PANWAR, J. - (1.) BY the writ petition being S. B. Civil Writ Petition No. 2063/03 under Article 226 and 227 of the Constitution of India filed by petitioner Ganesh Lal (for short 'the workman' hereinafter) and writ petition being S. B. Civil Writ Petition No. 4198/01 filed by the State and Ors. (for short 'the employer' hereinafter) the award dated 16. 5. 2001 passed by nonpetitioner, the Judge, Industrial Disputes Tribunal and Labour Court, Udaipur (for short 'the Industrial Tribunal' hereinafter) in Labour Case No. 135/97, has been impugned, whereby the reference made by the State Govt. under Section 10 of the Industrial Disputes Act, 1947 (for short 'the I. D. Act' hereinafter) was answered and it has been held that the retrenchment of the workman w. e. f. 1. 6. 1992 is illegal and instead of ordering reinstatement, the Industrial Tribunal granted compensation of Rs. 41,000/- in favour of the workman.
(2.) SINCE both the writ petitions involve common question of law and facts and arise out of the same impugned award and between the same parties, therefore, with the consent of learned counsel for the parties, they are heard and being decided together. The workman seeks a direction to the non-petitioners- employer to reinstate him in service with full back wages and consequential benefits. The employer seeks setting aside of the impugned award dated 16. 5. 2001. I have heard learned counsel for the parties. A reference was made by the Appropriate Government on 28. 5. 1997 whether the removal of the workman Ganeshlal Paliwal by the employer w. e. f. 1. 6. 1992 was just and valid, and if not, what relief the workman was entitled to. A statement of claim was filed by the workman stating that he was appointed on the post of Chowkidar on 21. 5. 1987 at Distribution Center, Gogunda and worked there upto 31. 12. 1991. Thereafter he was transferred to Distribution Centre, Kotda where he worked upto 31. 5. 1992. It is also stated that in addition to the work of Chowkidar, he also performed the work of distribution of grains and was paid the salary per month on minimum daily wages basis. It has also been averred that he worked for more than 240 days in every calendar year from 21. 5. 1987 to 31. 5. 1992 and his termination from services on 1. 6. 1992 was against the principles of natural justice. Neither notice or notice pay nor any compensation have been given before termination of his services. Before the Industrial Tribunal, the employer filed reply to the claim made by the workman and stated that the workman was never appointed on the post of Chowkidar on regular basis, as a matter of fact he used to be engaged as and when there was requirement of work and therefore, there was no need to comply with the provisions of Section 25 F of the I. D. Act before terminating the services of the workman. The employer specifically came with a case that there is no sanctioned post of Chowkidar with them and those who were regularly appointed as Chowkidar, have also been declared surplus as there being no sanctioned post of Chowkidar. However, it was admitted that the workman was engaged as daily rated labourer and has not completed 240 days in a calender year. Considering the material placed before the Industrial Tribunal, the Industrial Tribunal came to the conclusion that the workman was not appointed on regular sanctioned post but he was appointed on daily wages basis and had completed 240 days in one calendar year and without complying with the provisions of Section 25- F of the I. D. Act, his services were terminated and therefore, the termination of the services of the workman w. e. f. 1. 6. 1992 was found to be illegal.
(3.) THE case set up by the workman is that he had been working as Chowkidar w. e. f. 21. 5. 1987 to 1. 6. 1992 and his services were terminated w. e. f. 1. 6. 1992. Be that as it may. THE Industrial Tribunal found the termination of the services of the workman in violation of the provisions of Section 25-F of the I. D. Act and instead of reinstating him, the workman was granted a lump sum compensation of Rs. 41,000/ -. Learned counsel for the workman submits that the Industrial Tribunal declined the relief of reinstatement and back wages on the ground that Sections 11 and 19 of the Rajasthan (Regulation of Appointment to Public Services and Rationalization of Staff) Act, 1999 (for short 'the Act of 1999' hereinafter) take away the power of reinstatement. Learned counsel further submits that the provisions of the Act of 1999 to the extent take away the powers of reinstatement/ appointment have been held to be unconstitutional by the Division Bench of this Court in Bhawani Singh and 17 Others Vs. State and Ors. 2002 (3) WLC (Raj.) 728 = (RLW 2003 (3) Raj. 1755) and therefore, the Industrial Tribunal fell in error in declining relief of reinstatement. Learned Deputy Government Advocate appearing for the employer submits that even according to the workman he was daily rated worker and he was not regularly appointed as there being no sanctioned post of Chowkidar and therefore, his engagement itself was dehors the rules and even if the provisions of the Act of 1999 to the extent taking away the powers of reinstatement have been held to be unconstitutional, yet in view of catena of decisions of Hon'ble Supreme Court, the petitioner is not entitled for relief of reinstatement with back wages. He further submits that since the engagement of the workman being not a regular and against the sanctioned post, therefore, awarding compensation in lieu of reinstatement by the Industrial Tribunal is also illegal. He has relied on decisions of Hon'ble Supreme Court in State of M. P. and Others Vs. Arjunlal Rajak (2006) 2 SCC 711 and Nagar Mahapalika (Now Municipal Corpn.) Vs. State of U. P. And Others (2006) 5 SCC 127 and a Division Bench decision of this Court in State of Rajasthan and Ors. Vs. Rashid Mohammad 2004 (5) WLC (Raj.), 463. ;