Mohammad Rafiq, J. - (1.) THIS writ petition has been preferred by petitioner Radha Krishan Sharma against the award dated 1/2/2011 passed by Labour Court, Kota to the extent it has directed that petitioner shall be paid a sum of Rs. 15,000/ - in lieu of reinstatement. Brief facts to the case are that petitioner was appointed as daily wage Munshi on 13/10/1978 with Urban Improvement Trust, Kota (for short, the "UIT"). A criminal case was registered against him for offence u/Ss. 467, 468 and 420 IPC at Police Station Dadabari, Kota on allegation that he by forging the title documents tried to illegally trespass over the land of someone else. He was arrested and charge -sheet was filed against him. Respondents terminated his services on 1/7/1984. An industrial dispute was referred on the validity of his termination from service to the Labour Court, Kota by the appropriate government vide notification dated 19/6/2009. Labour court held the action of the respondents violative of Section 25 -F of the Industrial Disputes Act, 1947 (for short, the "Act of 1947") but in view of delay between the date of removal and the date of making reference, instead of directing his reinstatement, granted him a lump sum compensation of Rs. 15,000/ -.
(2.) SHRI Pradeep Mathur, learned counsel for the petitioner has submitted that after petitioner was appointed on the post of Munshi on 13/10/1978 with the respondent -UIT Kota, his services were regularized vide order dated 7/6/1983. He was conferred with the semi -permanent status w.e.f, 1/4/1982. Petitioner submitted an application on 20/7/1984 seeking leave of two days due to illness from 20/7/1984 to 21/7/1984, which was duly sanctioned. Petitioner submitted another application on 23/7/1984 for grant of three days leave upto 25/7/1984. Even that leave was granted. Petitioner has on that day had balance of eleven leaves in his account. After recovering from illness, when petitioner reported back on duty in the first week of January, 1985, he was not allowed to join duties. It is contended that UIT was regularly giving false assurance that positive would be done in the matter and in this way, wasted his initial 2 -3 years. Petitioner then went to his in -laws place at Baroda (Gujarat). Whenever he came to Kota, he requested the UIT to allow him to join the duties but all in vain. Finally, on 18/11/1993, petitioner filed an application before the Joint Labour Commissioner, Kota. The proceedings of conciliation were initiated but upon failure, the conciliation officer submitted his failure report to the State Government whereupon, reference was made to the labour court vide notification dated 21/6/2001. Terms of reference were later amended vide notification dated 19/6/2009. Learned counsel argued that the labour court having held that action of the respondents was violative of Section 25 -F of the Act of 1947, could not instead of directing his reinstatement, directed for lump compensation of Rs. 15,000/ - in lieu of reinstatement. Such award of the labour court is wholly erroneous and against the settled proposition of law. Learned counsel submitted that apart from Section 25 -F, respondents also violated Sections 25 -G and 25 -N of the Act of 1947. They neither adopted the procedure of last come first go nor prepared the seniority. Juniors to the petitioner were still allowed to continue in service. When the labour court has found the action of the respondents violative of Section 25 -F, natural course would be to direct reinstatement of the petitioner -workman. It is argued that no notice of his absence was served upon the petitioner. Service of notice through newspaper does not constitute the sufficient service as petitioner at that time was in Gujarat at his in -laws place. Notice should have been sent in the newspaper having circulation in Gujarat. It is argued that delay by itself cannot be a reason to decline relief of reinstatement. The dispute in criminal case was in between petitioner and his neighbour and therefore labour court has recorded wholly erroneous finding that it was a case of loss of faith and therefore his reinstatement cannot be ordered. In any case, the FIR was lodged at Police Station Dadabari, Kota in 1982, whereas services of the petitioner were terminated in 1984. Petitioner has now been acquitted of the charge in that case. Even the first information report does not prove allegation against petitioner. Petitioner was not even named in the FIR and in any case, he was acquitted later. It is argued that even if there was delay in making of reference, labour court ought to have molded the relief by withholding back wages either in full or partly but it could not have directed payment of lump sum compensation in lieu of reinstatement. In the present case, petitioner had fully explained the reason of his absence. Mere delay cannot be a reason to deny reinstatement as the respondents have failed to prove that petitioner was gainfully employed elsewhere during this interregnum. The petitioner in support of his oral evidence, examined himself by filing his affidavit in support of documentary evidence, exhibited documents from Exh.W1 to Exh.W8, whereas from the side of department, Anil Galav was examined by filing his affidavit and in documentary evidence, the department exhibited the documents from Exh.M1 to Exh.M7. Learned counsel submitted that this witness has submitted that petitioner was conferred with the semi permanent status w.e.f. 1/4/1982 and only pay of one month was given to the petitioner and compensation was not paid and further that no seniority was published prior to his termination. It was argued that petitioner for the first time raised the dispute before the labour court on 18/11/1993 and failure report was prepared by the conciliation officer on 18/10/1995 but the same was not sent to the appropriate government with the result that petitioner had to again raise the dispute. It was only thereafter for the second time, failure report was prepared on 23/3/2001 and sent to the government. The period of delay therefore cannot be attributed to the petitioner. In support of his arguments, learned counsel for the petitioner has cited the judgments of the Supreme Court in State Bank of India vs. N. Sundra Money, , Anoop Sharma vs. Executive Engineer, Public Health Division No. 1, Panipat (Hr.), 2010 LLR 627, Deep Chandra vs. State of U.P. & Anr., : 2001 (88) FLR 508, Ajaib Singh vs. The Sirhit Co -operative Marketing -cum -Processing Service Society Ltd. & Anr., : AIR 1999 SC 1351, H.S. Rajashekara vs. State Bank of Mysore & Anr. : : (2012) 1 SCC 285 and Director of Horticulture and another Vs. H.A. Kumar, : 2013 (138) FLR 1089. Learned counsel for the petitioner has also placed reliance upon the judgments of this Court in Prithvi Raj vs. Labour Court, Jodhpur & Ors., 2005 (8) RDD 3280 (Raj.), Ram Lal vs. Judge, Industrial Tribunal -cum -Labour Court, Udaipur & Ors., : 2005 (106) FLR 651, division bench judgment of this Court in Aaram Saini vs. The Presiding Officer, Central Government Industrial Tribunal & Labour Court, Jaipur & Ors., 2012 WLC (Raj.) UC 663 and another division bench judgment of this Court in State of Rajasthan & Ors. vs. Krishna Kumar & Anr., 2012 (4) CDR 2112 (Raj.) (DB) and the single bench judgment of this court in State of Rajasthan vs. Kalia & Anr., 2012 WLC (Raj.) UC 346. Reliance has also been placed on the division bench judgment of this Court in Smt. Gulab Devi vs. Senior Divisional Manager, LIC & Ors., dated 7/12/2011 passed in D.B. Civil Special Appeal (Writ) No. 913/2006. It is, therefore, prayed that the writ petition be allowed.
(3.) SHRI Satya Narain Kumawat, learned counsel for the respondents has opposed the writ petition and argued that petitioner was engaged as Munshi initially only for a period of two months on work -charged basis from 20/9/1978. Subsequently he was conferred with the semi permanent status w.e.f. 1/4/1982. It was denied that petitioner was given permanent status. It is submitted that petitioner firstly submitted application dated 20/7/1984 (Ann.3) for grant of leave (Ann.3) on the ground of urgent house work as reason of his absence, whereas in his second application for extension of leave dated 23/7/1984 (Ann.4) he has mentioned the reason of illness of his brother -in -law but contrary to those reasons, now for the first time, the petitioner has given the third reason that he was ill. Such conduct of the petitioner makes his absence without leave being granted willful. Notice was published in the newspaper for his last known address, despite that, petitioner did not report back on duty. It was argued that allegation against him was quite serious as he was charged for offence of making forgery and embezzlement of public money causing monetary loss to the respondent -UIT. Since he was employee of UIT, he was not expected to indulge in fabrication of records of the UIT so as to grab the land of someone else. Even if he has been acquitted by extending the benefit of doubt, it would not be a reason to hold the award of the labour court in not directing his reinstatement, as illegal. The services of the petitioner were retrenched on 1/7/1984 and the petitioner as per his own showing had raised the industrial dispute before the Joint Labour Commissioner on 18/11/1993. There was no explanation of this delay of 9 years even though subsequently also, petitioner did not take any step to pursue the matter till 2001 when he approached the labour department. The relief of reinstatement in such matter cannot be therefore granted.;