State And Anr vs Bhanwar Lal And Anr
2023 Latest Caselaw 48 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 2541/2006

1. State of Rajasthan through Director, Ayurved Department, Ajmer.

2. District Ayurved Officer, Churu.

----Petitioners Versus

1. Bhanwar Lal son of Shri Jaidev Mali resident of Nehru Mohalla, Ramgarh Shekhawati District Sikar through Mahamantri, Harijan Rastriya Jal Majdoor Sangh (Congress), Churu.

2. The Judge, Labour and Industrial Tribunal, Bikaner.

----Respondents

For Petitioner(s) : Mr. Mehardeen Mehar, Dy Govt.

                               Counsel
For Respondent(s)        :     Mr. R.S. Saluja



            HON'BLE MS. JUSTICE REKHA BORANA

                                Judgment

03rd January, 2023

At the outset, it is relevant to mention that the present is a

matter wherein specific concealments and incorrect statements

have been made on oath by the respondent-workman before

learned Labour Court as well as this Court. On the same hand, it is

also a case of serious lacunas on behalf of the petitioner-

Department.

The brief facts of the case are as under :

The respondent-workman preferred a claim petition before

the Labour Court with the avements that he was appointed as

Attendant (Class IV employee) with the respondent-Department

on 14.01.1977 and continued to work as such till the year 1994.

(2 of 9) [CW-2541/2006]

In the year 1994, he went on leave for a week due to his medical

conditions and remained on leave till 08.09.1994. On 09.09.1994,

he marked his presence back on duty. But just to harass him, a

sudden inspection was made by the Director wherein he was

reported to be absent from duties and therefore, was suspended

vide order dated 26.09.1994. Subsequently, the said suspension

order was revoked vide order dated 20.10.1995 and the

respondent-workman was held entitled for all consequential

benefits. During his suspension period, due to duress, he

preferred an application which was accepted dehors the rules and

his services were terminated w.e.f. 14.08.1995. The said

termination was challenged on the ground of the same being in

contravention to Rule 25F & N of the Industrial Disputes Act, 1947

(for short 'the Act of 1947').

The case of the petitioner-Department before the Labour

Court was that there was no retrenchment by the Department

rather the workman himself preferred an application dated

14.08.1995 for resignation and the said application was accepted

w.e.f. 14.08.1995 vide order dated 23.08.1995. It was also

submitted that after his resignation, the workman contested the

election of municipality from Ward No.14 of Shekhawati, District

Sikar. The entry regarding acceptance of his resignation was even

made in his service record. Therefore, there was no case of

retrenchment as alleged by the workman. It was a specific case of

wilful resignation and the same having been accepted once, the

workman was not entitled for any service benefit.

On the basis of the pleadings, evidence and after hearing the

parties, learned Labour Court proceeded on to allow the claim

(3 of 9) [CW-2541/2006]

petition as preferred by the respondent-workman holding the

retrenchment dated 14.08.1995 of the workman to be illegal and

directed for his reinstatement with compensation of Rs.2,500/-.

Against the said award dated 23.08.2005 passed by the Labour

Court, present writ petition has been preferred.

Learned counsel appearing for the petitioner-Department

submitted that it was a complete case of concealment and wrong

facts being stated by the workman before the Labour court. The

workman completely concealed the fact of his having preferred an

application for resignation and the same having been accepted by

the Department. The workman completely denied the fact of

having contested the municipal elections before the Labour Court

which also is a total incorrect fact stated on oath by him while

deposing before the Labour Court. Learned counsel further

submitted that the order dated 20.10.1995 was nothing more than

an order to end up the disciplinary proceedings which were

initiated against the workman by the Department.

Per contra, learned counsel appearing for the respondent

submitted that whole story of the workman applying for

resignation and the same having been accepted by the

Department is totally false. Had there being any such application

and any subsequent order of acceptance, the same would have

been placed before the Labour Court and in absence of any such

document, the Labour Court was right in reaching to a conclusion

that the respondent-workman never applied for resignation.

Learned counsel further submitted that had there being any such

order of acceptance of resignation, there would have been no

need for disciplinary authority to pass the order dated 20.10.1995

(4 of 9) [CW-2541/2006]

whereby the order dated 14.08.1995 has been withdrawn and the

workman had been held to be entitled for all consequential

benefits.

At the stage of hearing on the interim application, keeping

into consideration the contrary stands being taken by the

respondent-workman as well as the new documents placed on

record by the petitioner-Department, this Court vide orders dated

12.07.2011, 02.08.2011 and 23.08.2011 had called for original

record of the Conciliation Officer as well as the Labour Court.

Parallelly the workman was also directed to file a specific affidavit

as to whether he had preferred the application dated 14.08.1995

or not and whether he had contested the municipal election or

not.

In response, an affidavit was filed by the respondent-

workman and in the said affidavit he admitted that he contested

the municipal election during his period of suspension. So far as

the fact of his having preferred the application dated 14.08.1995

is concerned, no specific statement regarding the same was made

in the affidavit.

Heard learned counsel for the parties and perused the

material available on record.

From a perusal of the record as well as the specific facts

mentioned above, it is clear that the respondent-workman

specifically concealed before the Labour Court the facts of his

having moved an application for resignation and his having

contested the municipal election. Even in his cross-examination,

he specifically denied the fact of his having tendering the

resignation as well as contesting the municipal election.

(5 of 9) [CW-2541/2006]

For quick reference the cross-examination of the respondent-

workman recorded before the Labour Court on 31.03.2005 is

reproduced here under :

"21-03-05 "kiFk fnykbZ xbZ & eSaus "kiFk i= i<+dj le>dj gLrk{kj fd;s gSA esjh fu;qfDr frFkh 14-1-77 gSA eq>s vkilh erHksn ds dkj.k Suspend fd;k FkkA eSaus jkex< uxjikfydk dk pquko ugha yM+kA eSaus ftyk vk;qosZn vf/kdkjh ls cnrehth dk O;ogkj ugha fd;kA esjk O;ogkj larks'ktud jgk] bl ckcr izek.k i= Hkh fn;k Fkk rFkk eq>s cgky Hkh dj fn;k FkkA eSaus ftyk vk;qosZn vf/kdkjh dks R;kxi= ugha fn;k esjh gLrfyfi Hkh ugha gSA ;g xyr gS fd Suspension period esa eSus R;kxi= fn;k gksA esjs ls feyhHkxr ls [kkyh dkxt ij gLrk{kj fy;s FksA es rks pquko esa [kM+k gh ugha gqvkA iqu% ijh{k.k & "kqU;"

The fact that the respondent-workman tendered his

resignation and contested the municipal election after his

resignation is even evident from the letter dated 12.09.1995

(Annexure-8) whereby it has been specifically stated that he had

tendered his resignation earlier because of some family problems

and now he wants to join duties again. The fact of having moved

the application dated 12.09.1995 and its contents have not been

denied by the respondent-workman. The contents of the

application dated 12.09.1995 are reproduced here under :

"lsokesa] Jh eku thyk vk;qosZn v/khdkjh thyk vk;qosZn dk;kZy;

pq:

         fo'k; %&          M;wVh Tokbu djus ds leU/k esaA


                                               (6 of 9)                       [CW-2541/2006]

egksn;] uez fuosnu gS fd eSaus dhlh dkj.k ?kjsyw ijhfLFkrh dkj.ko"k LrhQk ns nh;k Fkk ijUrq vc es M;wVh ij okihl vkuk pkgrk gqa vr% fnŒ [email protected]@95 dks thyk vk;qosZn dk;kZy; esa mifLFkr gks x;k gqa vr% vthZ Lohdkj dj M;wVh ij ysus dh d`ik djsA vkidh vrh d`ik gksxh izkFkhZ [email protected]@95 n% Hkaojyky ekyh "

The conclusion that can be drawn from the above facts is

that firstly, because of his absence from duty and misconduct, the

respondent-workman was suspended vide order dated

26.09.1994. A charge-sheet was served upon him and even an

inquiry was initiated. During the period of his suspension, he

moved an application and tendered his resignation on 14.08.1995

which was accepted by the Department vide order dated

23.08.1995 w.e.f. 14.08.1995. Soon after his applying for the

resignation, he contested the municipal election, the result of

which was declared on 28.08.1995 in which he lost. After having

lost in the election, he preferred an application dated 12.09.1995

with the submission that earlier, because of some domestic

reasons, he had tendered his resignation but now he again wants

to join his duty. No order was passed on his application and

meanwhile vide order dated 20.10.1995, the Disciplinary Officer

held his order of suspension to be bad and directed for payment of

his salary for the suspension period. Interestingly, the order dated

20.10.1995 speaks of withdrawal of the order dated 14.08.1995

terming it to be an order of suspension whereas there was no

order of suspension passed on 14.08.1995. The order of

(7 of 9) [CW-2541/2006]

suspension was of 26.09.1994 which evidently was not withdrawn

vide order dated 20.10.1995.

Even if it is assumed that the order dated 14.08.1995 was

sought to be revoked/withdrawn vide order dated 20.10.1995, the

same would be of not much consequence as infact there was no

order of suspension dated 14.08.1995 in existence. Therefore,

withdrawal of any order which was not in existence cannot be of

much relevance. To the most, it can be held that vide the said

order, the salary for the suspension period was directed to be paid

to the respondent-workman and the same has admittedly been

paid to him.

The issue now remains only as to whether after acceptance

of his resignation, the workman could have been directed to be

reinstated by the Labour Court terming the resignation to be a

retrenchment.

As it is clear from the above facts, the workman preferred

the application before the Labour Court on total incorrect facts and

even concealed the facts. There was a clear concealment of the

fact of having tendered resignation and contesting the municipal

election, the facts which were denied before the Labour Court and

specifically admitted before this Court. In the said scenario, this

Court is of the specific opinion that no indulgence in favour of a

workman who deposed on oath before the Court and submitted

total incorrect facts can be made. This Court is of the specific

opinion that the acceptance of the resignation of the workman

vide order dated 23.08.1995 w.e.f. 14.08.1995 cannot be held to

be a "retrenchment" in terms of Section 2(oo) of the Act of 1947.

Sub-clause (a) of Section 2(oo) specifically provides that voluntary

(8 of 9) [CW-2541/2006]

retirement of the workman would not fall in the definition of

retrenchment. Moreover, it is admitted on record that the

workman contested the municipal elections and in terms of Rule

244(1) of the Rajasthan Service Rules, 1951, the workman could

not have contested the same without having tendered his

resignation/compulsory retirement. Meaning thereby, the

respondent-workman, for the purpose of contesting the municipal

elections, tendered his resignation which was accepted by the

petitioner-Department w.e.f. the same date because of urgency

shown by the workman himself as he specifically prayed for the

resignation to be accepted w.e.f. the same dated i.e. 14.08.1995.

Further, it is also clear on record that the respondent-

workman preferred a claim at the first instance but withdrew the

same on 07.04.1997. After five years of withdrawal of the earlier

claim, he again preferred the present claim petition of which

reference was made to the Labour Court on 29.04.2002. It is clear

on record that although the pleadings were made, the application

dated 14.08.1995 as preferred by the respondent-workman, the

order dated 23.08.1995 whereby the said application was

accepted and the documents pertaining to the workman having

contested the election were not produced in evidence before

Labour Court by the petitioner-Department. All the said

documents have been placed before this Court annexing them

along with the present writ petition. Generally this Court would not

have entertained those documents but in the peculiar facts and

the circumstances of the case where the respondent workman

concealed those facts and documents before the Labour Court and

while deposing before the court on oath specifically denied those

(9 of 9) [CW-2541/2006]

facts, the said documents have been taken into consideration by

this Court.

In the case of Chand Mal Chayal Vs. State of Rajasthan

reported in AIR 2006 SC 3340, the Hon'ble Apex Court

specifically held that once the resignation is accepted, no jural

relationship remains between the employee and the employer and

the employee cannot claim for withdrawal of the resignation or

reinstatement on the post.

Therefore, in view of the specific findings of this Court that

there was no retrenchment of the respondent-workman, the

finding of the learned Labour Court that the same was in violation

of Section 25F & 25N of the Act of 1947, cannot be sustained.

In the result, the writ petition is allowed. The award dated

30.08.2005 passed by learned Labour Court, Bikaner is hereby

quashed and set aside. No order as to costs.

All pending applications stand disposed of.

(REKHA BORANA),J

84-Vij/-

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