Rajasthan High Court - Jodhpur
State Of ... vs Mohammed Hussain And Anr. ... on 22 January, 2025
Author: Dinesh Mehta
Bench: Dinesh Mehta
[2025:RJ-JD:4193]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 3058/2004
State of Rajasthan through Chief Account Officer, Command Area
Development, Indira Gandhi Nahar Pariyojana, Bikaner.
----Petitioner
Versus
1. Mohd. Hussain S/o Shri Hazi Gular Mohd. R/o Sitla Gate,
Bikaner since deceased through his legal representatives-
1/1. Smt. Saida Bano W/o Late Shri Mohd. Hussain Aged 62
years R/o Inside Shitla Gate, Bikaner.
1/2. Mohd. Ismail S/o Late Shri Mohd. Hussain Aged 47 years
R/o Inside Shitla Gate, Bikaner.
1/3. Mohd. Arif S/o Late Shri Mohd. Hussain Aged 44 years R/o
Inside Shitla Gate, Bikaner.
1/4. Heena Bano D/o Late Shri Mohd. Hussain W/o Shri Nasir
Hussain Aged 33 years R/o 7 E 32 Pawanpuri South, Bikaner.
2. Labour Court, Bikaner.
----Respondents
For Petitioner(s) : Mr. Arpit Samriya and
Mr. Ravindra Choudhary for
Mr. Nathu Singh Rathore, AAG
For Respondent(s) : Mr. Mahesh Joshi
JUSTICE DINESH MEHTA
Order
22/01/2025
1. The State has challenged the award dated 09.03.2004
passed by the learned Labour Court, Bikaner in Labour Case No.
34/2001 (titled as Mohd. Hussain vs. Chief Account Officer).
2. The facts appertain are that the respondent no. 1 - Mohd.
Hussain was appointed as a Driver on ad-hoc basis, in the office of
Chief Account Officer, Command Area Development, Indira Gandhi
Nahar Pariyojana, Bikaner on 14.03.1977.
3. Pursuant to an application for leave filed by the respondent-
workman, 45 days' leave was sanctioned by the competent
[2025:RJ-JD:4193] (2 of 10) [CW-3058/2004]
authority vide order dated 03.03.1980; the respondent-workman
applied for extension of leave on 15.05.1980 and left India in the
month of June, 1980. His leave (without pay) was sanctioned for
60 days upto 14.07.1980. The respondent-workman again applied
for extension of the leave and it was sanctioned upto 15.08.1980
by way of order dated 31.07.1980.
4. The respondent - workman yet again applied for extension
of leave from time to time (upto 31.03.1982) by way of sending
letters from Riyadh, Saudi Arabia.
5. The State did not extend his leave and since he did not
return, a show cause notice was issued on 27.11.1980 followed by
another notice dated 11.01.1982 calling upon the respondent-
workman to appear in person and explain the reasons for his
continuous absence from 16.08.1980. By way of said notice, the
respondent - workman was also asked as to why his services be
not terminated.
6. Even on receiving the notice aforesaid, the respondent -
workman neither filed any reply nor did he join the duties. The
Chief Accounts Officer, therefore, passed an order dated
24.02.1982 and terminated respondent's services w.e.f. afternoon
of 23.02.1982 while recording therein that since the respondent -
workman had not joined the duties, his services cannot be said to
be satisfactory.
7. It is to be noted that the respondent - workman firstly filed
a review petition dated 16.03.1982, which was rejected and then,
challenged the order of termination before the Rajasthan Civil
Services Appellate Tribunal (hereinafter referred to as 'the Service
Tribunal') by way of preferring an appeal (Appeal No. 510/1982).
[2025:RJ-JD:4193] (3 of 10) [CW-3058/2004]
8. The appeal so filed by the respondent-workman was rejected
by the Tribunal vide order dated 30.09.1985 by observing thus:-
"It is apparent that the appellant was granted
leave upto 15.8.80. He reported back on 15.3.82. No
leave was sanctioned for the intervene period. Merely
making of the application for extent of leave does not
mean that leave was granted. Leave cannot be
claimed as a matter of right and such cannot be
availed without prior sanction. Here in this case even
notices were served on the appellant to report duty
immediately as committed the appellant himself.
Even then he did not join only asked for further
extension. All these circumstances leave no doubt to
infer for the appointing authority to the appellant's
action was haughty and insolvent or atleast
unsatisfactory. Two alternatives were available with
the appointing authority i.e. either to take
disciplinary action or to issue order of termination
simplicitor after having for the work as
unsatisfactory. There is no bar for appointing
authority to resort to second alternate for the
appellant was employed absolutely on a temporary
basis and with the condition that his services could
be terminated at any time without any notice in case.
As such the termination cannot be said to punitive
(A.I.R. 1974 S.C. 120). The impugned order is of
course dated 24.02.82 but the services have been
terminated with either from afternoon on 23 rd Feb.,
1982 and as such cannot be said to be retrospective.
Thus there is not force in the appeal and
hereby dismissed."
9. The respondent - workman went in oblivion for 15 years and
thereafter, initiated conciliation proceedings and then raised an
industrial dispute. Consequently, a reference came to be made by
the State Government vide order dated 18.10.2000 before the
[2025:RJ-JD:4193] (4 of 10) [CW-3058/2004]
Labour Court, wherein three questions were referred - whether
the action of the workman in raising the industrial dispute after 16
years was valid/justified? and if yes, then employer's action of
terminating the workman from services w.e.f. 23.02.1982 was
valid or not? And if not, then to what relief the workman was
entitled to?
10. The respondent - workman filed a statement of claim and
tried to explain the delay (in raising the industrial dispute) by
stating that he had approached the Service Tribunal as advised by
his counsel and that though after dismissal of his appeal on
30.09.1985, he was advised to file a writ petition before the High
Court, but as he could not arrange for the counsel's fee, the order
dated 30.09.1985 could not be challenged before the High Court.
It was also stated that his counsel did not hand over/returned the
file, for which, remedy could not be availed. The respondent -
workman took a plea that as he had initiated the legal proceedings
in the year 1982 against his termination and had been pursuing
the same, it cannot be said that there was a delay in approaching
the Labour Court.
11. The statement of claim filed by the respondent was opposed
by the State by contending that it was the case of voluntary
abandonment of the services and, since the workman's application
for leave was rejected, he ought to have joined the duties. The
State also took a plea that the workman's termination was not a
retrenchment and therefore, the requirement of observance of
provisions of section 25F, 25G and 25H of the Industrial Disputes
Act, 1947 (hereinafter referred to as 'the Act of 1947') was not
necessary.
[2025:RJ-JD:4193] (5 of 10) [CW-3058/2004]
12. The Labour Court, however, allowed the claim filed by the
respondent - workman and answered the reference in his favour
by way of award dated 09.03.2004.
13. While allowing the reference, the Labour Court held that the
provisions of Limitation Act are not applicable qua the Act of 1947
and also concluded that the delay of 16 years cannot be said to be
unjustified.
14. Having observed so, the Labour Court proceeded to hold that
since there was non-compliance of mandate of section 25F, 25G
and 25H of the Act of 1947, respondent-workman's termination
was illegal.
Arguments by learned counsel for the petitioner:
15. Learned counsel for the petitioner submitted that the order
dated 09.03.2004, passed by the Labour Court is illegal, without
application of mind and dehors jurisdiction.
16. He argued that the Labour Court while passing the impugned
award completely failed to consider the fact that Service Tribunal
had already decided the matter vide order dated 30.09.1985 and
respondent - workman having not challenged the same, it has
attained the finality. Thus, the industrial dispute raised by the
respondent - workman was clearly barred by doctrine of res-
judicata.
17. Learned counsel further argued that the respondent -
workman has raised the industrial dispute after inordinate and
unexplained delay of 16 years and therefore, on account of the
unexplained delay, the Labour Court should not have allowed the
reference.
[2025:RJ-JD:4193] (6 of 10) [CW-3058/2004]
18. While reading the evidence on record, learned counsel
highlighted that the respondent - workman was employed on ad -
hoc basis and he did not join the services despite notices. He
submitted that it was not incumbent upon the employer - State to
observe the principles of retrenchment given under sections 25F,
25G and 25H of the Act of 1947, as they did not retrench the
respondent - workman.
Arguments by Mr. Joshi, learned counsel for the
Respondent-workman:
19. Mr. Joshi, learned counsel for the respondent-workman
contended that order of the Service Tribunal dated 30.09.1985
does not come in respondent-workman's way to raise the
industrial dispute before the Labour Court, as he was an ad-hoc
employee working under the state and thus, not amenable to
jurisdiction of Service Tribunal. He submitted that respondent-
workman on account of ignorance of law, has availed wrong
remedy and filed an appeal before Service Tribunal; since the
Service Tribunal has no jurisdiction qua the respondent-workman,
order of dismissal of appeal has no value in eye of law.
20. Learned counsel argued that since the provisions of
limitation act has no application over the Act of 1947, in spite of
the fact that industrial dispute was raised after 16 years of
termination, the same would have no impediment over his right to
pursue his cause before the Labour Court.
21. Mr. Joshi further contended that it was incumbent upon the
employer-State to hold a proper inquiry against the respondent-
workman before terminating his services, however neither proper
inquiry was conducted nor opportunity of hearing was given. Mr.
[2025:RJ-JD:4193] (7 of 10) [CW-3058/2004]
Joshi submitted that the order of termination was passed without
observing the requirements prior to retrenchment as enshrined
under sections 25F, 25G, 25H of the Act of 1947.
22. Heard learned counsel for the parties and perused the
record.
23. It is not in dispute that the appeal preferred against the
order of termination dated 24.02.1982 was rejected by the
Service Tribunal vide order dated 30.09.1985, that too on merit.
The Service Tribunal in no ambiguous terms had held that the
termination of the respondent-workman was justified, while
observing that since the respondent-workman was an ad-hoc
employee, no disciplinary proceedings was necessary, because the
order of recording of services not being satisfactory, was a
termination simpliciter for an ad-hoc employee.
24. Admittedly, the respondent-workman did not take any
remedy against the order dated 30.09.1985 passed by the learned
Service Tribunal and the same had attained finality. According to
this Court, in the face of the order dated 30.09.1985, whereby the
Service Tribunal had affirmed the order of termination dated
24.02.1982, the respondent-workman could not have raised any
industrial dispute, that too after an inordinate delay of 16 years.
The plea that after the decision of the Tribunal on 30.09.1985, he
tried to challenge the said order by way of filing writ petition, but
could not arrange for the fee of the counsel and other pleas were
nothing but lame excuses.
25. As a matter of fact, the respondent-workman woke up from
his slumber after 16 years and has raised the industrial dispute,
which according to this Court was per-se impermissible and barred
[2025:RJ-JD:4193] (8 of 10) [CW-3058/2004]
by the principle of res-judicata. The order of termination dated
24.02.1982 had been affirmed by the Service Tribunal.
26. A specific question as to whether raising dispute after 16
years was justified or not was referred, which issue has been
decided by the Labour Court cursorily by observing that the
provisions of Limitation Act are not applicable. Maybe, the
provisions of Limitation Act are not strictly applicable; but it
cannot be said as a rule that if the limitation is not prescribed for
a remedy, it can be availed after any period of time.
27. A litigant cannot wait for 16 years to challenge an order,
simply because no limitation has been provided for the remedy.
The Labour Court to that extent has wrongly decided this issue.
28. According to this Court, the remedy, which the respondent-
workman had taken after 16 years of termination, was barred by
delay and laches. This position of law has been settled by Hon'ble
the Supreme Court in the case of Assistant Engineer,
Rajasthan State Agriculture Marketing Board, Sub-Division,
Kota vs. Mohan Lal, reported in (2013) 14 SCC 543.
29. Moreso, the respondent-workman had challenged the order
of termination dated 24.02.1982 by way of preferring an appeal
and the said appeal was dismissed on 30.09.1985, while holding
that termination was justified. The reference made by the State so
also proceedings before the Labour Court were thus barred by the
principles of res-judicata. It is noteworthy that the Labour Court
though noticed such plea of the State, but failed to deal with it
and proceeded to allow the claim. The Labour Court has therefore,
committed a jurisdictional error.
[2025:RJ-JD:4193] (9 of 10) [CW-3058/2004]
30. So far as argument of Mr. Joshi, learned counsel for the
respondent-workman that the order of learned Service Tribunal
should not come in way of respondent-workman, as the appeal
was not maintainable before the Service Tribunal is concerned, the
same is also misconceived. A person having availed the remedy
and failed in such attempt, is estopped from taking a plea that he
had availed a wrong remedy. This Court hastens to add that in
light of the judgment in the case of Jeewan Das vs. State of
Rajasthan & Ors., reported in 1980 (1) RLR 718, even if a
workman is working with the State Government, the appeal is
maintainable before the Service Tribunal.
31. That apart, the Labour Court's conclusion that the State was
required to observe the provisions of sections 25F, 25G and 25H of
the Act of 1947 is erroneous. It was not at all the case of the
retrenchment; it was rather a case of bringing an end to the
respondent-workman's ad-hoc engagement on finding his services
to be unsatisfactory, as he had overstayed abroad and remained
on leave without any sanction.
32. The order dated 24.02.1982, whereby the workman's
services were terminated cannot be said to be a retrenchment. It
was an order of termination simplicitor, that too for the reasons
mentioned therein, namely the respondent-workman had failed to
join his services in spite of the notice given to him.
33. As an upshot of discussion foregoing, this Court has no
hesitation in holding that the Labour Court has seriously erred in
passing the award dated 09.03.2004 and setting aside the
termination order and directing the State to reinstate the
respondent-workman.
[2025:RJ-JD:4193] (10 of 10) [CW-3058/2004]
34. The Labour Court's observation that the State will be free to
conduct inquiry is absolutely illegal, as admittedly the respondent-
workman was an ad-hoc employee and Rajasthan Civil Services
(Classification, Control and Appeal) Rules, 1958 are not applicable.
35. The writ petition is, therefore, allowed.
36. Impugned award dated 09.03.2004 is hereby quashed and
set aside.
37. Stay application also stands disposed of, accordingly.
(DINESH MEHTA),J
3-Mak/-
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