SUPERINTENDING ENGINEER O AND M Vs. AKHILESH KUMAR

JUDGEMENT

(1.) THIS writ petition under Articles 226 and 227 of the Constitution of India has been filed by the petitioners against the respondents on 25. 4. 2003 with the prayer that by an appropriate writ, order or direction, the impugned judgment and award dated 23. 9. 2002 (Annex. 5) passed by the learned Judge, Labour Court, Bikaner (respondent No. 2) by which termination of services of the respondent No. 1 Akhilesh Kumar through termination order dated 18. 11. 2000 (Annex. 13) was held to be improper and illegal and thus, the termination order dated 18. 11. 2000 (Annex. 13) was set aside and the respondent No. 1 was ordered to be reinstated back in service.

(2.) THE case of the petitioners as putforward by them in this writ petition is as follows: On the request of the respondent No. 1, the State Government through Notification dated 17. 10. 2001 referred the dispute to the respondent No. 2 Labour Court, Bikaner to the effect whether the termination of services of the respondent No. 1 Akhilesh Kumar by the petitioners through order dated 18. 11. 2000 (Annex. 13) was just, proper and valid or not. After receiving the dispute, the respondent No. 2 Labour Court, Bikaner issued notices to both the parties and in pursuance of that, the respondent No. 1 filed his claim petition (Annex. 1) before the respondent No. 2 Labour Court stating inter-alia that he was appointed as work-charge LDC vide order dated 13. 10. 1998 (Annex. 8) passed by the petitioner No. 1 Superintending Engineer (O&m) and in pursuance of that order Annex. 8, he joined his duties in the office of the petitioner No. 2 Assistant Engineer and he continued to work till 18. 11. 2000. It was further submitted by the respondent No. 1 that during that period his pay was increased from time to time and initially he was paid Rs. 1000/- p. m. to time and initially he was paid Rs. 1000/- p. m. and thereafter, it was increased to Rs. 1200/- p. m. and then it was increased to Rs. 1700/- p. m. It was further submitted by the respondent No. 1 that through order dated 18. 11. 2000 (Annex. 13), his services were terminated by the petitioners and before passing that termination order Annex. 13, no opportunity of hearing was given to him and apart from this, before terminating his services through order Annex. 13, compliance of mandatory provisions of Section 25 (F), 25 (G) and 25 (N) of the Industrial Disputes Act, 1947 (hereinafter referred to as "the ID Act") was not made and thus, the same was bad in law. Hence, it was prayed by the respondent No. 1 that the termination order Annex. 13 dated 18. 11. 2000 be quashed and set aside and he may be reinstated back in service with all consequential benefits. A reply to the claim petition (Annex. 1) submitted by the respondent No. 1 was filed by the petitioners before the respondent No. 2 Labour Court through Annex. 2 and it was submitted by the petitioners that no doubt the respondent No. 1 was appointed as work-charge LDC through order Annex. 8 dated 13. 10. 1998, but actually he should have not been appointed on that post as it was reserved for physically handicapped person and the respondent No. 1 has failed to prove his disability as per the standard fixed by National Employment Service (Annex. 7) and according to the standard fixed, the respondent No. 1 must have disability to the extent of 40% or more and since the respondent No. 1 was having disability only upto 10%, therefore, he was not entitled to appointment on the post of LDC and thus, his services were rightly terminated by the petitioners through order Annex. 13 dated 18. 11. 2000 and furthermore, before passing that termination order Annex. 13, a show cause notice Annex. 12 dated 15. 11. 2000 was also served upon the respondent No. 1. Hence, it was submitted that the respondent No. 1 was not entitled to the relief sought for and his claim petition Annex. 1 deserves to be rejected. THEreafter, both the parties led evidence in support of their respective case. After hearing both the parties, the learned Judge, Labour Court, Bikaner (respondent No. 2) through impugned judgment and award dated 23. 9. 2002 (Annex. 5) accepted the claim petition of the respondent No. 1 in the manner as indicated above holding inter- alia that since there was no dispute on the point that the respondent No. 1 was workman and the petitioners were employer and the dispute between them was industrial dispute and since compliance of mandatory provisions of the ID Act was not made by the petitioners before terminating the services of the respondent No. 1 through order Annex. 13 dated 18. 11. 2000, therefore, it was bad in law and thus, termination order Annex. 13 was set aside and the respondent No. 1 was ordered to be reinstated back in service. Aggrieved from the said judgment and award Annex. 5 dated 23. 9. 2002 passed by the respondent No. 2 Labour Court, Bikaner, the petitioners have preferred this writ petition. In this petition, the main submissions of the petitioners are as follows:- (i) That respondent No. 2 Labour Court has failed to consider that the appointment obtained by the respondent No. 1 was by way of forgery and concealment of material facts and thus, his appointment was void ab initio and therefore, provisions of the ID Act were not applicable in the case of the respondent No. 1. (ii) That respondent No. 2 Labour Court has also failed to consider that the respondent No. 1 was having only 10% disability, which did not make him eligible to claim appointment as according to the guidelines contained in the National Employment Service (Annex. 7), he must have 40% disability and therefore, from that point of view also, the impugned judgment and award Annex. 5 passed by the respondent No. 2 Labour Court cannot be sustained and liable to be set aside. A reply to the writ petition was filed by the respondent No. 1 and it has been submitted by the respondent No. 1 that he had not concealed anything as by the appointment order Annex. 8 dated 13. 10. 1998, only a disability certificate was sought by the petitioners and in pursuance of the said appointment order Annex. 8, he submitted the disability certificate Annex. 9 dated 15. 3. 1997 and therefore, to say that he concealed the fact that he was having only 10% disability was totally wrong one and for that, his services could have not been terminated. Apart from this, in the appointment order Annex. 8 dated 13. 10. 1998, the fact that disability should have been upto 40% was not specifically mentioned and therefore, no question of concealment of fact by the respondent No. 1 arises. It has been further submitted by the respondent No. 1 that before terminating his services through order Annex. 13 dated 18. 11. 2000, compliance of mandatory provisions of the ID Act was not made by the petitioners and thus, the respondent No. 2 Labour Court has rightly set aside that termination order Annex. 13 through impugned judgment and award dated 23. 9. 2002 (Annex. 5 ). Furthermore, the findings of the respondent No. 2 Labour Court holding that the termination of services of the respondent No. 1 through order dated 18. 11. 2000 (Annex. 13) was bad in law are based on correct appreciation of evidence and materials available on record and thus, they do not call for any interference by this Court under Articles 226 and 227 of the Constitution of India. Hence, this writ petition deserves to be dismissed.

(3.) THERE is also no dispute on the point that as per the guidelines contained in National Employment Service (Annex. 7), disability, which was sought, was 40%.