State and Another vs Moola Ram and Another

This intra-court appeal is directed against the order dated 23.08.2005 passed in S.B. Civil Writ Petition No. 2968/2005 Moola Ram Vs. State & Ors. whereby, a learned Single Judge of this Court has allowed the writ petition filed by the workman (respondent herein) against the award dated 12.05.2003 made by the Industrial Disputes Tribunal and Labour Court, Jodhpur in Case No. 47/2001. On the claim of the respondent-workman for grant of regular pay-scale and payment at par with the regularly appointed persons, the following reference came to be made by the State Government:-

The basic case of the respondent-workman had been that he was appointed as Chowkidar in the Social Welfare Hostel, Goonga (Barmer) and was being made to work for the whole time but was not been paid salary equivalent to that of Chowkidar in the Department. The present appellants, on the other hand, contended that the respondent-workman had been engaged as part-time Chowkidar by the Mess Committee on a fixed salary and hence, he was not entitled to the relief as claimed.

In its impugned award dated 12.05.2003, the Labour Court, inter alia, took note of the fact that the workman himself admitted in his cross-examination that he was working for 2 hours but later on, also stated that he was working full-time. He, however, admitted that there was no specific order for his full-time working. The witness examined on behalf of the Department also stated that the respondent-workman was not working on full-time basis.

The Labour Court ultimately answered the reference against the workman and held him not entitled to the pay-scale of the post of Chowkidar.

In the writ petition, the learned Single Judge has referred to the statements made by the two witnesses and has observed that the Labour Court had not considered the matter in correct perspective and had reached to a finding contrary to the evidence available on record. The learned Single Judge has proceeded to allow the writ petition in the manner that while setting aside the award impugned, the reference itself has been answered in favour of the respondent-workman and the present appellants have been directed to allow him minimum of the regular pay-scale prescribed for the post of Chowkidar. The learned Single Judge has further directed consideration of the case of the respondent-workman for regularisation, if similarly situated persons had already been taken on the regular cadre. The learned Single Judge has, inter alia, observed as under:-

The Labour Court while answering the reference relied upon the statement of the petitioner during the cross examination to the effect that he was working for a period of two hours. It appears that the Court below read the statement of workman in isolation. The workman in his cross examination stated that he was working with the employer for full time. He also stated that it is wrong to suggest that he was working for only two hours. The workman also stated that no person except him was working as Chowkidar at the hostel concerned. Shri Anil Kumar Vyas also stated in his cross examination that no person except the workman Moola Ram was working as Chowkidar at the hostel concerned. In view of the statement referred above, it is apparent that the petitioner was only person discharging the duties of Chowkidar at Goonga Hostel run by the Social Welfare Department. The services of the Chowkidar are of full time nature and this cannot be assumed that a Chowkidar is required to work only for a period of two hours.

In view of it, I am of the considered opinion that the Labour Court has not considered the findings available on record in correct perspective. The court below read the evidence in isolation and reached to a finding which is contrary to the evidence available on record.

In view of the whatever discussed above, the writ petition deserves acceptance and the same is hereby allowed. The award impugned dated 12.5.2003 is hereby quashed. The dispute referred is answered in affirmation with direction for respondents to treat the petitioner as a Chowkidar and allow him minimum of the regular pay scale prescribed for the post of Chowkidar under the relevant rules with other admissible allowances. The candidature of the petitioner is also required to be considered for regularisation in service if similarly situated persons are already taken on regular cadre.

This intra-court appeal against the order so passed by the learned Single Judge was entertained by a co-ordinate Bench on 13.01.2006 and subject to the objections of the respondent, operation of the order of the learned Single Judge was stayed. Then, this appeal was admitted for hearing on 10.08.2006 and the interim order dated 13.01.2006 was continued until final disposal of the appeal while recording the statement of the counsel for the appellant that minimum wage @ Rs. 73/- per day were being paid to the respondent. Though served, nobody has put in appearance for the respondent-workman.

The learned Government Counsel for the appellants has argued with reference to the decision of the Hon''ble Supreme Court in the case of State of Rajasthan and Others Vs. Daya Lal and Others, that the respondent-workman was not entitled to claim parity in the salary with the regular employees nor was he entitled to claim absorption by way of regularisation. The learned Government Counsel has contended that the respondent-workman was essentially engaged by the concerning Mess Committee only for part-time services; and on the facts of the case, the learned Single Judge has erred in allowing the writ petition and in issuing directions for granting pay-scale to the respondent-workman as also for consideration of his case for regularisation.

After having given thoughtful consideration to the submissions made on behalf of the appellants and having perused the record, we are of the view that without any comments on the merits of the case either way, while setting aside the impugned order dated 23.08.2005, the reference case deserves to be restored for reconsideration of the Labour Court concerned.

Though some incongruities and inconsistencies do appear in the statements made by the respondent-workman but then, it is noticed that the Labour Court concerned took a particular view of the evidence on record while answering the reference against the respondent-workman. In our view, when the writ Court has found that the Labour Court had not examined the matter in its correct perspective; and when there are obvious inconsistencies in the evidence led by the parties, on the given set of facts and circumstances, the matter in the reference case ought to have been restored for reconsideration of the Labour Court concerned while giving another opportunity to the parties to lead additional evidence, if so required and if so chosen. However, in the totality of the facts and circumstances of the case, in our view, the writ Court could not have proceeded as if an Appellate Court so as to record a different finding on the same evidence. The consideration of the matter by the Labour Court also appears to be falling short of all the requirements of effective adjudication on the issues involved. In case of apparent incongruity or inconsistency, nothing prevented the Labour Court from putting the parties to clarification and, if required, taking further evidence in the matter.

In the aforesaid view of the matter, we are of the considered opinion that while setting aside the order dated 23.08.2005, as passed by the writ Court as also while setting aside the award dated 12.05.2003, as made by the Labour Court, Jodhpur, Reference Case No. 47/2001 Moola Ram Vs. Director, Social Welfare Department, Jaipur deserves to be restored for reconsideration.

Accordingly, this appeal is allowed in the manner and to the extent indicated above. The impugned order dated 23.08.2005 and the award dated 12.05.2003 are set aside. Reference Case No. 47/2001 stands restored for reconsideration of the Industrial Disputes Tribunal and Labour Court, Jodhpur in accordance with law.

Needless to reiterate that in case necessary, it would be open for the Labour Court concerned to take further evidence in the matter with appropriate orders in that regard. The respondent-workman having not appeared in this appeal, we are not fixing any date for appearance before the Labour Court. A copy of this judgment be endorsed to the Labour Court concerned, who shall take note of the requirements and for that matter, shall put the concerned parties to notice for appropriate proceedings in accordance with law.