ASOPA, J. - (1.) BY the instant writ petition, the petitioner has challenged the award of the Labour Court dated 28. 4. 1993 (Annexure 26) mainly on the ground that reference was vague and further same become infructuous on account of taking workmen on duty during the conciliation proceedings.
(2.) BRIEFLY stated the facts of the writ petition are that 7 workmen were engaged/employed on 10. 11. 1978 as casual labour on daily wages on the post of Beldar by the petitioner. The workmen continued to work upto 30. 9. 1980, but from 1. 10. 1980 they refused to perform the work of excavation in the Right Main Canal Sub- Division Anta. It is further stated in the writ petition that the workmen absented themselves from duty w. e. f. 1. 10. 1980. On 3. 10. 1980, letters were sent by some of the workmen namely Ramkishan, Ravinder Kumar, Ratan Singh and Kishorilal to the Assistant Engineer alleging that they were not permitted to work on the site. Thereafter, on 5. 10. 1980, Moolchand Mistri of Distributory Sub-Division, Anta wrote a letter to the Assistant Engineer informing that the workmen Ratan Singh, Ram Kishan and Prahalad working under him had not come to duty. It is further stated by the petitioner that on 8. 10. 1980, the Assistant Engineer informed the workmen Ratan Singh, Ram Kishore and Prahalad that since they are not attending the duties, they would be treated as willful absentee from duty. On 9. 10. 1980, the workmen sent letter to the Assistant Engineer Complaining that despite their reporting on duty they are being marked as absent. On 15. 10. 1980, notice was issued by the Assistant Engineer to the workmen for joining the work. On 16. 10. 1980, a letter was sent by Moolchand Mistri to the Assistant Engineer reporting that the workmen had not reported on duty from 1. 10. 1980 to 16. 10. 1980. On 24. 10. 1980, show cause notice was issued by the Assistant Engineer to the workmen informing as to why action against them should not be taken under Rule 27 (5) and 26 (5) of the Work-Charge Rules, 1964 for remaining willful absent from duty voluntarily. On 6. 11. 1980, the workmen approached the Joint Labour Commissioner and a notice was issued by the Joint Labour Commissioner to the petitioner for reporting before the Conciliation Officer. During conciliation proceedings, the workmen have been allowed to join the duty. On 4. 8. 1981, the Assistant Engineer informed the Conciliation Officer that the workmen have reported on duty and they have been taken back on muster-roll. The workmen worked from March April, 1981 to August/september, 1981 for about 77 days to 114 days. From August/september, 1981, workmen again absented from duty. On 27. 2. 1982, the Conciliation Officer gave failure report and the dispute was referred to the Labour Court, Kota by the Government. The reference dated 1. 10. 1982 made by the Government is as under:- D;k lgk;D vfhk;urk] fmlvhc;wvj mi[k. M nkbz eq[; ugj pecy izkstsDv] vurk ftyk Dksvk }kjk muDs JfeD lozjh jfounz Dqekj 'kekz] jkefD'ku] ;ksxsunz Dqekj] izgykn] fD'kksjhyky] Daojyky o jru flag isvksfy;e csynkjksa Dks ftuDk izfrfuf/k ftyk ea=h Hkkjrh; etnqj la?k] Dksvk }kjk fD;k x;k gs lsok ls i`fkD Djuk mfpr ,oa os| gs ;fn ugha rks JfeD fDl jkgr Dks ikus Dk vf/kDkjh gs\** The workmen filed statement of claim before the Labour Court, Kota and reply was also filed by the petitioner. The workmen in their statement of claim clearly mentioned that their services have been retrenched on 1. 10. 1980 and the dispute is for the retrenchment made on 1. 10. 1980. On 1. 10. 1980, they have completed more than 280 days in services and their services have been retrenched without one month's notice or pay in lieu of notice and compensation, resulting in violation of mandatory provisions of Section 25-F of the Industrial Disputes Act, 1947 (hereinafter to be referred as ``the Act of 1947'' ). In reply, the petitioner Management has admitted two years' service of the workmen upto 1. 10. 1980 and further in reply to para 3 & 5 of the statement of claim, they have specifically admitted 240 days of service in last preceding one year till 1. 10. 1980, but the case of the petitioner Management was that the present case will not be covered by retrenchment and the workmen themselves have not attended the work and further the department has not made any retrenchment in the year 1980. Otherwise also, subsequent period of August/september, 1981, when the workmen again not reported on duty after joining in March/april, 1981 during conciliation proceedings, such subsequent period of service is relevant for calculation of 240 days.
(3.) IN support of their case, the workmen Kishorilal, Prahalad, Yogendra Kumar, Kanwarlal, Ravindra Kumar, Ramkishan and Ratan Singh filed their affidavits and they were cross examined by the petitioner - Management. The petitioner Management filed affidavits of B. N. P. Rajvanshi, Raghunath Singh, Nahar Singh, Moolchand, Nand Singh & Ranjeet Singh and they were cross examined by representative of workmen. The petitioner Management in para 5 of writ petition mentioned some facts of the subsequent mass retrenchment in Chambal Project wherein 7 persons senior to the respondents workmen have also been retrenched and this Court has upheld the retrenchment vide judgment dated 15. 9. 1983 (Annexure 25) in S. B. Civil Writ petition No. 1107/1983 and two other writ petitions, but there is no reference of the said judgment in the Labour Court's order, which clearly reveal that neither the said order dated 15. 9. 1983 was placed on record and exhibited nor the same has been referred at all. Otherwise also, the Labour Court is to proceed on its record and to gave a finding as per the evidence and provisions of Industrial Disputes Act, 1947. The Labour Court answered the reference in affirmative by holding that the present case is not of abandonment of service but is of retrenchment and while holding so, the Labour Court has relied upon on a letter of Mistri dated 30. 9. 1980 wherein he after naming the workmen has clearly stated that these workmen have been removed and their attendance be not recorded, so until the order of Assistant Engineer of taking back them in service is not received, he is unable to mark their attendance. The Labour Court has further considered the contradiction in the reply and the evidence that in reply it has only been said that they have not reported on duty whereas in evidence all the witnesses have been instructed to depose that these workers were earlier in plantation, but when they were asked to work for excavation, they have not reported on duty. Finally, the Labour Court came to the conclusion that it is a case of retrenchment and provisions of Section 25-F of the Act of 1947 have been violated and ordered to reinstate all the workmen with 50% back wages considering the fact of their job prospects during pendency of proceedings. ;