MADAN, J. - (1.) THIS special appeal preferred by the Executive Engineer CAD Kota (appellant) arises out of judgment/order dated 18. 8. 98 of the learned Single Judge of this Court, whereby the learned Single Judge while upholding the order dated 24. 2. 1997 of the Labour Court Kota directed reinstatement of the respondent workman with a direction that he shall be entitled to claim 40% of the back wages and the impugned order of the appellant by which services of the workman were terminated by virtue of having been declared surplus, was quashed and set aside.
(2.) BEFORE we deal with the rival contentions and legal proposition, we deem it appropriate to refer to the term of Reference made to the learned Labour Court by the State Government on the representation of the workman as per provisions contained in Section 10 (1) (g) of the Industrial Disputes Act (for short "act") - " Whether the employer Executive Engineer `bain Nahar' CAD Kota was justified in terminating services of his employee Satya Narain s/o Onkarlal who was working as Mate w. e. f. 31. 10. 1983 ? If not, to what relief the workman is entitled ?" The respondent workman filed a statement of his claim before the Labour Court Kota consequent upon his termination by the appellant, upon which a reference was made by the State Government, which was registered as LCR No. 54/93. It was stated that the respondent workman was initially appointed on the po-st of Mate on 26. 12. 1976 on daily wages basis and after he had rendered requisite period of service of about three years, he was declared semi-permanent. His claim was countered by the appellant Department before the Labour Court on the grounds inter-alia that since few of the divisions working under the CAD Kota were abolished thereby looking to the surplus strength of the employees it was not possible for the department to withstand financial strain of paying wages to the said employees and in view of the excess staff, the appellant department was left with no option but to direction retrenchment of the excess staff on the basis of the relative seniority. It was further contended on behalf of the State that before affecting retrenchment of the employees including the respondent workman, a due notice alongwith compensation as per Section 25f of the Act was given and hence there was no violation of provisions of the Act. The respondent workman strongly refuted aforesaid contentions of the employer. Consequent upon which, the Labour Court directed both the parties to lead their evidence in support of their respective claim and counter claims. The learned Labour Court after hearing the parties and analysing the evidence led by the parties before it passed the impugned Award dated 24. 7. 97 (Ann. 3) in favour of the workman by which his termination was held illegal and directed that the respondent workman shall be entitled to reinstatement in service only with 40% of the back wages, against which, the appellant filed writ petition which has been dismissed by the learned Single Judge vide judgment/order dated 18. 8. 98 upholding the Award of the Labour Court. Hence this appeal. Before we advert to the contentions advanced by the learned counsel for the parties, we would like to discuss briefly the contentions as to the salutary provisions of the Act wherein certain safeguards have been provided to the work-man.
(3.) THE workman had challenged the impugned order of his termination from service before the Labour Court on the grounds inter alia that as per provisions of Section 25-N of the Act he was entitled to three months prior notice indicating therein reasons for his retrenchment and it was only after expiry of the period of notice or the workman had been paid compensation in lieu of such notice i. e. wages due and admissible to him for the period of notice that his services could be terminated. It was further contended by him that since neither notice of three months was served on him indicating therein reasons for his retrenchment nor he had been paid wages for the period in lieu of notice and also prior permission of the Government or appropriate authority specified by the Government by a notification in official gazette had not been obtained as per Section 25-N (1) (a) & (b) of the Act, the employer was not justified in terminating his services and the respon-dent was entitled to reinstatement. THE aforesaid contentions were controverted by the appellant that the notice period as per Rule 26 (1) of the Rajasthan Public Works Department (Buildings and Road including Gardens, Irrigation, Water-Works and Ayurvedic Department) Work Charged Employees Service Rules, 1964 (for short "work Charged Rules") is only one month in case of monthly rated em-ployee and two weeks in case of other semi permanent employees and therefore, in view of the fact that the respondent workman was work charged employee and two weeks in case of other semi permanent employees and therefore, in view of the fact that the respondent workman was work charged employee and his services were rightly terminated in accordance with Rule 26, of the aforesaid Work Charged Rules and as per requirement of Rule 26, referred to above, a notice was given to the respondent workman of one month's salary in lieu of notice period which he did not accept. THEreafter the retrenchment notice was pasted outside office of the appellant in which it was clearly mentioned that the persons who wanted cash payment could take the same from the office but the respondent wilfully avoided to accept the same. It was further contended by the department appellant that no notice is required to be served on the workman as per Rule 24 of the Work Charged Rules. We have heard the learned counsel for the parties and examined their rival contentions so also legal position on the question at issue. Prima facie, we are of the view that since the respondent is a workman within the purview of the Act and hence is entitled to certain safeguards, which are admissible to him whose services have been illegally terminated by the employer in violation of salutary provisions of the Act. Section 25-N of the Act stipulates that no workman employed in any industrial establishment to which Chapter V-B applies, who has been in con-tinuous service for not less than one year under an employer shall be retrenched by the employer until,- (a) the workman has been given three months notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice; and (b) the prior permission of the appropriate Government or such authority as may be specified by that Government by notification in the Official Gazette (hereafter in this section referred to as the specified authority) has been obtained on an application made in this behalf. Thereafter as per provisions of Section 25-N (2), if the employer is desirous of terminating services of a workman, whether he is daily rated workman or semi-permanent or permanent employee of an industrial establishment, it is mandatorily required of the employee to move an application for obtaining prior permission under sub-section (1), to the appropriate authority in a prescribed man-ner indicating clearly reasons for the intended retrenchment and a copy of such application has also got to be served simultaneously on the workman concerned in the prescribed manner. If such an application has been made, appropriate Government or specified authority has to embark upon the process of making inquiry as it thinks fit and that too is subject to the condition of giving reasonable opportunity of being heard both to the employer as well as workman concerned and also persons interested in such retrenchment and after making such an inquiry, the appropriate authority has to ascertain genuineness and the adequacy of the reasons stated by the employer regarding such termination and thereafter having regard to the interest of the workman and after taking into consideration other rele-vant factors, the appropriate authority may for reasons recorded in writing either grant permission or refuse to grant such permission by communicating a copy of such order to the employer and the workman. ;