ASOPA, J. - (1.) WITH the consent of the parties, the matter was heard finally.
(2.) BY this writ petition, the petitioner Assistant Engineer, Left Main Canal, Sub Division, CAD, Bundi has challenged the award of the Labour Court dated 4. 12. 2002 in LCR No. 133/97 whereby the workmen have been reinstated with continuity in service with 25% back wages w. e. f. 12. 11. 1990 i. e. the date of raising dispute before conciliation officer except two workmen Hazara S/o Sawla at S. No. 3 and Nanda S/o Chittar at S. No. 10, who died during the pendency of the proceedings and their legal representative have not been brought on record, therefore, proceedings were dropped against them. Briefly stated the relevant facts of the case are that the State Government vide notification dated 9. 9. 1997 referred the following dispute under Section 10 (1) (c) of the Industrial Disputes Act, 1947 (in short ``the ID Act') to the Labour Court for its adjudication: ``whether the removal of workmen S/shri (1) Latur s/o Shri Kalu from 6. 1. 84, (2) Kishan s/o Shri Kall from 6. 1. 84, (3) Hajara s/o Shri Sanwla from 6. 1. 84, (4) Kedar s/o Raghunath from 6. 1. 84, (5) Gobari Lal s/o Shri Gomda from 6. 1. 84, (6) Dhakha Bai D/o Khumana from 6. 1. 84, (7) Kanhaiya Lal s/o Shri Naina from 31. 10. 83, (8) Sarvani D/o Manna from 31. 10. 83, (9) Pushpa Bai D/o Dhanna from 31. 10. 83 and (10) Nanda D/o Chhitar from 6. 1. 84, from service by Assistant Engineer, Left Main Canal Sub Division C. A. D. Bundi was legal and justified? If not, what relief and amount and workmen are entitled for?'' The respondents workmen filed their claim before the Labour Court, Kota and submitted that they were appointed by the Assistant Engineer, Left Main Canal, CAD, Bundi on different dates between 1. 4. 1974 to 1. 5. 1985. It was stated in the claim that some of the workmen were sought to be retrenched w. e. f. 19. 5. 1985. Against it, they have filed the civil suit together with an application for temporary injunction. Initially the civil Court granted temporary injunction in favour of the respondent workmen. However, the said temporary injunction in case of Latur, Nand, Srikishan, Hajara, Kedar, Gobarilal and Dakhan was vacated on 30. 9. 1983 and therefore, they were removed from service on 1. 10. 1983. In case of other respondents workmen Kanhaiya Lal, Sarvani & Pushpa Bai temporary injunction was vacated on 28. 10. 1983, therefore, they were removed from service on 31. 10. 1983. Even after the vacation of the stay order, the civil suit remained pending upto the year August, 1990 and on 20. 9. 1990, the said civil suit was withdrawn with liberty to file fresh one and conciliation proceedings were initiated on 12. 11. 1990. In the said statement of claim filed through Joint General Secretary, Hind Mazdoor Sabha, Bangali Colony, Chhawani Kota it was stated that there were more than 100 employees under the employer and therefore, provisions of Section 25-N of the ID Act are applicable, but neither three months' notice was given nor retrenchment compensation was given nor prior consent of the State Government was taken, therefore, same is wholly illegal. It is also stated by the workmen in their statement of claim that junior persons have been continued and further new employees have been employed, therefore, the said action of the employer is violative of Section 25-G & 25-H of the ID Act. The petitioner filed reply to the statement of claim disputing the dates of appointment of workmen and submitted the individual date of appointment of workmen in para 1 of the reply to the statement of claim. As per said reply also, the workmen have been employed between 1976 to 1981. The petitioner has also taken the objection of delay of 14 years in raising the industrial dispute and further denied that more than 100 employees were employed in the same division, therefore, there was no need for following the provisions of Section 25-N. As regard seniority list, it was also stated that seniority list of Kuli, Beldar and other casual workers was published on 28. 5. 1983 and the respondents workmen were junior most, therefore, their services have been terminated after giving one month's pay in lieu of notice through cheque with the further direction that in case there is difficulty in cheque then they can collect cash amount. Both the parties produced oral as well as documentary evidence, which was exhibited as Ex. 1 to 31. During the course of evidence, it has come on record that vide order dated 16. 4. 1983, three irrigation divisions including allied sub- divisions, one circle and office of the Additional chief Engineer Command Area Development, Chambal, Kota were closed or abolished and the retrenchment is in consequence thereof.
(3.) THE Labour Court after considering pleadings of the parties and evidence on record came to the conclusion that in the retrenchment order (Ex. 5) there is a mention that services of the workman have been terminated under Rule 26 of the Work- charged Employees Service Rules, 1964 (in short ``the Rules of 1964'') and the notice pay was sent through cheque, further the compensation and remaining salary was to be collected from the concerned Sub-division. THE Labour Court has held that there is no evidence on record that number of workmen were more than 100, therefore, section 25-N of the ID Act is not applicable. However, the Labour Court has further considered the fact of compliance of Section 25-F of the ID Act, which is applicable in case of less than 100 workmen. After considering the pleading of the parties, evidence on record and judgment of Supreme Court and this Court, the Labour Court came to the conclusion that simple mention of compensation and other salary to be collected from the sub- division will not amount to either simultaneous offer or tender or payment of compensation as required under Section 25-F (b) of the ID Act. THE Labour Court has further held that simply asking the respondents to collect whatsoever is due is not sufficient compliance of Section 25-F of the ID Act. THE Court has also came to the conclusion that there is no mention of the fact that pay of one month's notice and compensation are the payment under Section 25-F (a) & (b) of the ID Act. Placing reliance on Sain Steel Products vs. Naipal Singh & Ors.-AIR 2001 SC 2401, the Labour Court has given the finding that even mention of the fact to collect the compensation and remaining salary will not amount to offer in terms of Section 25-F of the ID Act. Submission of counsel for the petitioner is that mention of the fact to collect the amount of compensation and remaining salary from the concerned sub-division in the notice dated 29. 10. 1983 whereby services have been terminated w. e. f. 31. 10. 1983, is sufficient compliance of Section 25-F of the ID Act, therefore, award of the Labour Court is liable to be set aside. Counsel for the petitioner placed reliance on the judgments in Moinuddin & Ors. vs. Union of India & Ors.- 1981 LAB I. C. 697, R. D. Pandya vs. Gujarat State Handloom Deve, Corporation Ltd.- 2000 (8) SLR 297 and Hoshiarpur Central Co- operative Bank Ltd. Hoshiarpur vs. Presiding Officer, Labour Court, Jalandhar & Ors.- 2005-I LLJ 800. Alternatively, counsel for the petitioner submits that in case retrenchment is not held valid then also it will not be proper to grant the relief of reinstatement to the workmen after 24 years. Counsel for the respondents workmen submits that compensation has not been paid through cheques or drafts, therefore, it cannot be submitted that there was a valid tender of the amount and as regards offer, there is no reference that the compensation offered is retrenchment compensation as required under Section 25-F (b) of the ID Act, 1947. He further argued that there is no mention of any provision of ID Act, 1947, therefore, award of the Labour Court is justified. He placed reliance on the judgment of this Court in Raj. Canal Project, Vijaynagar Circle through Raj. State vs. Raj. Canal Rashtriya Mazdoor Union, Suratnagar & Anr. and judgment of the Supreme Court in Sain Steel Products vs. Naipal Singh & Ors.- AIR 2001 SC 2401 (supra) and on the issue of scope of Article 226 & 227 as well as for compensation in lieu of retrenchment place reliance on M/s. Tulsidas Paul vs. The Second Labour Court, W. B. & Ors. (1972) 4 SCC 205, Sadhana Lodh vs. National Insurance Co. Ltd. & Anr. (2003) 3 SCC 524. ;