VYAS, J. - (1.) HEARD learned counsel for the petitioner.
(2.) IN this writ petition, the petitioner is challenging the award dated 15. 11. 1995 passed by the learned Judge, Labour Court, Jodhpur whereby the Labour Court passed award in favour of the workman respondent Jabbar Singh and it is ordered that the workman may be reinstated in service with 50% backwages both the date of the registration of the case i. e. 16. 8. 1991. According to the facts of the case, the respondent workman Jabbar Singh raised an industrial dispute before the conciliation officer and it is stated by him that initially he was appointed in the petitioner industrial establishment on 4. 7. 1987 as room- boy and he continued on the said post until 1. 7. 1989 when his services were terminated by an oral order without compliance of Section 25f of the Industrial Disputes Act. The conciliation officer issued notice to the petitioner and upon failure of the conciliation proceedings the mater was sent to the appropriate Government. Consequently, the industrial dispute was referred to the learned Judge, Industrial Tribunal-cum-Labour Court, Jodhpur on 16. 8. 1991. The Labour Court issued notice to the petitioner and workman. Before the learned Judge, Labour Court, the workman categorically stated that he was appointed as room-boy on 4. 7. 1987 at a salary of Rs. 436/- per month and he continued on the said post till 30. 6. 1989, therefore, he completed more than 240 days in the service in a calendar year but his services were dispensed with by an oral order on 1. 7. 1989 and before his retrenchment no compensation nor any notice was given which is mandatory requirement for retrenchment under Section 25f of the Industrial Disputes Act for a valid retrenchment. In reply to the claim filed by the respondent workman, it was specifically stated in the written-statement by the petitioner that the contention of the claimant workman with regard to his appointment on 4. 7. 1987 is totally incorrect and, in fact,he was provided appointment vide appointment order dated 5. 12. 1988 on probation for one year on the post of Farrash. Thereafter, he left the job on 1. 7. 1989 and remained absent from duty. Before the Labour Court, the petitioner non-claimant contended that a telegram was sent to the workman to attend the office but he did not attend the office, therefore, his case did not fall in the definition of retrenchment. It was therefore argued that there is no question of compliance of Section 25 F this case. Learned counsel for the petitioner, Shri Arun Bhansali vehemently submits that though a specific reply was given to the claim filed by the workman that he was appointed on 5. 12. 1988 and he continued on the said post till 30. 6. 1989; but, thereafter, he left the job on his own and, in the circumstances, a telegram was sent to him. However, the workman did not report on duty. It is argued by Shri Bhansali that at the time of a judication the learned Judge, Labour Court was under obligation to first decide the question of completion of 240 days in a calendar year by the workman then, thereafter, it may be decided whether the workman left the services or his services have been retrenched. It is submitted that bare perusal of the impugned award shows that the learned Judge, Labour Court has decided the matter while taking it for granted that the workman completed 240 days. According to Shri Bhansali, the learned Judge, Labour Court has not considered the reply filed by the petitioner establishment with regard to tenure of appointment of the workman and without recording its finding and considering specific reply of the petitioner to the claim, upon presumption that the workman completed 240 days, went on to hold that the termination of the workman from services was illegal.
(3.) IT is contended by learned counsel for the petitioner that according to the admitted documents it is clear that vide Annex. 1 the workman was appointed on 5. 12. 1988 on the post of Farrash for one year on probation and the said document was before the learned Judge, Labour Court. Therefore, obviously the learned Judge, Labour Court committed illegality while accepting the tenure of service of the workman as more than 240 days. IT is argued that when the petitioner establishment disputed the date of appointment of the workman then it was the duty of the Court to first adjudicate upon the question of completion of 240 days of service by the workman and, only thereafter, the Labour Court ought to have proceeded to decide the controversy with regard to retrenchment. Learned counsel for the petitioner next contended that it is not a case of retrenchment but it is a case of abandonment of service because on 1. 7. 1989 the workman left the job and did not turn up on duty, therefore, it is not a case of retrenchment so as to attract the provisions of Section 25f of the Industrial Disputes. Act. It is, therefore, contended by learned counsel for the petitioner that the Labour Court has wrongly arrived at the finding that there is violation of Section 25f holding that the services of the workman were terminated without compliance of section 25f of the Industrial Disputes Act. I have perused the reply filed by the respondent workman and also perused the award impugned. ;