ASOPA, J. - (1.) IN writ petition No. 4298/1993, the award of INdustrial Tribunal, Jaipur dated 3/12/1992 (Ann. 6) is under challenge whereas in another writ petition i. e. 2396/1996, the workman raised the grievance of non-compliance of the award, more particularly, proceeding under Section 33 (C) (2) of the INdustrial Disputes Act, 1947 (for short 'the Act') before Labour Court, Jaipur for computation of back-wages and other benefits as awarded by INdustrial Tribunal, Jaipur. The subsequent writ petition is arising out of execution proceeding of award which is under challenge in earlier writ filed by State, therefore, both the writ petitions are connected and being decided by this common order.
(2.) BRIEFLY stated, the facts of the case are that the workman was appointed as patwari in the regular pay-scale vide order dated 2/3/1973 against the leave reserve vacancy. The workman submitted the joining report on 5/3/1973 and he continuously worked from 5. 3. 1973 to May, 1974, but when the wages of the said period were not paid, the workman approached the payment of Wages Authority (for short 'the Authority') for getting wages from June, 1973 to May, 1974 by filing an application before the Authority and the Authority awarded the wages claimed by the workman. In the month of June, 1974, his services were terminated by an oral order. On 4. 5. 1982, the workman was taken back in service. He kept writing to the department to regularize the period of his service from May 1974 to 30/5/1982. The workman raised the industrial dispute regarding regularization of his service before the conciliation officer, but no settlement was arrived at and the failure report was submitted. On 27/8/1987 (Ann. 3), the State refused to make reference. Against the said order, the workman filed the writ petition which was registered as DBCWP No. 3213/1987 Harish Chandra Sharma vs. State wherein on 13/3/1989, the State was directed to make reference. The State Government, in compliance of the said order, made reference on 10/4/1989 to Industrial Tribunal, Jaipur as under : ...[Vernacular Text Ommited]... The workman filed claim petition and reply to the same, was filed by the State. After taking evidence and hearing both the parties, the Industrial Tribunal passed the award in favour of the workman declaring that the oral termination of the workman amounts to retrenchment which has been passed in violation of Section 25-F of the Act, therefore, the same was void and the workman was awarded continuity of service with backwages and in case, he is not paid the same within a period of three months, he will be entitled to 12% interest. Against the said award, the first writ petition i. e. SBCWP No. 4298/1993 has been filed by State wherein the said award was challenged mainly on the ground that there was no dispute before the conciliation officer for oral termination of the workman in June, 1974, therefore, the Government has acted beyond the dispute raised before the Conciliation Officer and, therefore, the reference is bad in law. Otherwise also, the dispute is not an industrial dispute, instead it is an 'individual dispute', which is not covered by Section 2-K of the Act. The oral termination was of June, 1974 and the workman has claimed continuity of service from 1/6/1974 to 3/5/1982 which was raised at the belated stage on 13/12/1985. Therefore, he is not entitled to get the backwages. Reply has been filed to the writ petition wherein it is submitted that the reference confer jurisdiction on the Industrial Tribunal and the same cannot be questioned before the Industrial Tribunal and further,the respondents failed to challenge the said reference before the High Court at the initial stage and once they have submitted to the jurisdiction of the Labour Court now it is not open for them to challenge the same. The respondent-workman has further submitted that a bare perusal of the reference would reveal that there is a reference of the termination of the services, therefore, the Industrial Tribunal was bound to adjudicate upon the same and has been rightly adjudicated by answering in affirmative on the basis of evidence. Counsel for the respondent-workman also stated in the reply that at no point of time, the parties were prejudiced on account of adjudication of the oral termination as the petitioner has claimed continuity of service from 1. 6. 1974 to 3. 5. 1982. The Industrial Tribunal has rightly held that the oral termination of May, 1974 is violative of mandatory Section 25-F of the Act. His services were terminated orally despite the fact that he has completed more than 240 days i. e. from 5. 3. 1973 to 30. 5. 1974 and he has neither been given any notice nor has been paid one month's pay in lieu thereof; he has also not been paid compensation for retrenchment. Before the Industrial Tribunal, the workman examined himself and was cross-examined on behalf of the petitioner. Shri B. S. Mathur, Executive Engineer filed affidavit on behalf of the petitioner who was cross-examined by the workman. As regards documentary evidence, the workman filed 14 documents and the petitioner-State filed 10 documents.
(3.) IN Para 7 to 11, the evidence has been discussed by the INdustrial Tribunal and the objection of the petitioner-State that the present dispute is not an industrial dispute, has been rejected by the INdustrial Tribunal on the ground that the matter is of termination, therefore, covered by the definition given in the Act as envisaged under Section 2-K. As regards jurisdiction and reference, the INdustrial Tribunal has held that in case any reference is sent to the INdustrial Tribunal, then it becomes necessary for the INdustrial Tribunal to adjudicate the same. IN Para 15, the finding with regard to non-compliance of Section 25- F has been given and ultimately, it was held by the INdustrial Tribunal that the termination of the services of workman is not proper and legal. He was directed to be reinstated with continuity of service and payment of all arrears of back-wages and in case the same is not paid within a period of three months, then 12% interest is to be paid and cost of Rs. 100/- was also imposed. The relevant portion of the award dated 3. 12. 1992 is reproduced hereunder: ...[Vernacular Text Ommited]... In the aforesaid writ petition No. 4298/1993, the first stay application was dismissed on 3. 9. 1993 and second stay application too was dismissed on 9. 2. 1994. The workman filed application under Section 33 (C) (2) of the Act for computation of the back- wages and raised a claim of Rs. 5,63,901/- which was partly accepted on 6. 10. 1995 by Labour Court to the extent of grant of Rs. 61,593/- against which workman filed SBCWP No. 2396/1996. The petitioner in the said application as well as in the aforesaid writ petition stated that he has been paid minimum of the scale taking the excuse of the pendency of the Court case and has not been given the revised pay scale which became due to him on 1. 9. 1976, 1. 9. 1981, 1. 9. 1986 and 1. 9. 1988. I have gone through the record of the writ petitions and have also carefully considered the rival submissions of the parties. ;