Rajasthan High Court
Executive Engineer (Railway - O ... vs Bhanwar Singh S/O Hanuman Singh on 17 January, 2023
Bench: Ashok Kumar Gaur
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 6299/2020
Executive Engineer (Railway - O & M), K.T.P.S., Kota Through Its
Officer In Charge.
----Petitioner
Versus
Bhanwar Singh S/o Hanuman Singh, R/o Workshop Colony,
Tullapurak, Kota.
----Respondent
For Petitioner(s) : Mr.Vibhor Sharma, Adv.
For Respondent(s) : Mr.Amit Dadhich, Adv.
HON'BLE MR. JUSTICE ASHOK KUMAR GAUR
Order
17/01/2023
With the consent of learned counsel for the parties, the
present writ petition is disposed of finally, at this stage.
The instant writ petition has been filed by the petitioner-
employer challenging the impugned award dated 16.01.2020,
passed by the Labour Court & Industrial Tribunal, Kota, under
Section 10(1)(c) of the Industrial Disputes Act, 1947, whereby
claim of the respondent-workman has been allowed by declaring
termination of his services with effect from 04.09.1995 to be
illegal and bad in the eyes of law and further a lump-sum
compensation of Rs.1,50,000/- along-with interest @ 9% per
annum has been given in favour of the respondent-workman.
Learned counsel Mr.Vibhor Sharma, appears on behalf of the
petitioner, made following submissions while challenging the
impugned award:-
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1. The respondent-workman was initially employed on
01.09.1989 on daily wage basis with the present petitioner-
employer and his appointment was not on regular basis and as
such his services were terminated in 1992.
Learned counsel submitted that the respondent-workman
challenged dis-continuance of service by filing S.B.Civil Writ
Petition No.3896/1992 and this Court on 26.05.1992, passed an
ex-parte interim order directing the petitioner-employer not to
terminate services of the respondent-workman while allowing him
to continue in the service.
Learned counsel submitted that the said writ petition finally
came to be dismissed by this Court vide order dated 01.09.1995
on account of the respondent-workman having an alternative
remedy under Industrial Disputes Act, 1947 and as such liberty
was granted to the respondent-workman to approach the Labour
Court.
Learned counsel for the petitioner-employer submitted that
this Court while deciding the writ petition of the respondent-
workman also came to the conclusion that the respondent had not
disclosed the complete details in his writ petition but in the reply
filed by the petitioner, the date of retrenchment was given as
13.05.1992 and as such the prayer, which was made by the
respondent initially for regularization, was also not considered.
Learned counsel for the petitioner-employer submitted that
the reference, which was to be made to the Labour Court, was in
respect of termination of services of the respondent-workman with
effect from 13.05.1992, as whether such order of termination was
valid or not.
(3 of 7) [CW-6299/2020]
1. Learned counsel submitted that the Labour Court, while
allowing the claim of the petitioner, has not given any finding
about working of the respondent for 240 days prior to the date of
his termination.
2. Learned counsel submitted that if the respondent-workman
was allowed to work on account of an interim order passed by the
High Court, no such benefit could have been given by counting
working of the workmen on account of some interim order passed
by the Court.
3. Learned counsel submitted that the initial date of
appointment of the petitioner was in the year 1989 and his alleged
termination in the month of May 1992 was also not preceded by
working of 240 days and as such there was no violation of Section
25-F of the Industrial Disputes Act, 1947 (in short 'the Act of
1947'), as was alleged by the respondent-workman.
Learned counsel for the petitioner-employer has drawn
attention of this Court towards a document (Annex.8), where
details of Mustor Roll have been given and if May, 1992 is taken as
the date of termination of services of the respondent-workman in
preceding 240 days, he had only worked in the months of May,
June, October and November, 1991/May 1992.
4. Learned counsel submitted that if viewed from any angle, the
alleged termination of services of the respondent-workman could
not be said to be in violation of any law and as such the Labour
Court, while passing the award, has wrongly awarded a lump-sum
compensation to the respondent-workman.
5. Learned counsel for the petitioner-employer submitted that
any order passed by the Court or any act of the Court, will not
(4 of 7) [CW-6299/2020]
prejudice any person and as such counsel refers to the maxim of
equity, namely, actus curiae neminem gravabit and to support his
submission learned counsel refers to a judgment passed by the
Apex Court in the case of Mohammed Gazi Vs. State of M.P.
and Ors. reported in (2000) 4 SCC 342.
6. Learned counsel further submitted that in spite of producing
the complete documentary evidence before the Labour Court, the
perverse findings have been recorded in respect of working of the
respondent-workman and wrong conclusion has been drawn only
on the basis of statement of one witness from the Department,
who had not even admitted the actual working of the respondent-
workman for 240 days.
7. Learned counsel for the petitioner submitted that the
respondent-workman did not file any material or got any witness
examined, which proved the working of 240 days prior to alleged
termination either in May, 1992 or in the year 1995, after writ
petition of the respondent-workman was dismissed.
Per contra, learned counsel for the respondent-workman
submitted that this Court may not interfere in the findings, which
have been recorded by the Labour Court after considering the oral
and documentary evidence.
Learned counsel further submitted that the material, which
was placed before the Labour Court amply proved that while initial
termination of the respondent-workman was made in the year
1992, wherein no procedure was followed even though the
respondent-workman had served for more than three years.
Learned counsel submitted that working of the respondent-
workman on account of interim order passed by this Court and
thereafter if his services are terminated, the actual working of the
(5 of 7) [CW-6299/2020]
respondent-workman has been taken into account and since the
respondent-workman had completed 240 days prior to his
termination of services, the petitioners were required to comply
with Section 25-F of the Act of 1947.
Learned counsel submitted that if the dispute, which was
raised by the respondent-workman was subjudice before this
Court and interim protection was given, the petitioner-employer
could not have ignored the said period for giving the protection
and as such action of the petitioner has not been found in
consonance with law, as they did not comply with the provisions of
Section 25-F of the Act of 1947.
Learned counsel for the respondent-workman further
submitted that the Labour Court, in fact, has only granted lump-
sum compensation to the respondent-workman and since there is
no order of reinstatement and as such the petitioner-employer has
wrongly filed the present petition denying rightful claim to the
respondent-workman.
I have heard the submissions made by learned counsel for
the parties and perused the material available on record.
This Court finds that the alleged termination of services of
the respondent-workman had initially taken place in May, 1992
and the respondent-workman had approached the High Court by
filing writ petition and finally his writ petition was dismissed by
giving liberty to avail an alternative remedy under the Act of 1947.
This Court, in the first place, finds that term of reference for
treating the date of termination of services of the respondent-
workman as 04.09.1995 was not proper and if the dispute was in
respect of termination of services, which allegedly took place in
(6 of 7) [CW-6299/2020]
May, 1992, this Court is at loss to understand, as why the date of
termination has been taken as 04.09.1995.
This Court also finds that the date of termination of services
of the respondent-workman was not disputed by any of the parties
to the dispute and as such it would be too late in a day to say that
the said alleged date of termination of services of the respondent-
workman had taken place in 1992 or in the year 1995.
This Court finds substance in the submission of learned
counsel for the petitioner that the working of the respondent-
workman on account of an interim order passed by this Court was
not required to be considered for the purpose of complying with
Section 25-F of the Act of 1947.
This Court finds that if interim order granted by this Court
had permitted to continue in service, the same was in order to
comply with the order of the High Court and as such when the
petition was dismissed, the respondent-workman was accordingly
removed from service, as there was no stay order, which was
continuing after dismissal of the writ petition filed by the
respondent-workman.
This Court finds substance in the submission of learned
counsel for the petitioner that the Labour Court has not considered
the said aspect as the respondent-workman continued on the
strength of the stay order granted by this Court, however, this
Court also finds that no such serious plea was taken by the
petitioner-employer before the Court below for treating the correct
date of termination of respondent-workman.
This Court, however, finds that the respondent-workman was
employed initially somewhere in 1989 and his services were
(7 of 7) [CW-6299/2020]
terminated in May, 1992 and at least the respondent-workman
had worked for 3 years with the petitioner-employer and the
Labour Court has only awarded a lump-sum compensation of
Rs.1,50,000/-.
This Court, while exercising the power under Articles 226 and
227 of the Constitution of India, finds that the interest of justice
will be served that if the lump-sum amount of compensation,
which has been paid to the respondent-workman, may be upheld
by this Court.
This Court, however, finds that the award of interest, which
has been given to the respondent-workman will not be allowed to
be paid to him and he will be only allowed to get lump-sum
amount of Rs.1,50,000/- and accordingly award dated 16.01.2020
is upheld to the extent of awarding him a sum amount of
Rs.1,50,000.
This Court, before parting of the judgment, makes it clear
that the present order has been passed considering the peculiar
facts of this case and the same may not be cited as a precedent.
Accordingly, the present writ petition stands disposed of.
(ASHOK KUMAR GAUR), J
Monika/34
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