The Headmaster vs Shri Vijay Shanker Vyas
2021 Latest Caselaw 15895 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Spl. Appl. Writ No. 282/2021

The Headmaster, Sardul Sports School, Bikaner Through The In- Charge, The District Education Officer (Secondary), Bikaner.

----Appellant Versus Shri Vijay Shanker Vyas S/o Shri Shanker Vyas, R/o Mundharon Ka Chowk, Opposite Side Pujare, Bikaner.

----Respondents

For Appellant(s) : Mr. Rishi Soni on behalf of Mr. Pankaj Sharma, AAG For Respondent(s) : Mr. Parmendra Bohra

HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON'BLE MR. JUSTICE SANDEEP MEHTA

Judgment

21/10/2021

This appeal is filed by the State of Rajasthan through its

Education Department, Bikaner against the order of the learned

Single Judge dated 02.12.2020 passed in Civil Writ Petition

No.935/2008.

The respondent No.1 workman raised an industrial dispute

claiming that his services were illegally terminated without

following due procedure and in breach of the provisions of Section

25F of the Industrial Disputes Act, 1947. The Labour Court

allowed the reference in part and directed reinstatement of the

workman, but without back wages by an award dated 26.10.2005.

This award was challenged by the appellant before the learned

Single Judge in writ petition filed nearly three years later.

Through out the pendency of the writ petition, no stay was

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granted. The writ petition was dismissed by the impugned

judgment dated 02.12.2020 on the ground that the workman had

established his case for breach of Section 25F of the Industrial

Disputes Act and that the employer had not led any evidence to

counter the claim of the workman.

Learned counsel for the appellant vehemently contended that

it was the primary duty of the workman to lead proper evidence in

support of his claim that he was illegally retrenched and that in a

calendar year immediately preceding his retrenchment, he had

actually worked for more than 240 days. Learned counsel

submitted that the workman failed to lead such evidence. He lastly

contended that reinstatement of the workman at this stage may

not be possible since vacant post may not be available at present.

The appeal was opposed by the learned counsel for the

workman. He supported the judgment of the learned Single

Judge.

Having heard learned counsel for the parties and having

perused the documents on record, we find that the workman had

entered in the witness box and led evidence in support of his case

and particularly contended that he worked with the Department

for more than 240 days in a calendar year. At the request of the

workman, the Labour Court had also directed the employer to

produce the muster roll and attendance register for the relevant

period, which the employer failed to produce without citing proper

reasons. That being the position, the Labour Court as well as the

learned Single Judge were perfectly justified in declaring the

retrenchment of the workman as illegal. The Labour Court did not

award any back wages for the period from the date of termination

till the award was passed. The contention that at this distant

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point of time, the vacancy may not be available, is also not a valid

argument. As noted by the learned Single Judge, through out the

pendency of the writ petition no stay was granted. In view of this,

the employer should have reinstated the workman. The passage

of time cannot be cited as a ground to refuse to carry out such

direction.

The appeal is dismissed.

                                   (SANDEEP MEHTA),J                                       (AKIL KURESHI),CJ


                                    54-MohitTak/-









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