Rajasthan High Court – Jodhpur
Barkatulla vs State And Ors (2025:Rj-Jd:17121) on 2 April, 2025
Author: Dinesh Mehta
Bench: Dinesh Mehta
[2025:RJ-JD:17121]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 1920/2003
Barkatulla S/o Shri Mohd. Sayeed, R/o of House No.137, Kamla
Nehru Nagar, Chopasani Road, Jodhpur.
—-Petitioner
Versus
1. The State of Rajasthan, through the Chief Engineer Public
Health Engineering Department, Jaipur.
2. The Executive Engineer (Jodhpur Lift Canal), Division Public
Health Engineering Department, Jodhpur.
3. The Assistant Engineer (Jodhpur Lift Canal), Sub Division
Public Health Engineering Department, Pumping Station No.7,
Gagadi.
4. The Judge, Industrial Disputes Tribunal and Labour Court,
Jodhpur.
----Respondent
For Petitioner(s) : Mr. Sanjeet Purohit
For Respondent(s) : Mr. PS Chundawat
JUSTICE DINESH MEHTA
Order
02/04/2025
1. The petition in hands preferred under Article 226/227 of the
Constitution of India calls in question the judgment and award
dated 16.11.2002 passed by the learned Labour Court, Jodhpur,
(hereinafter referred to as ‘the Tribunal’) whereby the reference
made at the instance of the petitioner was decided against him.
2. According to the petitioner, he was appointed as a daily wage
earner (helper) in the office of respondent No.3 on 01.12.1991
and he continued up to 15.10.1992. He further claimed that
despite serving more than 240 days, the respondents had
retrenched him without following the procedure as enunciated
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under section 25F of the Industrial Dispute Act, 1947 (hereinafter
referred to as the ‘Act of 1947’).
3. Upon being retrenched, the petitioner approached this Court
by way of preferring a writ petition being S.B. Civil Writ Petition
No.6263/1992, which was ultimately decided by this Court vide its
order dated 03.04.1995 – the petitioner was relegated to take
remedies under the Act of 1947 with a corresponding direction to
the State Government to make a reference.
4. Pursuant to the order dated 03.04.1995, a reference came to
be made by the State Government vide notification dated
11.11.1997 interalia asking whether the action of the respondents
in retrenching the petitioner from services with effect from
15.10.1992 was legal and valid and if not then, the workman was
entitled for what relief?
5. The petitioner filed a claim petition before the Tribunal and
asserted that he was appointed as helper on 01.12.1991 and
continuously worked with the respondents upto 15.10.1992 until
he was retrenched by oral orders.
6. The petitioner claimed before the Tribunal that the
respondents had violated the mandate of section 25F, 25G and
25H of the Act of 1947 and therefore, he was entitled for
reinstatement.
7. The reply/response was furnished by the respondents
interalia contending that the petitioner has not worked for more
than 240 days and therefore, he cannot be treated to be a
workman having continuously served the respondents for a period
of one year. A plea was taken by the respondent-State that the
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petitioner had worked only for 208 days (up to September, 1992),
whereafter he had voluntarily stopped coming on duties.
8. The Tribunal scanned and considered the oral and ocular
evidence on record and reached to the conclusion that the
petitioner had failed to prove that he had worked for more than
240 days in a calender year. The Tribunal came to the conclusion
that the petitioner’s contention that he had worked for 304 days
with the respondents is not correct and that he had worked for
less than 240 days. For this purpose, the Tribunal relied on the
copies of the muster-roll, which the petitioner had produced.
9. Though it was specifically pleaded by the petitioner that the
respondents had not complied with the mandate of section 25G
and 25H of the Act of 1947, the Tribunal did not consider
argument of the petitioner interalia for the reason that the
petitioner-workman had not completed 240 days with the
respondents.
10. Mr. Purohit, learned counsel for the petitioner submitted that
the petitioner had produced the copies of the muster-roll, which
were available with him. He argued that apart from the
documentary evidence, the petitioner had filed an affidavit and
asserted that he had worked for 304 days.
11. Learned counsel argued that the petitioner is an illiterate
workman and he could only produce the evidence which was
available with him. He added that the respondents ought to have
produced the muster-roll of the relevant period during which the
petitioner had worked. He submitted that since the respondents
have not placed the muster-roll, adverse inference ought to have
been drawn. Mr. Purohit argued that Tribunal ought to have
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decided the issue of continuous service for more than 240 days in
petitioner’s favour.
12. Having said so, Mr. Purohit, learned counsel for the petitioner
alternatively argued that if this Court does not wish to enter into
the factual dispute regarding the number of days, which the
petitioner had worked, then petitioner’s other arguments that the
respondents have violated the mandatory provisions of section
25G and 25H ought to have been considered.
13. Inviting Court’s attention towards the pleadings and the
affidavit, learned counsel submitted that persons appointed after
the petitioner namely Hukma Ram, Bhagwana Ram and Narayan
Patel have been kept in services while the petitioner had been
retrenched. He submitted that after the petitioner was retrenched,
one Oma Ram was appointed by the respondents, which fact
establishes that the respondents had violated the mandate of
section 25G and 25H of the Act of 1947, which enjoins upon the
employer to apply the principle of Last-In, First-Out (hereinafter
referred to as ‘LIFO’).
14. Learned counsel further submitted that the Tribunal has
erred in holding that it was a case of voluntary abandonment of
services and not of retrenchment. He argued that the fact that
petitioner had filed a writ petition in the year 1992 itself is enough
to prove the petitioner’s willingness to continue with the
respondents.
15. Mr. Chundawat, learned counsel for the respondent-State on
the other hand submitted that finding as arrived at by the Tribunal
is infallible while maintaining that this Court cannot go into the
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fact-finding inquiry about the number of days, which the petitioner
had served.
16. In relation to petitioner’s argument about violation of
provisions of section 25G and 25H of the Act of 1947, leaned
counsel submitted that the petitioner had voluntarily stopped
coming to the services and therefore, it was a case of voluntary
abandonment of service.
17. He argued that since the petitioner had not been retrenched,
there was no occasion for the respondents to follow the principle
of LIFO and to offer him appointment as provided under section
25G and 25H of the Act of 1947.
18. In relation to the petitioner’s contention about breach of
section 25G and 25H of the Act of 1947, it was contended by Mr.
Chundawat that other employees except one Hukma Ram were
appointed prior to the petitioner. He clarified that so far as Hukma
Ram is concerned, he was appointed on 01.04.1992 in Rajiv
Gandhi Lift Canal Sub-Division 18, in the office of Assistant
Engineer (Jodhpur Lift Canal) Sub Division Public Health
Engineering Department, Pumping Station No.7, Gagadi and not at
a place where the petitioner had worked.
19. In rejoinder, Mr. Purohit, learned counsel for the petitioner
submitted that maybe the Supervising Officer or the office are
different but the petitioner so also other employees from whom
the petitioner has claimed parity were of the same division as is
evident from the muster-roll, which the petitioner had produced.
20. Heard learned counsel for the parties and perused the
record.
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21. The issue as to whether the petitioner had completed 240
days, according to this Court, is a finding of fact arrived at by the
Tribunal. Such a finding is based on the material and evidence
adduced. In the present factual backdrop, this Court does not find
any reason to unsettle the same.
22. This Court is of the considered view that the plea of the
State that the petitioner had voluntarily abandoned the services is
untenable in law. The fact that the petitioner immediately filed the
writ petition in the year 1992, after being orally retrenched,
clearly shows his readiness and willingness to serve the
respondent. If an employee did not want to work, he would not
have taken trouble to approach the High Court and file a writ
petition. Respondents’ plea that the petitioner had voluntarily
abandoned the service is clearly untenable.
23. Adverting to petitioner’s other contention in relation to
violation of sections 25G and 25H of the Act of 1947, it is to be
noted that One Hukma Ram was appointed on 01.04.1992 and
was not retrenched while the petitioner who was appointed on
01.12.1991 was retrenched, resultantly, the person who had
joined after the petitioner was allowed to continue in the work
while the petitioner was retrenched. As such, there is clear breach
of mandate of section 25G of the Act of 1947.
24. State’s contention and the assertion made in the affidavit
(para nos.6 and 7) cannot be given much credence inasmuch as
the reply/written statement, which the respondent – State had
filed made no mention of the fact that Bhagwana Ram, Oma Ram
and Narayan Ram were appointed prior to the petitioner. A perusal
of the reply filed by the respondent-State clearly shows that the
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facts regarding Bhagwana Ram, Narayan Patel and Oma Ram as
given in the affidavit have not been pleaded.
25. According to this Court, the affidavit in evidence is
improvement of the assertions made in the counter or reply. The
same cannot be given any credence. That apart, a perusal of the
cross-examination of the officer who had appeared in the witness
box on behalf of the State (Annex.6-page no.56) reveals that he
had accepted the fact that he had copied his affidavit from an
earlier affidavit and did not examine the record. His cross-
examination also shows that he did not even have the access of
the record.
26. Such being the position, this Court is of view that the
evidence adduced by DW-1 is untrustworthy and liable to be
discarded.
27. It is therefore apparent on record that Hukma Ram was
appointed after the petitioner on 01.04.1992 and yet was kept in
the service while the petitioner had been retrenched.
28. According to this Court, the Tribunal has seriously erred in
not considering petitioner’s contention regarding breach of section
25G of the Act of 1947 on the ground that the petitioner had not
completed 240 days, hence provisions of section 25G of the Act of
1947 are not applicable.
29. If provisions of sections 25F, 25G and 25H are read in
juxtaposition, there is a significant difference in the language used
in section 25G and 25H of the Act of 1947 vis-a-vis the language
used in section 25F of the Act of 1947. Section 25F pre-supposes
‘continuous service of one year’, which expression has been
defined in section 25B of the Act of 1947 to mean 240 days in one
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calendar year. Whereas, the expression of ‘continuous service of
one year’ is completely absent in section 25G and 25H.
30. According to this Court, when the employee fails to establish
that he had worked for 240 days but proves the violation of
section 25G, he is entitled for reinstatement as has been held by
Hon’ble the Supreme Court in the below referred judgments:-
(i) Central Bank of India Vs. S.Satyam & Ors. (Civil
Appeal No.1811 of 1992), decided on July 31, 1996,
reported in (1996) 5 SCC 419;
(ii) Regional Manager, SBI Vs. Rakesh Kumar Tiwari
(Civil Appeals No.7 of 2006), decided on January 3,
2006, reported in (2006) 1 SCC 530;
(Civil Appeal No.1279 of 1999), decided on February
26, 1999, reported in (1999) 3 SCC 14;
(iv) Bhogpur Cooperative Sugar Mills Ltd. Vs.
Harmesh Kumar (Civil Appeal No.4771 of 2006),
decided on November 10, 2006, reported in (2006)
13 SCC 28;
(v) Jaipur Development Authority Vs. Ram Sahai &
Anrs. (Civil Appeal No.4626 of 2006), decided on
October 31, 2006, reported in (2006) 11 SCC 684;
31. Consequently, the writ petition is allowed. It is held that the
petitioner’s retrenchment was illegal and contrary to the
provisions of section 25G of the Act of 1947. Judgment and Award
of the Tribunal dated 16.11.2002 is, therefore, set aside.
32. Considering that a period of more than 33 years has passed
since the petitioner had been retrenched, instead of passing an
order of reinstatement, this Court deems it appropriate to
compensate the petitioner by way of a lumpsum.
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33. Learned counsel for the petitioner at this juncture submitted
that a lumpsum compensation to the tune of ₹5,00,000/- be
awarded with which his client would be satisfied, as he wants to
buy peace instead of working as a labourer at this matured age.
He relied upon judgment of Hon’ble the Supreme Court rendered
in the case of B.S.N.L. Vs. Bhurumal decided on 11.12.2013
reported in (AIR 2014 SCW 258) and submitted that petitioner
be paid atleast Rupees 5 lacs as a lumpsum compensation having
regard to inflation; (because in the year 2013, Hon’ble the
Supreme Court has awarded lumpsum compensation of
₹3,00,000/-.
34. Having heard learned counsel for the parties and upon
considering the judgment of Hon’ble the Supreme Court rendered
in the case of B.S.N.L. Vs. Bhurumal (supra) and the ever
increasing inflation, this Court is of the view that it would be
appropriate to award the petitioner a lumpsum compensation to
the tune of Rs.4,00,000/- to meet the ends of justice.
35. It shall be required of the respondent-State to pay the
amount of Rs.4,00,000/- to the petitioner on or before
30.06.2025. In case, the amount is not paid by 30.06.2025, it
shall carry interest @8% per annum from the date of the order
instant.
(DINESH MEHTA),J
1-raksha/-
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