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Judgment
Mohammad Rafiq, J.—This writ petition has been filed by petitioners, namely, Sheep Husbandry Officer, Large Scale, Sheep Breeding Farm, Fatehpur, District Sikar and another, challenging the award of the Labour Court, Jaipur, dated 18.02.1998, whereby it held the proceedings under the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 against the respondent No. 1-workman to be just and valid. So far the termination of the respondent No. 1-workman thereunder is concerned, the Labour Court ordered to forfeit the period from 1982 till his reinstatement withholding his all consequential benefits of that period, directed his reinstatement from the date of his rejoining in service. The Labour Court held the subsistence allowance for that period to be sufficient towards his salary. It further directed to pay him the regular pay from the date of the award. The Labour Court also ordered to forfeit his salary from the date of joining till the date of award. The workman was also held to be not entitled for any wage or leave encashment and other benefits before the date of award, however, the workman shall be entitled to be paid the salary from the date of the award in the pay scale mentioned in order (Exhibit M-1) that has been revised from time to time and shall be fixed in the pay scale on 18.02.1998 and thereafter shall be paid the regular pay scale. So far as the continuity of the respondent No. 1 is concerned, the period from 02.03.1982 till the he rejoins the service shall not be counted towards his service. Keeping in view the date of superannuation, the respondent No. 1-workman would not be entitled to get proportionate pension.
An industrial dispute was referred to the Labour Court as to whether removal of the respondent No. 1-workman Jagdish Prasad Gadaria by the petitioner management in disciplinary proceedings conducted under the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (for short, ''the CCA Rules'') was legal, valid, and if not what relief what he entitled to get. The Labour Court while answering the reference, held the removal to be illegal and further held him entitled to reinstatement. By substituting the penalty of removal and order of substitution of penalty of removal by that of forfeiture of his back wages from the date of removal till reinstatement. Back wages, leave/earned-leave but granted him benefit of regular pay scale from the date of award by notionally arriving at such pay scale from 01.03.1982 and 18.02.1988 but the aforesaid period shall not be counted towards his past service.
Learned counsel for the petitioner submits that the respondent-workman was initially appointed on 1605.1975 with the respondent on the post of Gadariya. He joined his duties on 17.05.1975. He was removed from services on 06.11.1982 followed by disciplinary proceedings on the ground of his absence from 18.03.1982 till date of passing of order of removal dated 06.11.1982.
Shri Arpit Srivastava, learned Deputy Government Counsel for petitioners, has argued that the Labour Court has failed to appreciate that regular disciplinary proceedings were not conducted against the respondent for charge of his willful absence from duties. The respondents not only remained absent from duties but did not submit application for grant of leaves. His services were terminated on 06.11.1982 on the valid charge which was lawfully proved. The impugned award is therefore liable to be set aside.
It is contended that memo under Rule 17 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (for short, ''the CCA Rules'') was also served upon the respondent on 06.07.1981, in which proceedings penalty of stoppage of one grade increment was inflicted upon the respondent on 06.07.1981. Another memo dated 26.07.1982 was served upon him under Rule 16 of the CCA Rules for remaining absent from 24.02.1982. His services were found not satisfactory. The respondent by his application dated 23.02.1982 applied for casual leave from 24.02.1982 to 01.03.1982. He thereafter submitted another application on 01.03.1982 for leave upto indefinite period enclosing therewith alleged illness medical certificate from 24.02.1982 to 17.03.1982. The assertion made by him that he was ill, could not be accepted. The respondent ought to have attended the duties on 18.03.1982 but he remained willfully absent beyond that period. He did not even submit application for extension of leave. His status was that of casual employee and therefore his services were put to an end by order dated 06.11.1982 after holding regular disciplinary enquiry under Rule 16 of the CCA Rules. In view of that, the Labour Court did not have jurisdiction to adjudicate upon such dispute. A registered letter was sent to the respondent on 19.03.1982 to either attend the duties or present himself before the Medical Jurist for medical examination. Though that letter was received by the respondent workman on 27.03.1982 even then he did not appear on that date, nor did he apply for extension of leave. Thereafter reminder was sent to him. It was thereafter that on 10.05.1982, the respondent applied for extension of leave for two months from 10.03.1982 enclosing therewith a copy of the medical certificate, which was not believable. Even then the respondent did not appear on 10.05.1982. Even another notice was sent to him to attend the duties within three days to the respondent. Notice was received by the respondent on 07.06.1982 but he did not bother about the same. It was thereafter that a charge-sheet under Rule 16 of the CCA Rules was issued to him on 26.06.1982, which returned with postal remark that addressee was not available on the given address and that he had gone to Iraq for earning his livelihood. The charge-sheet was thereafter published in the newspaper on 28.08.1982 so that the respondent could submit his reply and produce his evidence. It is thus clear that the respondent had gone abroad for earning money. It is also argued that since industrial dispute was raised after five years of alleged removal, the Labour Court was not justified in entertaining the same. Since RSR was applicable to the respondents his service could be put to an end. The respondent was merely a temporary employee and his services were put to an end by notice under Rule 86 of the CCA Rules.
Shri R.D. Rastogi, learned counsel for the respondent-workman opposed the writ petition and submitted that the respondent was on the post of Gadaria. Award of the Labour Court does not suffer from any legal infirmity inasmuch as there is no error apparent on the face of it. The writ petition therefore deserves to be dismissed. It is argued that the respondent-workman was appointed as Gadaria temporarily for a period of three months on 16.05.1975. While so working, petitioner applied for casual leaves for the period from 24.02.1982 to 01.03.1982. However, in the meantime, he fell sick therefore he applied for extension of leaves up to 17.03.1982. He submitted the application along-with the medical certificate. However, since he could not recover from illness, he again submitted application on 10.05.1982 for extension of leaves for indefinite period. The Department was wholly unjustified in not believing the medical certificate of sickness for two months from March, 1982. It was wholly illegal in not extending the leaves for such period in spite of the application on medical grounds. Service of the respondent was terminated in violation of provisions of Section 25F of the Industrial Disputes Act. It is submitted that the disciplinary proceedings under Rule 16 of the CCA Rules could not be conducted against respondent as charge-sheet dated 26.07.1982 was never served upon the respondent. It is contended that such charge-sheet was served upon the petitioner on 28.08.1982. The Department submitted an application before the Labour Court to lead evidence and prove the misconduct of the respondent, which application was allowed on 01.11.1991. During cross-examination, the representative of the Department mentioned that the respondent-workman was allowed to join duties and was in fact working with the department. The Labour Court therefore was perfectly justified in directing reinstatement of the respondent-workman by treating the intervening period as dies non.
It is denied that the applicability of the CCA Rules would oust the jurisdiction of the Labour Court. The Large Scale Sheep Breading Farm is independently covered by the industry. Relying on the judgment of this court in Chief Engineer, Public Health Engineering Department Vs. Labour Court, Jaipur and Another-1994 I L.L.N. 770, it is argued that a civil servant can approach Labour Court or Industrial Tribunal for vindication of his rights. Even otherwise, learned counsel for petitioner argued that department has allowed the respondent to join the service. His absence, on which ground he has been terminated, should be dealt liberally, particularly when absence of approximate five months has already been treated dies non by the Labour Court. Relying on the judgment of the Supreme Court in Sadhana Lodh Vs. National Insurance Company Ltd. and Another, , learned counsel for the petitioner argued that the High Court under its supervisory jurisdiction conferred under Article 227 of the Constitution of India, cannot correct an error apparent on the face of the record, and it is also not permissible to it to review or reweigh the evidence.
On hearing learned counsel for the parties and perusing the material on record, I find that even though the management has specifically raised the issue about absence of the respondent for a long period and efforts made by them for service of the charge-sheet on the respondent-workman and publication of such charge-sheet in the newspaper, the Labour Court has not given any finding as to legality or otherwise of the order of termination. The department has simultaneously invoked the Rule 86 of the CCA Rules. The Labour Court has also not given any findings as to what is the effect of such plea by the department. The Labour Court has not examined as to on what evidence the disciplinary enquiry was initiated by the department. The Labour Court has although held that there was no limitation for raising dispute but delay of five years in this matter in raising the dispute by respondent workman assumes significance in the light of assertion made by the management that he had in fact left for abroad Iraq to earn his livelihood, which is clear from the fact that when the charge-sheet dated 26.06.1982 was sent to him, it was returned by the postal remark that addressee was not available and had gone to Iraq for earning his livelihood. The Labour Court in para 7 of the award has noted the evidence adduced by Shri S.S. Purohit on behalf of the management to prove that despite repeatedly required, the respondent did not produce himself before the Medical Board for his check up. The Labour Court has noted that the averments made by Shri S.S. Purohit from paras 5 to 15 of the above affidavit, have not been disputed by the workman and he has not shown as to in what manner proceedings under Rule 16 of the CCA Rules against him were illegal. Not a single question was put to Shri S.S. Purohit, the departmental witness, in cross-examination, whether the delinquent had gone to Iraq. The Labour Court has noted that since the aforesaid remark was made on the envelope (Exhibit M-18) by the postman in discharge of his duties, a presumption would arise about its correctness that when the charge-sheet was sent to the delinquent, he was not available in India. All these findings have been recorded by the Labour Court in para 7 of the award. The Labour Court in fact in para 11 of the award has stated that the charges against the respondent for lawful absence were fully proved because he has not denied and repeated the assertion made by Shri S.S. Purohit in his affidavit and has failed to give any satisfactory reason for his absence. In the affidavit, he has not offered a single word about his absence and that he has also not given any reason that when he was sick in March, 1982, why he raised the dispute after five years.
In view of the aforesaid findings of the Labour Court, it possibly could not have invoked the provisions of Section 11-A to substitute the penalty of termination by that of forfeiture of past service of the respondent and on that basis directing his reinstatement, which direction of the Labour Court is quite opposite to the findings recorded by it in paras 7 and 11 of the award and, therefore, this is clearly an error apparent on the face of the record justifying interference by this court. The impugned award therefore cannot be sustained.
The writ petition accordingly stands allowed. The impugned award is set aside. The action of the management is held to be legal and justified. The operation of the impugned award was stayed by interim order of this court dated 09.08.2000, which order was confirmed on 20.04.2001. However, subsequently by order dated 08.03.2007 of this court, the respondent was ordered to be paid benefit u/s 17-B of the Industrial Disputes Act. The respondent workman shall, however, be entitled to retain the benefit paid to him u/s 17-B of the Industrial Disputes Act, 1947.
The writ petition is accordingly allowed.