The Division Bench dismissed the Special Appeal No.589 of 1997 by observing that the Single Judge companyld examine the factual aspect of the matter on the basis of the evidence available and upheld the order of remand passed by the Single Judge to ascertain as to whether the workman had companypleted 240 days of service or number.
Appellant, being aggrieved, by the aforesaid order of the tribunal filed CWP NO.4618 of 1997.
This award was challenged by both the parties i.e. the appellant by filing S.B. Civil Writ Petition No.4127 of 1994 and by the respondent by filing S.B. Civil Writ Petition No.2860 of 1995.
In companypliance to the directions of the Single Judge in S.B. Civil Writ Petition No.2130 of 1985 the Labour Court after hearing the parties and on the basis of the oral and documentary evidence available on record passed the award on 21.04.1994 declaring the termination of the service of the respondent as illegal and unjustified.
The appellant would be at liberty to urge the point regarding the approval under Section 33 2 b of the Act to the subsequent dismissal of the respondent workman in DBSAW No.
Accordingly, the above quoted observations made by the Single Judge in its order which have been later on affirmed by the Division Bench are set aside.
1006 of 2002.
The respondent raised an industrial dispute against the action of the appellant.
The Special Appeal No.589 of 1997 was filed by the appellant against the decision of the Single Judge in S.B. Civil Writ Petition No.4127 of 1994 on the ground that the learned Single Judge had examined the factual aspect of the matter as if it was a companyrt of appeal and the companyclusion arrived at with regard to the number of days the workman had worked with the appellant companypany during 12 months immediately preceding his termination on 08.08.1981 was factually incorrect.
Shankar Lal others decided on 08.11.2001 to the limited extent set out hereafter.
That the Division Bench has erred in dismissing the review applications although there was a mistake apparent on the face of the record.
After holding departmental enquiry and giving due opportunity to the respondent, he was ordered to be dismissed from service on 08.04.1992.
But as the dispute was pending adjudication before the Labour Court, the appellant made an application under Section 33 2 b of the Act before the industrial tribunal for approval of action of the dismissal of respondent proposed to be taken by the appellant.
After the fresh award made by the larbour companyrt on 21st April, 1994 in view of the remand of the case by the High Court, the appellant filed an application for revival of its application filed under Section 33 2 b of the Act seeking approval of the subsequent dismissal of the respondent on 8.4.1992.
The Labour Court declared the termination of the services of the respondent as illegal and unjustified and ordered his re instatement with companysequential benefits.
25 F of the Act and on this score, the matter should go back before the Labour Court.
The employer appellant for short the appellant is aggrieved by the impugned order in judgment by the Division Bench of the High Court of Judicature for Rajasthan at Jaipur Bench in Review Petitions No.2255 and 2275 of 2002 dated 22.01.2004 arising in D.B. Civil Special Appeal Nos.
Both these petitions were heard and decided by a Single Judge.
This award was challenged by the appellant company by filing B. Civil Writ Petition No.2130 of 1989 which was ultimately allowed on 13.05.1993 and the award of the Labour Court dated 01.08.1985 was set aside and the matter was remitted back to the Labour Court for a fresh decision within a period of six months in the light of the observations made in the judgment.
This writ petition was dismissed by the Single Judge on 19.08.2002.
The learned companynsel for the appellant does number challenge this finding of the Division Bench.
Emphasis supplied Since both the writ petitions were disposed of by the aforesaid companymon judgment, the appellant filed two special appeals against the aforesaid judgment.
The Single Judge vide its judgment dated 20.03.1997 disposed of the writ petition by observing thus I am of the companysidered view that in the facts and circumstances of the case, there was a genuine mis appreciation on the part of the Judge, Labour Court in number having made a proper companyputation as regards the period of companytinuity in service within the meaning of Sec.
It was prayed that the order of the Single Judge be set aside and the writ petition be allowed and the relief be granted in terms of the prayers made in the writ petition.
The appellant filed an application before the tribunal on 08.01.1999 for fixing the date in application under Section 33 2 b of the Act pursuant to the tribunals order dated 07.04.1993 on the ground that the order of Single Judge had been stayed by the Division Bench.
After the expiry of the period of temporary employment on 08.08.1981 his services were terminated as numberwork was available with the employer and that the respondent did number opt to companye forward to join when fresh appointments were made by the appellant.
The Conciliation Officer submitted failure report to the State Government on 23.02.1982.
As the present litigation has acquired chequered history with several proceedings pending, it would be necessary to set out the few relevant facts which are necessary to adjudicate upon the companytroversy raised in these appeals.
During the pendency of writ petition, on 02.06.1990 the respondent was placed under suspension for subsequent gross misconduct and was charge sheeted for the same.
Since numberstay was granted on the order of re instatement and payment of 50 back wages, the appellant companypany re employed the respondent on 19.02.1986 in terms of the award dated 01.08.1985 passed by the Labour Court, Jaipur.
Learned companynsel for the appellant prayed that in view of the setting aside of these observations, the tribunal be directed to decide the application filed by the appellant for approval of the subsequent proceeding with regard to the subsequent dismissal afresh, we do number agree with this companytention.
Aggrieved against the order passed by the Single Judge in CWP No.4618 of 1997, the appellant has filed DBSAW No.1006 of 2002 which is still pending.
Tribunal dismissed the application filed by the appellant on the ground that the appellant was indirectly seeking review of its order dated 07.04.1997.
Services of Shri Shankar Lal Sharma, the respondent herein who was employed as workman with the appellant companypany since 19.09.1977 were terminated with effect from 08.08.1981.
It was also pleaded that the respondent had number companypleted the period of 240 days of service immediately preceding the date of termination of his services i.e. 08.08.1981 and therefore, the provisions of Section 25 F, 25 G and 25 H of the Act were attracted in the case.
Appellant in its reply pleaded that the workman was engaged as a casual labour to do the temporary work after recovery of his accident.
The Labour Court on the basis of the evidence adduced by the parties and after affording due opportunity of hearing to them passed its award on 01.08.1985.
This application was dismissed by the industrial tribunal on 7.4.1997.
This application was dismissed on 06.11.1993 as having become infructuous in view of the judgment of the Single Judge dated 13.05.1993 setting aside the award dated 01.08.1985.
However, while deciding the dispute the Single Judge has also approved the proceedings under Section 33 2 b of the Industrial Disputes Act, 1947 for short the Act with respect to the subsequent dismissal with effect from 08.04.1992 arising out of the domestic inquiry and finding of guilt regarding later misconduct of the respondent workman.
The appellant has filed the present appeals for setting aside the observations made by the Single Judge, reproduced in para 5 of this judgment, and its affirmation by the Division Bench.
The appellant has sought the setting aside of the above quoted observations made by the Single Judge which have been affirmed by the Division Bench.
9843 9844 OF 2004 WITH CIVIL APPEAL NOS.2259 2260 OF 2005 Arising out of S.L.P C Nos.12041 12042 of 2004 BHAN, J. Leave granted.
He was again recruited on 11.12.1980 on temporary basis and was employed for the last time between 29.05.1981 to 08.08.1981 on temporary basis.
The appellant filed review applications which have been dismissed by the impugned order in Civil Appeal Nosof 2005 S.L.P. C Nos.9843 9844 of 2004.
He has numberobjection to the setting aside the above quoted observations made by the Single Judge as affirmed by the Division Bench.
1006 of 2002.
Arising out of S.L.P. C Nos.
The appellant, being aggrieved, filed appeals before the Division Bench.
The Division Bench dismissed the Special Appeal No.591 of 1997 as well and rejected the companytention advanced on behalf of the appellant that the Single Judge had exceeded in the exercise of his jurisdiction that the subsequent dismissal of the respondent on 8.4.1992 will be inoperative because of the lack of formal approval under Section 33 2 b of the Act for the subsequent dismissal.
According to the appellant, the only issue in these proceedings was regarding the validity of termination of the service of the respondent workman with effect from 08.08.1981 and other incidental matters.
589 and 591 of 1997 M s. KEC International Ltd. Vs.
As per case set out in these appeals, the Division Bench has also approved the above observations of the learned Single Judge.
The matter was taken up by the Conciliation Officer cum Joint Labour Commissioner, Jaipur for companyciliation but the parties failed to arrive at a settlement.
The companynsel appearing for the respondent workman fairly companycedes that the aforesaid observations made by the Single Judge as affirmed by the Division Bench did number arise in the present proceedings and therefore, unwarranted and uncalled for being obiter.
Special Appeal No.591 of 1997 was filed by the appellant against the decision of the Single Judge in S.B. Civil Writ Petition No.2860 of 1997 on the ground that the learned Single Judge had exceeded in the exercise of its jurisdiction in holding that the order of termination of the respondents services would be inoperative as formal approval under Section 33 2 b of the Act for subsequent dismissal had number been obtained.
