in law, the same being void ab initio in law it has passed an award for reinstatement of the workman in his post in exercise of its original jurisdiction under provision of Section 11 of the Act. The Labour Court has rightly followed the normal rule of reinstatement of the workman in his original post as it has found that the order of termination is void ab- initio in law for non compliance with the mandatory provisions of the Act referred to supra. However, the Labour Court is not correct in denying backwages without assigning any proper and valid reasons though the employer did not prove either its stringent financial conditions for denial of back wages or that workman has been gainfully employed during the period from the date of order of termination till the award was passed in favour of the workman except granting Rs.2,500/- as compensation for the suffering caused to the workman. The same is erroneously modified by the learned single Judge who recorded the finding of fact for the first time by holding that the workman is a (4 of 5) [CW-4639/2014] casual employee intermittently working in the respondent-Department. The learned single Judge of the High Court has exceeded his jurisdiction under Articles 226 and 227 of the Constitution of India as per the legal principles laid down by this Court in the case of Harjinder Singh (supra) wherein this Court has held thus:-
"17. Before concluding, we consider it necessary to observe that while exercising jurisdiction under Articles 226 and/or 227 of the Constitution in matters like the present one, the High Courts are duty bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to sub-serve the common good and also ensure that the workers get their dues. More than 41 years ago, Gajendragadkar, J, opined that "the concept of social and economic justice is a living concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the ideal of welfare State"- State of Mysore v. Workers of Gold Mines AIR 1958 SC
923."
The said principle has been reiterated by this Court in Jasmer Singh v. State Of Haryana & Anr. (Civil Appeal NO. 346 of 2015 decided on 13.1.2015).
17. Therefore, in view of the above said case, the learned single Judge in exercise of its powers under Articles 226 and 227 of the Constitution of India erroneously interfered with the award of reinstatement and future salary from the date of award till date of reinstatement as rightly passed by the Labour Court recording valid and cogent reasons in answer to the points of dispute holding that the workman has worked from 1.1.1987 to 1.4.1992 and that non-compliance of the mandatory requirements under Sections 25F, 25G and 25H of the Act by the respondent-Department rendered its action of termination of the services of the workman as void ab initio in law and instead the High Court erroneously awarded a compensation of Rs.1,50,000/- in lieu of reinstatement. The learned single Judge and the Division Bench under their supervisory jurisdiction should not have modified the award by awarding compensation in lieu of reinstatement which is (5 of 5) [CW-4639/2014] contrary to the well settled principles of law laid down in catena of cases by this Court.
On the basis of the arguments made by the counsel for both the parties and perusal of the award and record of the case along with precedent law sited, this Court is of the opinion that that the Learned Labour Court has rightly arrived at a conclusion that it was a case of clear violation of under Section 25-F of the 1947 and therefore, the termination order dated 8.12.2005 has been rightly quashed and set aside.
The learned Labour Court was right in awarding 30% of the back wages along with reinstatement. The proceedings held against the respondent under Section 57 of the Act of 2001 came into existence adversely only on 15.7.2009 onwards and therefore the same cannot be treated to having any impact upon the termination order under challenge before the learned Labour Court on 8.12.2005.
The writ petition is accordingly dismissed.
(DR. PUSHPENDRA SINGH BHATI)J. CK Mishra