Rajasthan High Court - Jodhpur
Barkatulla vs State And Ors (2025:Rj-Jd:17121) on 2 April, 2025
Author: Dinesh Mehta
Bench: Dinesh Mehta
[2025:RJ-JD:17121] HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 1920/2003 Barkatulla S/o Shri Mohd. Sayeed, R/o of House No.137, Kamla Nehru Nagar, Chopasani Road, Jodhpur.
----Petitioner Versus
1. The State of Rajasthan, through the Chief Engineer Public Health Engineering Department, Jaipur.
2. The Executive Engineer (Jodhpur Lift Canal), Division Public Health Engineering Department, Jodhpur.
3. The Assistant Engineer (Jodhpur Lift Canal), Sub Division Public Health Engineering Department, Pumping Station No.7, Gagadi.
4. The Judge, Industrial Disputes Tribunal and Labour Court, Jodhpur.
----Respondent
For Petitioner(s) : Mr. Sanjeet Purohit
For Respondent(s) : Mr. PS Chundawat
JUSTICE DINESH MEHTA
Order
02/04/2025
1. The petition in hands preferred under Article 226/227 of the Constitution of India calls in question the judgment and award dated 16.11.2002 passed by the learned Labour Court, Jodhpur, (hereinafter referred to as 'the Tribunal') whereby the reference made at the instance of the petitioner was decided against him.
2. According to the petitioner, he was appointed as a daily wage earner (helper) in the office of respondent No.3 on 01.12.1991 and he continued up to 15.10.1992. He further claimed that despite serving more than 240 days, the respondents had retrenched him without following the procedure as enunciated (Downloaded on 05/04/2025 at 04:30:20 PM) [2025:RJ-JD:17121] (2 of 9) [CW-1920/2003] under section 25F of the Industrial Dispute Act, 1947 (hereinafter referred to as the 'Act of 1947').
3. Upon being retrenched, the petitioner approached this Court by way of preferring a writ petition being S.B. Civil Writ Petition No.6263/1992, which was ultimately decided by this Court vide its order dated 03.04.1995 - the petitioner was relegated to take remedies under the Act of 1947 with a corresponding direction to the State Government to make a reference.
4. Pursuant to the order dated 03.04.1995, a reference came to be made by the State Government vide notification dated 11.11.1997 interalia asking whether the action of the respondents in retrenching the petitioner from services with effect from 15.10.1992 was legal and valid and if not then, the workman was entitled for what relief?
5. The petitioner filed a claim petition before the Tribunal and asserted that he was appointed as helper on 01.12.1991 and continuously worked with the respondents upto 15.10.1992 until he was retrenched by oral orders.
6. The petitioner claimed before the Tribunal that the respondents had violated the mandate of section 25F, 25G and 25H of the Act of 1947 and therefore, he was entitled for reinstatement.
7. The reply/response was furnished by the respondents interalia contending that the petitioner has not worked for more than 240 days and therefore, he cannot be treated to be a workman having continuously served the respondents for a period of one year. A plea was taken by the respondent-State that the (Downloaded on 05/04/2025 at 04:30:20 PM) [2025:RJ-JD:17121] (3 of 9) [CW-1920/2003] petitioner had worked only for 208 days (up to September, 1992), whereafter he had voluntarily stopped coming on duties.
8. The Tribunal scanned and considered the oral and ocular evidence on record and reached to the conclusion that the petitioner had failed to prove that he had worked for more than 240 days in a calender year. The Tribunal came to the conclusion that the petitioner's contention that he had worked for 304 days with the respondents is not correct and that he had worked for less than 240 days. For this purpose, the Tribunal relied on the copies of the muster-roll, which the petitioner had produced.
9. Though it was specifically pleaded by the petitioner that the respondents had not complied with the mandate of section 25G and 25H of the Act of 1947, the Tribunal did not consider argument of the petitioner interalia for the reason that the petitioner-workman had not completed 240 days with the respondents.
10. Mr. Purohit, learned counsel for the petitioner submitted that the petitioner had produced the copies of the muster-roll, which were available with him. He argued that apart from the documentary evidence, the petitioner had filed an affidavit and asserted that he had worked for 304 days.
11. Learned counsel argued that the petitioner is an illiterate workman and he could only produce the evidence which was available with him. He added that the respondents ought to have produced the muster-roll of the relevant period during which the petitioner had worked. He submitted that since the respondents have not placed the muster-roll, adverse inference ought to have been drawn. Mr. Purohit argued that Tribunal ought to have (Downloaded on 05/04/2025 at 04:30:20 PM) [2025:RJ-JD:17121] (4 of 9) [CW-1920/2003] decided the issue of continuous service for more than 240 days in petitioner's favour.
12. Having said so, Mr. Purohit, learned counsel for the petitioner alternatively argued that if this Court does not wish to enter into the factual dispute regarding the number of days, which the petitioner had worked, then petitioner's other arguments that the respondents have violated the mandatory provisions of section 25G and 25H ought to have been considered.
13. Inviting Court's attention towards the pleadings and the affidavit, learned counsel submitted that persons appointed after the petitioner namely Hukma Ram, Bhagwana Ram and Narayan Patel have been kept in services while the petitioner had been retrenched. He submitted that after the petitioner was retrenched, one Oma Ram was appointed by the respondents, which fact establishes that the respondents had violated the mandate of section 25G and 25H of the Act of 1947, which enjoins upon the employer to apply the principle of Last-In, First-Out (hereinafter referred to as 'LIFO').
14. Learned counsel further submitted that the Tribunal has erred in holding that it was a case of voluntary abandonment of services and not of retrenchment. He argued that the fact that petitioner had filed a writ petition in the year 1992 itself is enough to prove the petitioner's willingness to continue with the respondents.
15. Mr. Chundawat, learned counsel for the respondent-State on the other hand submitted that finding as arrived at by the Tribunal is infallible while maintaining that this Court cannot go into the (Downloaded on 05/04/2025 at 04:30:20 PM) [2025:RJ-JD:17121] (5 of 9) [CW-1920/2003] fact-finding inquiry about the number of days, which the petitioner had served.
16. In relation to petitioner's argument about violation of provisions of section 25G and 25H of the Act of 1947, leaned counsel submitted that the petitioner had voluntarily stopped coming to the services and therefore, it was a case of voluntary abandonment of service.
17. He argued that since the petitioner had not been retrenched, there was no occasion for the respondents to follow the principle of LIFO and to offer him appointment as provided under section 25G and 25H of the Act of 1947.
18. In relation to the petitioner's contention about breach of section 25G and 25H of the Act of 1947, it was contended by Mr. Chundawat that other employees except one Hukma Ram were appointed prior to the petitioner. He clarified that so far as Hukma Ram is concerned, he was appointed on 01.04.1992 in Rajiv Gandhi Lift Canal Sub-Division 18, in the office of Assistant Engineer (Jodhpur Lift Canal) Sub Division Public Health Engineering Department, Pumping Station No.7, Gagadi and not at a place where the petitioner had worked.
19. In rejoinder, Mr. Purohit, learned counsel for the petitioner submitted that maybe the Supervising Officer or the office are different but the petitioner so also other employees from whom the petitioner has claimed parity were of the same division as is evident from the muster-roll, which the petitioner had produced.
20. Heard learned counsel for the parties and perused the record.
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21. The issue as to whether the petitioner had completed 240 days, according to this Court, is a finding of fact arrived at by the Tribunal. Such a finding is based on the material and evidence adduced. In the present factual backdrop, this Court does not find any reason to unsettle the same.
22. This Court is of the considered view that the plea of the State that the petitioner had voluntarily abandoned the services is untenable in law. The fact that the petitioner immediately filed the writ petition in the year 1992, after being orally retrenched, clearly shows his readiness and willingness to serve the respondent. If an employee did not want to work, he would not have taken trouble to approach the High Court and file a writ petition. Respondents' plea that the petitioner had voluntarily abandoned the service is clearly untenable.
23. Adverting to petitioner's other contention in relation to violation of sections 25G and 25H of the Act of 1947, it is to be noted that One Hukma Ram was appointed on 01.04.1992 and was not retrenched while the petitioner who was appointed on 01.12.1991 was retrenched, resultantly, the person who had joined after the petitioner was allowed to continue in the work while the petitioner was retrenched. As such, there is clear breach of mandate of section 25G of the Act of 1947.
24. State's contention and the assertion made in the affidavit (para nos.6 and 7) cannot be given much credence inasmuch as the reply/written statement, which the respondent - State had filed made no mention of the fact that Bhagwana Ram, Oma Ram and Narayan Ram were appointed prior to the petitioner. A perusal of the reply filed by the respondent-State clearly shows that the (Downloaded on 05/04/2025 at 04:30:20 PM) [2025:RJ-JD:17121] (7 of 9) [CW-1920/2003] facts regarding Bhagwana Ram, Narayan Patel and Oma Ram as given in the affidavit have not been pleaded.
25. According to this Court, the affidavit in evidence is improvement of the assertions made in the counter or reply. The same cannot be given any credence. That apart, a perusal of the cross-examination of the officer who had appeared in the witness box on behalf of the State (Annex.6-page no.56) reveals that he had accepted the fact that he had copied his affidavit from an earlier affidavit and did not examine the record. His cross- examination also shows that he did not even have the access of the record.
26. Such being the position, this Court is of view that the evidence adduced by DW-1 is untrustworthy and liable to be discarded.
27. It is therefore apparent on record that Hukma Ram was appointed after the petitioner on 01.04.1992 and yet was kept in the service while the petitioner had been retrenched.
28. According to this Court, the Tribunal has seriously erred in not considering petitioner's contention regarding breach of section 25G of the Act of 1947 on the ground that the petitioner had not completed 240 days, hence provisions of section 25G of the Act of 1947 are not applicable.
29. If provisions of sections 25F, 25G and 25H are read in juxtaposition, there is a significant difference in the language used in section 25G and 25H of the Act of 1947 vis-a-vis the language used in section 25F of the Act of 1947. Section 25F pre-supposes 'continuous service of one year', which expression has been defined in section 25B of the Act of 1947 to mean 240 days in one (Downloaded on 05/04/2025 at 04:30:20 PM) [2025:RJ-JD:17121] (8 of 9) [CW-1920/2003] calendar year. Whereas, the expression of 'continuous service of one year' is completely absent in section 25G and 25H.
30. According to this Court, when the employee fails to establish that he had worked for 240 days but proves the violation of section 25G, he is entitled for reinstatement as has been held by Hon'ble the Supreme Court in the below referred judgments:-
(i) Central Bank of India Vs. S.Satyam & Ors. (Civil Appeal No.1811 of 1992), decided on July 31, 1996, reported in (1996) 5 SCC 419;
(ii) Regional Manager, SBI Vs. Rakesh Kumar Tiwari (Civil Appeals No.7 of 2006), decided on January 3, 2006, reported in (2006) 1 SCC 530;
(iii) Samishta Dube Vs. City Board, Etawah & Anrs.
(Civil Appeal No.1279 of 1999), decided on February 26, 1999, reported in (1999) 3 SCC 14;
(iv) Bhogpur Cooperative Sugar Mills Ltd. Vs. Harmesh Kumar (Civil Appeal No.4771 of 2006), decided on November 10, 2006, reported in (2006) 13 SCC 28;
(v) Jaipur Development Authority Vs. Ram Sahai & Anrs. (Civil Appeal No.4626 of 2006), decided on October 31, 2006, reported in (2006) 11 SCC 684;
31. Consequently, the writ petition is allowed. It is held that the petitioner's retrenchment was illegal and contrary to the provisions of section 25G of the Act of 1947. Judgment and Award of the Tribunal dated 16.11.2002 is, therefore, set aside.
32. Considering that a period of more than 33 years has passed since the petitioner had been retrenched, instead of passing an order of reinstatement, this Court deems it appropriate to compensate the petitioner by way of a lumpsum. (Downloaded on 05/04/2025 at 04:30:20 PM)
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33. Learned counsel for the petitioner at this juncture submitted that a lumpsum compensation to the tune of ₹5,00,000/- be awarded with which his client would be satisfied, as he wants to buy peace instead of working as a labourer at this matured age. He relied upon judgment of Hon'ble the Supreme Court rendered in the case of B.S.N.L. Vs. Bhurumal decided on 11.12.2013 reported in (AIR 2014 SCW 258) and submitted that petitioner be paid atleast Rupees 5 lacs as a lumpsum compensation having regard to inflation; (because in the year 2013, Hon'ble the Supreme Court has awarded lumpsum compensation of ₹3,00,000/-.
34. Having heard learned counsel for the parties and upon considering the judgment of Hon'ble the Supreme Court rendered in the case of B.S.N.L. Vs. Bhurumal (supra) and the ever increasing inflation, this Court is of the view that it would be appropriate to award the petitioner a lumpsum compensation to the tune of Rs.4,00,000/- to meet the ends of justice.
35. It shall be required of the respondent-State to pay the amount of Rs.4,00,000/- to the petitioner on or before 30.06.2025. In case, the amount is not paid by 30.06.2025, it shall carry interest @8% per annum from the date of the order instant.
(DINESH MEHTA),J 1-raksha/-
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