IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.5460/1995. : : Assistant Engineer, Public Works Department, Tonk Vs. Chandra Prakash Sharma & Anr. : : Date of Order 2.7.2009 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Mr. Hari Barath, Deputy Govt. Counsel for the State. Mr. Narendra Mishra for the respondent No.1.
Heard learned counsel for the parties.
2. This writ petition seeks to challenge the award of Labour Court dated 4.4.1995 by which termination of respondent-workman was declared illegal and he was held entitled to reinstatement with full back wages and continuity in service.
3. Contention of Shri Hari Barath, learned Deputy Government Counsel is that respondent was employed in the scheme of Rural Landless Employment Programme and National Rural Employment Programme. The scheme was funded by Government of India. When the scheme was discontinued, respondent also could not be continued in service. Labour Court was wholly unjustified in applying Section 25-F of Industrial Disputes Act when for the employees of such schemes the Government had vide order dated 21.5.1988 were exempted from the provisions of Industrial Disputes Act. It is also submitted that Labour Court was not at all justified in awarding full back wages to respondent-workman even though his services were terminated on 1.7.1987 and award was passed on 4.4.1995 during which period he did not render the service.
4. Shri Narendra Mishra, learned counsel for the respondent-workman opposed the writ petition and submitted that notification of exemption dated 21.5.1988 could be applied prospectively and that such notification could not be given effect at the time when the respondent-workman was appointed with petitioner and removed. There was no such notification issued then and the provisions of Industrial Disputes Act were, therefore, fully applicable to even those workman who were engaged under the scheme referred to above. Learned counsel also submitted that respondent-workman has been subsequently granted semi-permanent status by order of Assistant Engineer dated 21.12.1999 and has thereafter been conferred with permanent status by order of Executive Engineer, PWD, Tonk dated 12.10.2000 and has been granted all the benefits. It is submitted that respondent-workman has been paid back wages by petitioner on their own, therefore, the award with regard to back wages also cannot be modified. In such a situation, the writ petition may be dismissed.
5. Having heard learned counsel for the parties and perused the material on record, I find that Labour Court found the fact about working of respondent with the petitioner that he completed 20 days in a calendar year immediately preceding the date of retrenchment as proved. That being a finding of fact and not suffering from any such infirmity is not open to challenge. In so far as the reliance placed by petitioner on notification of Government dated 21.5.1988 is concerned, reasoning adopted by Labour Court that such notification would take prospectively effect and not retrospective effect, it just and logical sound. An exemption notification would only take prospective effect and the respondent-workman was removed much prior to issuance of such notification. The provisions of Industrial Disputes Act would apply to his case. Since this Court had stayed the operation of award and the petitoner-management had reinstated the petitioner in service after order passed by this Court under Section 17-B on 18.11.1996, the award to the extent of back wages needs to be modified paritcularly keeping in the view the fact working of respondent-workman was confined to only about 15 months and his removal was made on 1.7.1987 and award was passed on 4.4.1995. A long period of 22 years has gone by since then.
In the result, this writ petition is allowed in part. While other directions contained in the award is upheld, the direction of payment of back wages is set aside. However, it is made clear that if petitioner-management on its own has made payment of back wages to respondent-workman, this order would not entitle them to recover such amount.
(MOHAMMAD RAFIQ)J.
A.Arora/-
Item No.H/1.