Full Judgment Text
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CASE NO.:
Appeal (civil) 6654 of 2005
PETITIONER:
RAJASTHAN TOURISM DEV. CORPN. LTD. & ANR
RESPONDENT:
INTEJAM ALI ZAFRI
DATE OF JUDGMENT: 13/07/2006
BENCH:
Dr.AR.LAKSHMANAN & LOKESHWAR SINGH PANTA
JUDGMENT:
J U D G M E N T
Dr.AR.LAKSHMANAN,J.
Heard Mr.Shrish Kr.Mishra, learned counsel for the appellants and
Mr.Indra Makwana, learned counsel for the respondent-workman.
We have perused the records and the order impugned in this appeal.
The Labour Court has held that the appellant has worked for 240 days. In our
opinion, the finding recorded by the Labour Court is factually incorrect. The
appellant has placed material before us and also before the Labour Court that
the workman has worked only for 227 days in about four years as per the
following description as contained in para 5 of the reply to the statement of
claim :-
"December, 1987 4 days
January, 1988 27 days
February, 1988 25 days
March, 1988 27 days
March, 1990 23 days
April, 1990 23 days
May, 1990 20 days
July, 1990 18 days
August, 1990 18 days
December, 1991 14 days
January, 1992 24 days
February, 1992 04 days
___________________
Total Days 227 days"
__________________
The respondent has not worked for 240 days in one calendar year
which is the condition precedent for attracting provisions of Section 25F of
the Industrial Disputes Act, 1947. This apart, the workman was a causal
house assistant who never worked for 240 days continuously in one calendar
year. As per the provisions of Section 25(B) of the Industrial Disputes Act,
there should be working of 240 days in one calendar year. Hence, the
provisions of Section 25F of the Industrial Disputes Act are not attracted in
the instant case for the reason that the respondent worked only for 227 days
in about 4 years period from the date of his initial appointment i.e. 28.12.1987
to the date of termination i.e. 07.02.1992. In our opinion, the learned Single
Judge as also the learned Judges of the Division Bench of the High Court
have committed a mistake of law in ordering reinstatement with back wages
etc. This apart, the order passed by the Division Bench is also non-speaking.
As already noticed, it is the settled proposition of law that when the
initial appointment itself is void then the provisions of Section 25F of the
Industrial Disputes Act are not applicable while terminating the services of
the workman. The respondent-workman has also not placed before the
Labour Court the relevant documents and not even summoned the records
before the Labour Court. It is seen from the records that neither the Labour
Court called for the records concerned nor the respondent-workman moved
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an application before the Labour Court for summoning the records. The
respondent-workman led no cogent and convincing evidence before the
Labour Court. Accordingly, the award passed by the Labour Court deserves
to be quashed and set aside.
For the aforesaid reasons, we set aside the order of reinstatement and
back wages passed by the courts below. The appeal stands allowed
accordingly. No costs.
We make it clear that if any payment is made to the respondent during
the pendency of appeal in this Court, the same shall not be recovered.
In view of the order now passed, the proceedings before the Labour
Court under Section 33C(2) has become infructuous.
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