Nanchi Lal S/O Shri Badri Narayan vs The Labour Court No. 1
2021 Latest Caselaw 6376 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

               D.B. Special Appeal Writ No. 1533/2019

                                       In

                S.B. Civil Writ Petition No. 4865/2013

Nanchi Lal S/o Shri Badri Narayan, Aged About 51 Years,
Resident Of Village Vatika, Tehsil Sanganer, District Jaipur
(Rajasthan).
                                                                   ----Appellant
                                   Versus
1.     The Labour Court No. 1, Jaipur City, Jaipur Through Its
       Presiding Officer.
2.     The Controller, N.R.S.C. Canteen, Swai Man Singh Medical
       College, Jawahal Lal Nehru Marg, Jaipur.
3.     The Commanding Officer, N.R.S.C. Canteen, Swai Man
       Singh Medical College, Jawahar Lal Nehru Marg, Jaipur.
4.     U.D.C. Cum Accountant, Swai Man Singh Medical College,
       Jawahar Lal Nehru Marg, Jaipur.
5.     Student Union, Swai Man Singh Medical College, Jawahar
       Lal Nehru Marg, Jaipur.
                                                                ----Respondents

For Appellant(s) : Mr. C.P. Sharma, Advocate For Respondent(s) : Mr. Avinash Choudhary, Advocate for Dr. Vibhuti Bhushan Sharma, Additional Advocate General

HON'BLE MR. JUSTICE MANINDRA MOHAN SHRIVASTAVA HON'BLE MR. JUSTICE VINOD KUMAR BHARWANI

Judgment / Order

11/11/2021

Heard.

By this appeal, the appellant has assailed the order dated

29.08.2019 passed by the Learned Single Judge as also the award

passed by the learned Labour Court No.1, Jaipur City, Jaipur (for

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short 'the Labour Court') by which on a reference made, the

retrenchment of the employee was held to be in accordance with

law.

Appellant-Nanchi Lal claiming to be employed on daily wage

basis in the Canteen run under the control of the employer, raised

a dispute alleging that he was illegally retrenched without paying

any retrenchment compensation. The dispute led to reference

made to the Labour Court. Before the Labour Court, the workman

filed statement of claim to which reply was also filed. However,

thereafter, the employer remained ex-parte. The workman in order

to establish his case that he worked for 240 days in one calendar

year and therefore, entitled to protection of Section 25F of the

Industrial Disputes Act, 1947 (hereinafter referred to as the ID

Act), not only led oral but also some of the documentary evidence

in support of his claim. Learned Labour Court, however, did not

accept the claim raising doubt with regard to the veracity of the

oral and documentary evidence and held that the retrenchment

was not illegal. Upon being dissatisfied with the award, a petition

came to be filed which too was dismissed, giving rise to this

appeal.

Learned counsel for the appellant-workman would argue that

on reference made, the appellant workman had submitted his

statement of claim to which a reply was made but thereafter, the

employer remained ex-parte. The workman led oral and

documentary evidence before the Labour Court which was not

controverted by the employer but the Labour Court ignoring un-

controverted piece of oral and documentary evidence, rejected the

claim and passed the order against the employee.

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Learned counsel for the respondent would submit that

learned Labour Court duly applied its mind to entire documentary

evidence led by the workman, though no evidence was led by the

employee, nor the documentary evidence led by the employee was

controverted, the Labour Court found that the evidence led by the

workman was not reliable to support the claim of the workman

that he had worked for 240 days during one calendar year so as to

qualify for protection against retrenchment under the provisions of

Section 25F of the ID Act. He would argue that the employee was

required to discharge burden by leading evidence by producing

witnesses who issued various certificates but no such evidence

was led. The workman did not even apply for production of the

records such as daily wage register, employment register etc.

These considerations weighed in the mind of the Labour Court and

award was passed which does not warrant any interference.

We have heard learned counsel for the parties and perused

the order of Learned Single Judge and also the award passed by

learned Labour Court and various documents including

documentary evidences.

The statement of claim of the appellant workman is to the

effect that he had continuously worked after having been initially

employed on daily wage basis until he was retrenched on

30.06.2007. His pleading was that he had remained engaged for

several years. Though, reply to the statement was filed, it is

evident position that thereafter, the employer did not participate in

the proceedings before the Labour Court and the matter was

eventually proceeded ex-parte.

In order to establish his claim, the workman not only led his

own oral evidence but also produced identity card dated

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03.03.1999(W4), certificate of NRSC, SMS Medical College, Jaipur

City, Jaipur (W5) and also an order passed by the Competent

Authority under the Minimum Wages Act, 1948 (W6).

At the first place, the oral evidence which was led by the

employee clearly stating regarding the period of engagement

including work done during the period of twelve calendar months

preceding his date of retrenchment was not controverted,

therefore, the oral evidence remained un-controverted.

The other certificates, which were produced before the

Labour Court, were never disputed by the employer. Therefore, in

these circumstances, it was not necessary for the workman to

seek examination of those who had issued the certificates.

The proceedings before the Labour Court, strictly speaking,

are not proceedings which are governed by the provisions of the

Civil Procedure Code. Further, strict rule of evidence with regard to

the proof of documents is also not applicable though general

principles are applicable.

It was not necessary for the workman to lead further

evidence in the absence of any dispute raised by the employer

with regard to the sanctity of the documents led in the evidence

by the workman. Moreover, the workman had in any case led his

own evidence which also remained un-controverted.

As far as the order passed by the Competent Authority under

the Minimum Wages Act is concerned, certainly that is not an

order to support a case that the employee had worked for 240

days in the preceding twelve months before his retrenchment,

nevertheless it establishes that the employee was getting wages

and was held entitled for that under the order passed by the

Competent Authority. This proves that on the date he had applied,

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he was in continuous engagement, though he was a daily wage

employee.

Learned counsel for the respondent submits that it was for

the employee to seek production of the records. He would further

submit that even before the Labour Court, they have filed their

reply that the register was not being maintained.

The contention is liable to be rejected on the threshold for

the reason that no stand was taken by the employer before the

Labour Court. They were proceeded ex-parte and they made no

efforts to controvert and dispute the oral and documentary

evidence led by the employee. Therefore, in proceedings before

this Court, they may not be permitted to come out with new case

and to reopen the matter to lead oral, documentary evidence

which they failed to produce despite opportunity having been

granted to them by the Labour Court.

In view of the above, we are of the considered view that the

award passed by the Labour Court is illegal, perverse and cannot

be sustained in law.

The Learned Single Judge while dismissing the writ petition

filed by the petitioner did not take into consideration the aspect of

perversity and illegality committed by the Labour Court while

passing the award.

In the result, the appeal is allowed and the order of the

learned Single Judge and that of the Labour Court is set aside and

it is held that the retrenchment of the workman-Nanchi Lal was

illegal and violation of Section 25F of the ID Act. The appellant-

workman will have to be reinstated.

As far as the wages of period during which he remained

unemployed is concerned, order on that aspect can be passed only

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upon recording of evidence with regard to gainful employment. For

that purpose, the appellant-workman shall move an application

before the Labour Court. The Labour Court shall hold an inquiry as

to whether he was employed during the period he remained out of

employment. If it is found that he was not employed, the

workman would be entitled to wages which he would have got but

for illegal retrenchment. The inquiry shall be conducted by the

Labour Court within the outer limit of four months from the date

of receipt of the application that may be filed by the appellant-

workman.

Appeal is accordingly allowed. No order as to costs.

(VINOD KUMAR BHARWANI),J (MANINDRA MOHAN SHRIVASTAVA),J

Mohita/50

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