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"Whether removal of workman Gauri Shankar son of Bhairuan (who has been represented by the General Secretary, Forest Labour Union, Tyagi Vatika Jailwell, Bikaner) by the Employer, Deputy Conservator of Forest, Chhattargarh, Bikaner is just and legal? If no, to what relief and amount the workman is entitled to?"

On receipt of the reference, both the parties filed their respective claim statements in justification of their respective cases. It is the case of the workman before the Labour Court that he has been appointed as a permanent workman in the permanent post of the respondent-Department and that he has worked from 1.1.1987 till his termination from 1.4.1992 and he has been paid his salary on daily wage basis every month mentioning his name as a daily wage earner in the muster roll. The service of the workman was retrenched by the respondent-Department allegedly because he did not agree to join the new Union as per the recommendation of the respondent- Department. It is contended on behalf of the workman that his removal from service by the respondent-Department is otherwise misconduct on the part of the respondent-Department and therefore, it amounts to retrenchment as defined under Section 2(oo) of the Act. Before removing the workman from his services the respondent-Department neither published any seniority list nor followed the rule of first come last go and thereby there is a blatant violation of Rules 77-78 of Rajasthan Industrial Disputes Rules, 1958. It is also further stated that before removing him from the services, the respondent neither issued one month's notice nor paid one month's wages nor obtained permission from the State Government to retrench him from the services and also did not pay retrenchment compensation as per Section 25F(b) of the Act to the workman. Further, it is contended that the act of the employer amounts to unfair labour practice as defined under Section 2(ra) and prohibited under Section 25T of the Act for which the respondent- Department is liable for penal action as provided under Section 25U of the Act. Therefore, the retrenchment of the workman is bad in law, as the same is in blatant violation of Sections 25F, 25G, 25H, 25T and 25U of the Act and therefore, the order of retrenchment is rendered void ab initio in law.

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 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:-