- (1.) AN appointment was accorded to the petitioner as Lower Division Clerk on daily rate basis on 3.8.1985 and he was retrenched from service on 6.10.1986. Being aggrieved by the same he raised an industrial dispute that was referred for adjudication to the Labour Court, Jodhpur. The Labour Court vide its award dated 28.2.2001 declared retrenchment of the petitioner from service illegal, and directed the employer to reinstate him in service with 25% of back wages. The employer by way of filing a petition for writ (SBCivil Writ Petition No.246/2002) before this Court challenged the award dated 28.2.2001. The writ petition aforesaid came to be accepted in part on 15.12.2006 with a modification in the relief granted and in lieu of reinstatement, a lump sum compensation of Rs.50,000/- was awarded. However, prior to the judgment of this Court dated 15.12.2006, the employer reinstated the petitioner workman in service on 6.10.2005. A special appeal preferred by the petitioner workman giving challenge to the judgment dated 15.12.2006 also came to be rejected on 16.4.2007. Despite the modification made by this Court with the relief granted by the Labour Court, the petitioner was allowed to continue in service by the employer. The employer neither discontinued the petitioner from service nor paid the compensation in a tune of Rs.50,000/-, as awarded by this Court. By a notice dated 9.6.2009, the respondent No.2 asked the petitioner as to why he be not terminated from service in compliance of the judgment dated 15.12.2006. AN opportunity of personal hearing was also given to the petitioner. Subsequent thereto, vide order dated 29.6.2009 the petitioner was terminated from service with immediate effect. Being aggrieved by the same, this petition for writ is preferred.
(2.) IT is submitted that in pursuant to the award dated 28.2.2001, the petitioner was reinstated in service on 6.10.2005 and despite the judgment dated 15.12.2006 he was not discontinued from service for good 2? years. IT is contended that continuation of the petitioner in service upto 29.6.2009, even after modification of the relief granted by the Labour Court vide the judgment dated 15.12.2006, clearly indicates that the employer was intending to continue the petitioner in service and was not desiring to pay the compensation. IT is asserted that though the petitioner was discontinued from service in the name of compliance of the directions given by this Court, but as a matter of fact, no such instruction was ever given. As per counsel for the petitioner the modification made in the relief, in no manner restricts the employer to continue the petitioner in service, if so chosen. Per contra, the stand of the employer is that reinstatement of the petitioner in service was made in pursuant to the award passed by the Labour Court, that ultimately came to be modified by this Court, as such, he was rightly terminated from service by making payment of the compensation awarded. Heard counsel for the parties. So far as the facts of the case are concerned, those are not in much dispute. The petitioner was retrenched from service on 6.10.1986, and subsequent thereto vide order dated 6.10.2005 he was reinstated in compliance of the award dated 28.2.2001. At the time of reinstatement the writ petition (SB Civil Writ Petition No.246/2002) preferred by the employer to challenge the award dated 28.2.2001 was pending before the Court. The writ petition came to be disposed of on 15.12.2006 with modification in the relief granted. On acceptance of the writ petition in part the employer was at liberty to discontinue the petitioner on 15.12.2006 itself or immediately thereafter, but no such action was taken for good 2? years. No satisfactory reason is given by the employer to continue the petitioner in service despite the judgment dated 15.12.2006 and then to discontinue him from service in the name of compliance of the directions given by this Court. In the instant matter the conduct of the employer depicts the intent to continue the petitioner in service. If the employer was having any other intent, then the petitioner would have been thrown out of employment and would have been paid compensation immediately after part acceptance of the writ petition on 15.12.2006. No need was there to continue the petitioner in service upto 29.6.2009. An employee despite of an adverse judicial order, if is continued in service for a period of about 2? years, can very legitimately expect that the employer desires to continue him in service. An effort is made by the respondents to convey that a compensation was paid to the petitioner and that depicts intention to discontinue him from service. This fact is patently wrong. A sum of Rs.45316/- was paid to the petitioner during pendency of the writ petition No.246/2002 against back wages awarded by the Labour Court. An amount of Rs.4684/- was paid to the petitioner on 5.9.2008 by treating the same as due amount of compensation by adjusting the sum of Rs.45316/- against compensation awarded. The employer, if had any intention to terminate the petitioner from service, then certainly that would have been done at least on 5.9.2008, while making payment of Rs.4684/- against the due compensation in pursuant to the judgment dated 15.12.2006. The continuation of the petitioner even after payment of the sum of Rs.4684/- clearly indicates that the employer was desiring to continue the petitioner in service.
(3.) AN another important fact of the case is that in SBCivil Writ Petition No.246/2002 a statement was made by counsel for the employer on 10.3.2006 about reinstatement of the workman in service in compliance of the award passed by the Labour Court, without pointing out that the reinstatement was made in pursuant to an interim order passed in the writ petition aforesaid on 23.1.2002. In view of the statement so given, the writ petition was disposed of as becoming infructuous. AN application then was submitted by the employer to recall the order disposing of the petition in view of the fact that the appointment was given to the workman subject to final decision of the writ petition. The employer was quite vigilant in moving that application, but it is strange that no expeditious action was taken by the vigilant employer on disposal of the writ petition that modified the relief granted by the Labour Court. As a matter of fact, this conduct of the employer strengthens the petitioner's stand about employer's intention for not terminating him from service. Suffice it to mention that in SB Civil Writ Petition No.246/2002 this Court was examining validity of the award passed by the Labour Court and while doing so modified the relief granted to the petitioner. In industrial jurisprudence the prime consideration is industrial peace, thus, even after getting a verdict from judicial fora the parties in dispute remains at liberty to arrive at a different settlement. As such, it was open for the employer to continue the petitioner in service and that was done by continuing the petitioner in service upto 29.6.2009. The termination of the petitioner on 29.6.2009 appears to have been made for some other reason and a false shelter of the directions given by this Court appears to have been taken. In totality, the facts available are sufficient to establish that the termination of the petitioner was not in compliance of the directions given by this Court in writ petition No.246/2002. As a matter of fact in the writ petition aforesaid the relief granted by the Labour Court was modified and as already stated above it was open for the employer to accept that or to reinstate the workman in service. The employer appears to have chosen for continuing the petitioner in service and at a belated stage decided to terminate the petitioner from service by taking shelter of the judgment. It is apparent that the dispute pertaining to the termination of the petitioner w.e.f. 6.10.1986 arrived at end by continuing him in service, even after 15.12.2006 for a period of 2? years. The termination effected on 29.6.2009 is thus, a separate cause. This termination of the petitioner is founded on an absolutely wrong premises, thus, is bad. For the reasons given above, the petition for writ is allowed. The termination of the petitioner from service w.e.f. 29.6.2009 is declared illegal. The petitioner is declared entitled to be reinstated in service. However, he shall not be entitled for any back wages for the period he remained out of employment. The petitioner shall also not be entitled for fixation in regular pay scale and for grant of annual grade increments being an adhoc appointee. The respondents shall allow him minimum of the regular pay scale and admissible allowances. It is made clear that the directions given above shall neither have any adverse effect upon the rights of the petitioner for regularisation of service, if any available under the Rules applicable nor shall restrict the employer from terminating him from service in accordance with law. No order to costs. ;