Sarwan Kumar vs Executive Officer, Nagar Palika and Another

In challenge is the judgment and order dated 3.9.2013 passed amongst others in S.B. Civil Writ Petition No. 3044/1999 Sarwan Kumar V/s. Executive Officer, Nagar Palika Nava and anr. thereby sustaining the award dated 8.6.1999 passed by the learned Labour Court, Jodhpur in Labour Case no. 132/97 whereby the termination of the services of the appellant-writ-petitioner though had been held to be invalid being in contravention of the provisions of Section 25F of the Industrial Disputes Act, 1947 (for short, hereinafter referred to as "the Act"), the relief only by way of compensation to the tune of Rs. 21,000/- had been granted. Being aggrieved by the denial of his reinstatement in service, the appellant-writ-petitioner sought the intervention of this Court in the exercise of its writ jurisdiction. We have heard Mr. Parihar, learned counsel for the appellant-writ-petitioner.

The facts in bare minimum necessary for the present adjudication are that according to the appellant-writ-petitioner, he was on 26.7.1988 engaged as Nakaguard/Sub Nakedar on a daily wage of Rs. 14/- in the establishment of the Executive Officer, Nagar Palika, Nava District Nagaur. He claimed to be in continuous service in that capacity from 26.7.1988 to 4.10.1989 when his services were abruptly terminated. Contending that by then he had worked for more than 240 days in a year just prior to his disengagement, he raised an industrial dispute asserting his retrenchment to be invalid being in violation of Section 25F of the Act. The dispute was eventually referred to the learned Labour Court, Jodhpur.

The respondent in his written statement in the proceeding before the learned Labour Court pleaded that the appellant-writ petitioner had in-fact been engaged on and from 1.10.1988 and not 26.7.1988 and that he voluntarily abandoned the work on 5.10.1989 and thus, there was no necessity to comply with the requirements otherwise prescribed by Section 25F of the Act.

In the reference, both the sides adduced evidence-oral as well as documentary.

The learned Labour Court, Jodhpur noticing amongst others the admission on behalf of the respondent that the appellant-writ-petitioner had worked from 1.10.1988 to 4.10.1989, concluded that he in-fact had been in continuous service under him (Executive Officer) for over 240 days in a year immediately prior to his retrenchment. Having held that as in this factual premise the mandatory pre-conditions as prescribed by Section 25F had not been complied with, the learned Labour Court recorded a finding that the retrenchment of the appellant-writ-petitioner was invalid. This conclusion notwithstanding it took note of the fact that at the relevant time he had been residing at Jaipur for last 7 to 8 years with his family alongwith his brother-in-law. The learned Labour Court considering the fact that by the time of passing of the award a decade had passed from the date of his retrenchment from service, decided against granting him reinstatement and instead computed Rs. 21,000/- to be the amount of compensation grantable to him. In quantifying this figure, the learned Labour Court took note of the fact that the appellant-writ-petitioner at the time of his retrenchment was being paid a daily wage of Rs. 14/- and that he had served for a year before his disengagement, devaluation of the rupee as well as inflation of prices etc. Thus, holding the retrenchment of the appellant-writ-petitioner to be void, direction was made to release a sum of Rs. 21,000/- to him as compensation. Being aggrieved, the appellant-writ-petitioner, to reiterate, instituted S.B. Civil Writ Petition No. 3044/1999. The learned Single Judge, on an analysis of the materials on record, returned a finding that the award did not call for any interference. In reaching this conclusion, the learned Single Judge noted that the industrial dispute had been raised after a lapse of about 8 years and that admittedly, the appellant-writ-petitioner had worked at the time of his retrenchment even for less than a year. It was noticed as well that the collection of octroi duty for which he had been engaged, had been abolished in the State and that in view of the huge time lag, the reasons cited by the learned Labour Court in not granting him reinstatement did not lack in logic and rationality.

Mr. Parihar has insistently argued that as the retrenchment of the appellant-writ-petitioner has been held to be invalid, he ought to be deemed to be continuous in service and thus, the learned Labour Court as well as the learned Single Judge had grossly erred in not directing his reinstatement.

We are unable to sustain this argument. As it is, it is not obligatorily essential for any adjudicating forum to direct reinstatement of any incumbent even on an ultimate analysis that the termination of his/her services is determined to be illegal and non est. On a variety of considerations, the relief of reinstatement in service may permissibly be denied. It is no longer res integra that such an incumbent does not have a vested right in law to claim reinstatement in service in all eventualities even if the decision to terminate his service is held to be unsustainable.

On a consideration of the factors taken note of by the learned Labour Court as well as the learned Single Judge, we are thus of the unhesitant opinion that the argument advanced on behalf of the appellant-writ-petitioner insisting for his restatement in service, cannot be sustained. The decision of the Hon''ble Apex Court in Director of Horticulture and Another Vs. H.A. Kumar, is distinguishable and thus, is of no avail to the appellant-writ-petitioner. The appeal thus, in our estimate, lacks in substance and is dismissed.