Jaipur Metals and Electricals Ltd. vs State and Others (Asth Ali)

Ajay Rastogi, J.—Since both these petitions involve identical controversy, are being decided by a common order.

Instant petitions have been filed by employer assailing Awards dated 25.03.1995 passed by Labour Court, Jaipur in LCR 66/89 (Asnt Ali v. MD Jaipur Metals and Elcctricals Ltd.) and LCR 69/89 (Abdul Qayum v. MD Jaipur Metals and Electricals Ltd.) whereby learned Labour Court answered Reference made by appropriate Government on 14.03.1989.

Respondents-Workmen were in service of petitioner-Company since 1952 and their services were terminated vide order dated 05.04.1984 and at the time of their termination, they were being paid Rs. 70/- per day. It remained undisputed or controverter after the material has come on record that before passing order terminating services of respondents-workmen, neither any opportunity was afforded nor inquiry was held and their action was in violation of breach of principles of natural justice.

It is also relevant to mention that petitioner-Company was declared as Relief Undertaking under Sub-section (1) of Section 3 of Rajasthan Relief Undertakings (Special Provisions) Act, 1961 vide notification dated 17.12.1977 which remained effective upto 12.08.1978-in course whereof, petitioner company was exempted from provisions under Schedule A to the Act, 1961 including Industrial Disputes Act, 1947 ("ID Act"). After expiry of the period during petitioner Company remained relief undertaking, respondents-workmen raised their dispute initially before Conciliation Officer and finally Reference was made by appropriate'' Government vide notifications dated 14.03.1989 before the Labour Court as to whether termination of respondents workmen vide order dated 05.04.1984 was legal and justified and what relief workmen are entitled for?

When petitioner Company was relief undertaking, services of other workmen who were similarly situated were also terminated in the same manner and some of them approached this Court by filing of writ petitions Under Article 226 of the Constitution and the Division Bench in Ishaq Mohd etc. v. Jaipur Metals and Elect. Ltd. 1988 (1) RLR 157 wherein it was held that such termination was in violation of principles of natural justice and so also in violation of Articles 14 & 16 of the Constitution and they were directed to be reinstated in service ad infra:

As we have held that the termination was in violation of the principles. of natural justice and was arbitrary also, therefore, the petitioner is entitled to be reinstated. However, we are of the opinion that in the facts and circumstances of the case, the petitioner is not entitled to full back wages, as other employees whoso services were similarly terminated by the respondent Company after accepting the offer of re-employment were reinstated, but the petitioner did not accept the re-employment when offered vide letter dated 07.12.1985. However, in the facts and circumstances, the ends of justice would be met if the petitioner is paid wages from 06.02.1984 and 07.12.1985 at the monthly rate which the petitioner was getting-when his services were terminated. After reinstatement the petitioner will give production as other employees similarly situated are giving. The petitioner may be reinstated when he reports for duty.

In both the claims, it was pleaded that action of employer was arbitrary and with oblique motive and in their affidavits it was specifically deposed that no show cause notice or after charge sheet was served but without affording them opportunity of hearing or to inquire upon alleged act and in utter disregard of principles of natural justice, their services were terminated after having endered almost 32 years services or more. It was further deposed that at the time, when further appointments were made, they wore never served with notice to call upon them for re-employment despite they being employee for last more than three decades and remained out of employment during pendency of proceedings after termination. Learned Labour Court after examining material on record and taking note of decisions (supra), finally observed that action of petitioner-Company, was in violation of principles of natural justice and accordingly vide Awards impugned set aside the termination of respective workmen and directed their reinstatement with continuity in service along with 70% back wages for intervening period.

Counsel for petitioner submits that on the date when services of respondents workmen were terminated on 05.04.1984 petitioner company was a relief undertaking; as such dispute even if raised after the company having not remained relief undertaking could not have been answered in a reference since provisions of ID Act were exempted from being applicable at the time when services of workmen were terminated; as such Award passed by Labour Court is without competence and jurisdiction and deserves to be set aside.

Counsel also submits that both the workmen have attained 58 years which is the age of superannuation; hence Award of reinstatement will remain insignificant, hence required to be interfered with.

Counsel for respondents workmen on the other hand while supporting the finding under Award impugned, further contends that Reference was made on 14.03.1989 while at that time, petitioner company was not a relief undertaking and their termination being an, industrial dispute covered u/s 2(a) of ID Act, the appropriate Government rightly made a Reference for adjudication. Counsel further submits that action of petitioner company while terminating services was in violation of principles of natural justice and no opportunity of hearing was afforded to the respective workmen before passing order impugned dated 05.04.1984 and the question with respect to such workmen who were terminated alike present respondent workmen, had already been examined by Division Bench in Ishaq Mohd etc. v. Jaipur Metals and Elect. Ltd. which the Labour Court has taken note of under the Award impugned herein; as such Labour Court has not committed any error while holding termination impugned being in violation of principles of natural justice.

Counsel also submits that it was specifically deposed by both the respondent workmen in their affidavits that they remained unemployed after termination of their services. No contrary material has come on record still Labour Court has awarded 70% back wages and they are certainly entitled for their back wages upto date of attaining age of superannuation and not thereafter.

I have considered rival contentions of Counsel for both the parties and with their assistance examined material on record. Question raised on behalf of petitioner is as to what will be the effect of a petitioner-Company being relief undertaking on the date of termination has to be looked into, since indisputably termination was made on 05.04.1984.

It is not disputed that Reference was made by appropriate Government while it was not relief undertaking on 14.03.1989 and the Labour Court in its Award has not examined provisions in regard to violation of any provision of ID Act and has examined the general principles of law, which the employer was under obligation to look into even at the time when termination was given effect to under order impugned.

It is not the case of petitioner that while passing order of termination of respondents workmen, principles of natural justice has been complied with or that it has been passed in conformity with mandate of Articles 14 & 16 of the Constitution.

As observed (supra), Division Bench of this Court has examined grievance of similarly situated workmen whose services were terminated alike respondents workmen; and prior thereto, either charge sheet was issued but no inquiry was held or juniors were retained in employment and opportunity of hearing was not afforded before terminating their services.

It was held by Division Bench in Ishaq Mohd v. Jaipur Metal and Elec. Ltd. (supra) that petitioner Company being a State within the meaning of Article 12 of the Constitution, action of employer was in violation of principles of natural justice and of Articles 14 & 16 of the Constitution.

It is true that petitioner company was exempted from application of ID Act but certainly was under obligation to comply with the general principles of law being applicable upon petitioner company being a State as held by this Court under Article 12 of the Constitution of India while passing order of termination, which was in violation of principles of natural justice as well as provisions of Articles 14 & 16 and so also of Article 21 of the Constitution of India.

Learned Labour Court in both the References have only examined general principles of law being applicable to the extent available to respondents workmen and finally held that action of petitioner employer in terminating services of workmen, was in violation of principles of natural justice-protection whereof was certainly available to them. This Court does not find manifest error being committed in recording such finding by Labour Court which may call for interference.

As regards submissions made by Counsel for petitioner that the date of termination has to be looked into for application of exemption under Act, 1961, it has no merit for the reason that reference was made by appropriate Government 11 the time when petitioner-Company, was not a relief undertaking while services were terminated on 05.04.1984.

As regards grant of exemption from application of ID Act under notification in question, Labour Court has not examined any violation of provisions of Sections 25-F, 25-G, & 25-H of ID Act and rightly so since petitioner company was exempted from application of ID Act in view of notification in question at the time when services were terminated on 05.04.1984. But objection was available to them for being raised in regard to application of general principles of law and indisputably, that has not been complied with by petitioner company while terminating services of workmen, certainly it was within competence of the learned Labour Court while examining order of termination impugned and holding it to be bad in law and directing reinstatement with continuity of MI vice particularly when workmen who had worked for almost 32 years, at the tune of their termination and further have specifically deposed that they remained out of employment after termination of their services and despite it, when no contrary material having come on record, Labour Court has rightly directed to award 70% of back wages; and if respondents workmen had attained age of superannuation during pendency they are certainly entitled for their back wages pursuant to Award impugned till age of their superannuation. This Court does not find manifest error in the Award impugned which may call for interference.

Consequently, both the writ petitions fail and are hereby dismissed. No costs.