- (1.) The instant writ petition has been filed by the State under Articles 227 of the Constitution of India against the award passed by the Industrial Tribunal, Bhilwara, whereby the Judge, Labour Court held that the termination of the respondent's services is illegal because it is in violation of Section 25F of the Industrial Disputes Act, 1947. The learned Judge, Labour Court, while passing an order for reinstatement, awarded 50% back wages to the respondent workman and also gave direction to grant semi permanent status on completion of two years' service in accordance with the Workcharged Rules, 1964 on the post of 'Beldar'. Learned counsel for the petitioner department has vehemently argued that the finding given by the Judge, Labour Court, is totally erroneous because there was no master and servant relationship between the petitioner department and the respondent workman. Infact, the respondent workman was engaged through Reliance Security Services Ltd. or Bhilwara District Ex Servicemen Welfare Society, therefore, the award impugned is based upon illegal and perverse finding. Learned counsel for the petitioner further argued that the Judge, Labour Court has failed to consider the material evidence on record, although a specific plea was taken by the petitioner department that the respondent workman was appointed through Reliance Security Services Ltd. and in view of that fact, there is no relationship of master and servant in between the petitoner department and the respondent workman.
(2.) Per contra, learned counsel for the respondent workman submits that the finding given by the Judge, Labour Court, is perfectly in consonance with the law because to prove a particular fact with regard to appointment of workman, it was necessary for the petitioner department to produce documentary evidence in support of their contention that the respondent workman was engaged through Reliance Security Services Ltd. It is further argued that in absence of any documentary evidence, the learned Judge, Labour Court has rightly arrived at the finding that only on the basis of assertions made in the reply without any documentary evidence, it cannot be presumed that the respondent workman was provided appointment through Reliance Security Services Ltd. Learned counsel for the respondent workman further argued that in identical matter in case of Chhagan Lal Joshi, the learned Judge, Labour Court, adjudicated the industrial dispute in which it is held that without any documentary evidence to prove the fact that the workman was engaged through Reliance Security Agency or other agency, it cannot be held that there was no master and servant relationship in between the petitioner department and the respondent workman. In the case of Chhagan Lal Joshi, identical issue was in question but the Labour Court, learned Single Judge, and the Division Bench of this court finally adjudicated the issue and it was held that in absence of any documentary evidence that the workman was engaged through Reliance Security Services Ltd., it cannot be presumed that there was no master and servant relationship in between the petitioner department and the respondent workman, therefore, this writ petition deserves to be dismissed.
(3.) In (1) S.B.Civil Writ Petition Nos.10883/2013 "State of Rajasthan vs. Ram Prasad" and (2) S.B.Civil Writ Petition Nos.13469/2013 "State of Rajasthan vs. Ram Prasad", decided today i.e. 23rd May, 2014, following adjudication has been made: After hearing learned counsel for the parties and having perused the award impugned, it is apparent that admittedly, there is finding in the award that to prove the fact with regard to engaging the respondent workman through Reliance Security Agency, no documentary evidence is produced on record so also it has not been proved by other evidence that the respondent workman was engaged to perform the duties as 'Beldar' in the department through Reliance Security Agency. Meaning thereby, it is a case in which although a plea is taken by the petitioner department with regard to mode of appointment of the respondent workman while accepting that he worked in the department but it has not been proved before the learned Judge, Labour Court that the appointment of the workman was made through Reliance Security Agency. The learned Judge, Labour Court, while considering the important aspect of the matter that the petitioner department is accepting the engagement of the respondent workman through Reliance Security Agency, observed that the petitioner department has not produced any appointment order on record. In the opinion of this court, if any plea is taken by the employer before the court with regard to particular fact of appointment through then it is the duty of the department to prove the said fact but in this case, the learned Judge, Labour Court held that in absence of any documentary evidence, it cannot be presumed that the workman was engaged through Reliance Security Agency. While considering the case of Chhagan Lal Joshi , the learned Judge, Labour Court decided both the references made by the appropriate Government for adjudication with regard to termination of respondent's services with effect from 2.3.2007 and for grant of semi permanent status after completion of two years of service in favour of respondent workman. In my opinion, in identical circumstances, when the matter has already been adjudicated upto the Hon'ble Supreme Court in the identical case of Chhagan Lal Joshi, then it cannot be said that any error has been committed by the learned Judge, Labour Court in deciding both the references made by the appropriate Government. In Chhagan Lal's case, the learned Single Judge gave the following findings in the similar circumstances: "In my opinion, the findings recorded by the learned Labour Court are based on correct appreciation of evidence. The learned Labour Court has clearly recorded that the witness produced on behalf of the Department namely Karnidan has admitted in his cross examination that the respondent No.1 was working as pump driver and in the log-book signatures of Chhagan Lal are there for the period from 19.6.1997 to 15.3.2000, which clearly shows that the respondent-workman was working with the petitioner. The workman in his statement has also stated that he was engaged by Assistant Engineer Kothariji. However, the Department was not examined the said Assistant Engineer, Kothariji. The learned Labour Court has drawn adverse inference for not producing Kothari Ji during which period, the workmen were engaged. The learned Labour Court has also held that from the log-book it is also apparent that the petitioner had worked for more than 240 days in a calendar year. So far as engagement of the respondent-workman by the Security agency is concerned, no documentary evidence was produced to show that the respondent-workman was engaged through a security agency and there was contract between the security agency and the petitioner. Under the aforesaid circumstances, the learned Labour Court has recorded a finding that the respondent-workman was engaged by the petitioner and before terminating his services, provisions of Section 25F of the Act of 1947 have not been complied with. Thus, the findings of facts recorded by the Labour Court are based on correct appreciation of entire evidence and material available on record and it cannot be said that the findings of the labour Court are erroneous or perverse or patently unreasonable or based on no material on record. The findings of facts recorded by the Labour Court do not suffer from any basic illegality or infirmity. Apart from that, under Article 227 of the Constitution of India, the High Court cannot interfere with the exercise of the discretionary power vested in the inferior Court or Tribunal, unless its findings are clearly perverse or patently unreasonable. While exercising the powers under Article 227 of the Constitution of India, the High Court does not act as Court of appeal. The High Court's power of revision under Article 227 of the Constitution would be restricted to interference in cases of grave dereliction of duty or flagrant violation of law, and would be exercised most sparingly, in cases where grave injustice would be done unless the High Court interferes. It cannot be used as appellate or revisional power nor will the High Court, in exercise of this power, substitute its own judgment for that of the inferior Court, whether on a question of fact or of law or interfere with the intra vires exercise of a discretionary power unless it is arbitrary or capricious or unless there was no evidence at all on which the inferior court could have come to conclusion it did or there was error of finding on a jurisdictional fact. From perusing the judgment and award dtd.14.2.2003 (Annex.5) passed by the learned Labour Court, Bhilwara, it does not reveal that there is patent illegality and irregularity or error of law apparent on the face of record and the findings recorded by the learned Labour Court are perverse. Therefore, the same do not require any interference by this Court under Article 226/227 of the Constitution of India. For the reasons mentioned above, the present writ petition is dismissed. No order as to costs.";