Mohammad Rafiq, J.
1. The petitioner have prayed for setting aside the award dated 13th October, 1998 passed by the Labour Court, Bikaner and its consequential notification dated 18th August, 1999. The case set up by the petitioners in the memo of writ petition is that the respondent-workman was engaged as a part time worker during Famine Relief Works on fixed monthly payment of Rs. 75. A copy of the resolution of the Gram Panchayat has been placed on record to substantiate this. Apart from working with the petitioner, the respondent-workman was also running a Grocery Shop in his village and, therefore, ho on his own accord, stopped working in Famine Relief Works from the year 1987. The petitioners have placed on record resolution of the Gram Panchayat, Gulpura passed on 7th December, 1997 to show that the respondent was running a Kirana Shop for the last 15 years. This according to the petitioners was the reason for his absence from duty. The respondent submitted an application before the Labour Commissioner Churu some time in the year 1990 alleging therein that he worked with the petitioner-management from 13th February, 1980 to 30th October, 1987. His services however were terminated with effect from 1st November, 1987 in violation of Sections 25-F and 25-G of the Industrial Disputes Act, 1947 (for short the 'Art of 1947'). It was clarified by the management that the respondent-workman was engaged only as a part time worker on monthly payment of Rs. 75 and he used to work only for few hours for 1 or 2 days in a week as and when meeting of the Gram Panchayat was convened. Neither was there any post of Assistant Secretary nor the respondent was engaged/appointed on any such post of Assistant Secreyary. In fact, the respondent-workman left the aforesaid part time job on his own will with effect from 1st March, 1985 because he was already pre-occupied in connection with his domestic works and Grocery Shop. Hence, this writ petition.
On receipt of the failure report, the State Government vide notification dated 16th November, 1993 made a reference to the learned Labour Court, Bikaner on the question whether action of the petitioner-management in removing the respondent-workman from their service with effect from 1st March, 1985 is legal and valid and if not, then what relief the respondent-workman was entitled to.
2. The learned Labour Court, Bikaner vide its award dated 13th October, 1988 decided the matter against the petitioner-management and answered the reference in negative holding that removal of the workman by the management from the service with effect from 1st March, 1985 was not legal and justified and further that the workman was entitled to reinstatement with continuity of service from 1st March, 1985. It however did not award back wages to the workman from the date of removal till passing of the award, although he was held entitled for continuity in service and the salary from the date of passing of the award.
3. The respondent-workman has filed reply to the writ petition. In the reply it has been denied that the respondent-workman was engaged in Famine Relief Work. It has also been denied that the respondent abandoned the job. The petitioners cannot be allowed to assert these facts because they did not avail the opportunity to submit any evidence before the learned Labour Court in support of their case. They did not even put a single question to the witnesses of the workman suggesting his employment in Famine Relief Works or that his appointment was a tenure appointment It has been reiterated that the petitioner was appointed on the post of Assistant Secretary and was required to work in the Gram Panchayat itself. No evidence to prove the fact that the respondent was appointed and working in the Famine Relief Works or that there was no post of Assistant Secretary has been produced by the management. It has been stated that the burden of proof regarding the workman having abandoned the service lies heavily on the management and such assertion cannot be accepted on mere ipse dixit of the management. It is, therefore, prayed that the writ petition be dismissed.
4. I have heard Shri Rameshwar Dave, learned Dy. Government Advocate for the petitioner and Shri R.S. Saluja, learned Counsel for the respondent-workman.
5. Shri Rameshwar Dave learned Dy. Government Advocate argued that there was no post of Assistant Secretary and no such post ever existed with the Gram Panchayat Gulpura so as to accept the contention of the respondent that he was working on such post. The learned Dy. Government Advocate has invited my attention to the affidavit filed by officer-in-charge before this Court on 4th September, 2006 with which copy of the Government order dated 18th October, 1996 passed by the Additional Secretary-cum-Director (Rural Development) and Panchayati Raj Department has been produced. In this order it has been stated that there was no post of Assistant Secretary in the Gram Panchayat nor was any such post sanctioned. It has been, therefore, ordained upon all the Gram Panchayats not to engage anyone as Assistant Secretary. The learned Dy. Government Advocate has argued that the petitioner was basically engaged in the Famine Relief Works which category of work is excluded from the purview of the Industrial laws and, therefore, when the Industrial Disputes Act was not applicable, there could be no case for violation of Sections 25-F and 25-G of the Act. He has relied upon the basic resolution of the Gram Panchayat dated 13th February, 1980 to argue that the respondent-workman was engaged only for the purpose of Famine Relief Works which were executed by Gram Panchayat and his work was confined to one or two days in a week on part time basis. He thereafter left the work voluntarily from 1st March, 1985. It has been argued that the reference was made after enormous delay and, therefore, learned Labour Court ought not to have decided the matter on merits. There is no post like Assistant Secretary encadred in the Rajasthan Panchayat Raj Rules, 1996. If has been argued that the learned Labour Court mostly holds its sitting at Bikaner but some time also holds camp Court at Ratangarh. The case was listed at both the places. Some times it was listed at one place, on some other time, at another place. The petitioners could not keep track of the matter. In these circumstances, it went unattended which resulted into ex-parte proceedings against them. It has been submitted that owing to negligence on the part of the officer-in-charge of the Government, the Gram Panchayat which otherwise has very limited resources, should not be saddled with the liability of reinstatement of the respondent-workman with continuity in service. Learned Dy. Government Advocate further argued that existence of the post of Assistant Secretary was very much in doubt and was not even proved by the workman before the Labour Court, direction of reinstatement ought not have been issued even if the matter was being proceeded ex-parte against the management and the Court could at best award compensation in lieu thereof. He argued that the workman failed to prove that he worked for 240 days during calendar year immediately preceding the date of his alleged retrenchment and his entire case has been accepted and taken as proved by learned Labour Court just because the management failed to lead any evidence. He, therefore, prayed that writ petition be allowed and impugned award passed by learned Labour Court be set aside.
6. On the other hand Shri R.S. Saluja, learned Counsel for the respondent-workman submitted that the management having not availed of the opportunity to adduce evidence before learned Labour Court cannot be now permitted to assert at this stage that there was no post of Assistant Secretary in the Gram Panchayat. He argued that the post of Assistant Secretary Was very much there and respondent-workman was engaged for maintaining the records of the Famine Relief Works. He has relied upon the judgment of this Court in Om Prakash Sharma and Ors. v. State of Rajasthan and Anr. 1997 (1) WLC (Raj.) 688 wherein the Scheme proposed by the Government for absorption of several Assistant Secretaries in various Gram Panchhyats was approved with modification and they were accordingly directed to bo absorbed. Shri R.S. Saluja argued that the management having failed to produce any evidence before the Labour Court cannot now be allowed to take advantage of their own lapses. He in this connection relied upon the judgment of Hon'ble Supreme Court in Ashok Kapil v. Sana Ullah (dead) and Ors. : 1996 (6) SCC 342.
7. Mr. R.S. Saluja further argued that the relief of lump sum payment in lieu of reinstatement could be justified only in a case where the employer has lost trust and confidence in the employee on account of some misconduct. He in this connection relied upon the judgment of the Hon'ble Supreme Court in Pyare jan and Anr. v. Karnataka Electricity Board and Anr. 2003 SCC (L&S;) 776. Mr. R.S. Saluja argued that the award passed by learned Labour Court does not suffer from any error apparent on the face of the record so as to warrant interference by this Court in its supervisory writ jurisdiction under Article 226 of the Constitution of India. In order to buttress his argument, he relied upon the judgment of Hon'ble Supreme Court in Sarpanch Lonand Gram Panchayat v. Ramgiri Gosavi and Anr. : 1967(15) FLR 466 (SC). He, therefore, argued that the writ petition deserves to be dismissed.
8. I have given my thoughtful consideration to the arguments advanced by the learned Counsel for the parties and perused the record.
9. Learned Labour Court has concluded that the workman was engaged with the Gram Panchayat Gulpura on the post of Assistant Secretary and that he had completed 240 days in their services during twelve calendar months' immediately proceeding date of his alleged retrenchment. Provisions of Section 25-F of the Act were, therefore, held to have been violated, whereas provisions of Section 25-G were not found violated.
10. Curiously enough, the learned Labour Court also concluded that the management did not deliberately produce any evidence and contest the matter. It held that once when their advocate had appeared before the Court, non-production of evidence only indicated that they were sympathetic with the workman. If it was not so, there was no question why they did not produce evidence having suggested in the cross-examination the workman that the post of Assistant Secretary was abolished. This, according to the learned Labour Court, was a sign which indicated deliberate negligence on the part of the management. While recording a finding to this effect, the learned Labour Court observed that whatever may be the case, there was no reason for the Court to hold that the post of Assistant Secretary was abolished and, therefore, the only direction that could be given in the circumstances was reinstatement of the respondent-workman on the said post.
11. Facts would speak that the management was grossly negligent in conducting the case before the learned Labour Court and, therefore, the findings recorded by the learned Labour Court to that extent were fully justified and no fault can be found with those findings. What is however to be seen is whether any interference with the direction of reinstatement of the workman in the facts of the present case is legally justified and if so, whether interference in such direction by this Court would tantamount to allowing the management to take advantage of its own lapses; Argument that has been raised on behalf of the workman before this Court is based on Maxim 'Nullus commodum capere potest de injuria sua propria' (no man can take advantage of his own wrong) which Maxim is based on well founded principles of equity. Law Courts on the basis of this legal maxim have been holding that a party cannot be permitted to take assistance of the Court of law for enjoying the fruits of his own wrong. However, the argument advanced by the learned Counsel for the respondent in the facts of this case does not deserve acceptance because applicability of this principle of equity based on aforesaid legal maxim would always depend on facts of a given case. Now, present one is case where the management did not produce any evidence to the effect that: (i) that the appointment of the petitioner was made in Famine Relief Works and that such Famine Relief Works were exempt from the purview of Industrial Disputes Act, 1947, (ii) that the appointment of the respondent-workman was made on part time basis on a monthly salary of Rs. 75, (iii) that there was no post of Assistant Secretary or even if it was there, the same was abolished later, and (iv) that the appointment of the respondent-workman was not made by any acceptable mode of recruitment. But peculiarity about this case is that in spite of failure of the management to prove all these facts by leading evidence, learned Labour Court nonetheless recorded a categorical finding to the effect that the management did not deliberately defend the case and did not adduce evidence and further that when their representatives had appeared before the Court for contesting the matter and did not produce the evidence, this clearly indicated that the management was sympathetic with the workman. Learned Labour Court further observed that having given a suggestion in the cross-objection to the workman that the post of Assistant Secretary was abolished, there was no reason why the management did not adduce any evidence before the Court in this respect. This clearly indicated deliberate negligence in defending the case before the Court.
12. What are then the limitations of the Court in a case like present one when it is satisfied that this was a case of collusion where the evidence in defence was not being adduced deliberately and parties in a covert manner want their action to be sanctified by decree of the Court. Although it is a fact that in adversarial litigation like present one, failure of one party should normally be success of the other. But if the Court is satisfied about deliberate non-production of evidence, is it imperative for it to pass a decree solely on account failure of defendant to adduce evidence? Should it not require the plaintiff/ claimant to prove his case independent of the failure of the defendant/ non-claimant to produce such evidence? Question of looking at the evidence of the management would have arisen only if the workman had discharged the initial burden of proving existence of any such sanctioned post in the establishment of Gram Panchayat, his appointment on such post and that he had completed 240 days in a calendar year immediately preceding the date of his alleged retrenchment.
13. It may in this connection usually refer to the observations of the Hon'ble Supreme Court in Batala Co-operative Sugar Mills ltd. v. Sowaran Singh : 2005 (107) FLR 815 (SC) wherein also the workman was engaged on casual basis on daily wages for specific work and for specific period. Their Lordships of the Hon'ble Supreme Court in that case found that the evidence proved that the workman was engaged for specific period and specific work but the fact that he worked for 240 days was required to be proved by the workman and, therefore, the burden of proof would not lie on the employer and, therefore, the direction for reinstatement was set aside. Again in a recently delivered judgment in Chief Engineer, Sanjeet Sagar Dam v. Sham Lal : 2006 (110) FLR 552 (SC) while reiterating such law with reference to more than twelve earlier Supreme Court judgments on the point, their Lordships held that burden of proof to prove that the workman had worked for more than 240 days lies on the workman himself and not on the management.
14. A Court of law, besides being a body adjudicating disputes between the parties, is also custodian of law. It cannot be completely oblivious of to consequences of its judgment especially in cases where such consequences are to be suffered by a public body like Gram Panchayat in the present case. Although learned Labour Court while refusing to award back wages to the workman has recognized the fact that the Gram Panchayat with its limited resources would not be in a position to pay off all the arrears and consequential benefits to the workman, yet at the same time a direction has been issued to reinstate the respondent-workman with continuity in service on 1st March, 1985 and pay monetary benefits from the date of award even though learned Labour Court was satisfied that those in charge of management were deliberately not adducing evidence. In the facts of the present case, I am not persuaded to accept the arguments raised by the learned Counsel for the respondent that making interference with the award of the learned Labour Court would tantamount to allowing the management to take advantage of its own lapses. Now the question in the present case, when the evidence was not led before the Labour Court was, whether the post of Assistant Secretary was in existence with the Gram Panchayat, Gulpura and further whether it had not been abolished at a later point of time but before passing the award and whether the petitioner had completed 240 days in a calendar year preceding the date of his alleged retrenchment. None of these facts were proved by the workman by any evidence whatsoever except his own affidavit. This should be a reasonable ground to refuse reinstatement even if we ignore what is being now asserted by the management that there was no post with the Gram Panchayat and that petitioner was not appointed on any such post and that he was appointed only on a fixed monthly basis for Rs. 75 on part time basis.
15. The judgment of the Hon'ble Supreme Court in case of Pyare Jan cited by learned Counsel for the proposition that payment of lump sum amount in lieu of reinstatement could be awarded only in a case where employer has lost confidence in any employee on account of misconduct wherein the Hon'ble Supreme Court in view of the young age of the workman directed his reinstatement in lieu of payment of lump sum compensation but that judgment turned out on its own facts. The Constitution Bench of the Supreme Court in Punjab Land Development Corporation v. Presiding Officer, Labour Court and Ors. 1990 (60) FLR 73 (SC) while upholding reinstatement of the workman in some other cases, directed payment of lump sum compensation to two workmen in full and final settlement of their claims including that of their reinstatement and that was perhaps one of the earlier judgments wherein the Hon'ble Supreme Court made a departure from the normal rule of the reinstatement and awarded lump sum compensation in lieu thereof. In later judgments however the Supreme Court has laid down guidelines for awarding Jump sum compensation in lieu of reinstatement. There are certain judgments from this Court as well on the same subject-matter which provides for award of lump sum compensation in lieu of reinstatement in appropriate cases. Their Lordships of Hon'ble the Supreme Court on this aspect have evolved very many guiding principles in number of judgments. Some of these judgments have been delivered in Rolasthan Rohan v. Central Industrial Tribunal 1995 SCC (L&S;) 142 Gujarat State Road Transport Corporation v. Mulluamr 1995 SCC (L&S;) 224, Surjeet Ghosh v. United Commercial Bank : 1995 (70) FLR 817 (SC), Gorabha Corporating Marketing v. Presiding Officer LLR 1996 (1) 644, Ratan Singh v. Union of India 1998 SCC (L&S;) 170, Dharmveer Singh v. State of Rajasthan 1999 WLC (Raj.) 301 (DB), Hindustan Tin Works Pvt. Ltd. v. Employees of Hindustan Tin Works Pvt. Ltd. : 1978 (37) FLR 240 (SC), Chandu Lal v. The Management of M/s. PAN American World Airways : 1985 (51) FLR 142 (SC), Sain Steel Products v. Naipal Singh and Ors. : 2001 (89) FLR 358 (SC), O.P. Bhandari v. Indian Turism Development Corporation Ltd. and Ors. 1986 (53) FLR 752 (SC), Arjun Singh and four others v. Labour Court, Jodhpur and Ors. 2004 (103) FLR 693 (Raj.), U.P. State Road Transport Corporation v. Man Singh : 2006 (111) FLR 323 (SC), and Nagar Mahapalika v. State of U.P. and Ors. : 2006 (109) FLR 1092 (SC). These cases have been followed by this Court in number of Division Bench judgments in Resident Engineer Housing Board Kota v. Lokpath and Anr. 2003 (99) FLR 105 (Raj.), in State of Rajasthan v. Rashid Mohammed 2004 (5) WLC (Raj.) 463, in D.B. Civil Writ Petition No. 406/2000 reported in Arjun Singh and Ors. v. Labour Court, Jodhpur 2004 (103) FLR 693 (Raj.), and in Ram Niwas v. Mining Engineer D.B. Civil Special Appeal (Writ) No. 770/2003 decided on 24th April, 2003.
16. Principles of law which can be culled out from the aforesaid judgments are that relief of lump sum compensation in lieu of reinstatement may be awarded (i) when the nature of appointment of the workman is only casual and temporary and such appointment was not made by following due process of law; (ii) when there had been delay in making of reference; (iii) when a long time has otherwise elapsed from the date of alleged retrenchment till passing of the award and subsequently till deciding the matter by the, Court; (iv) when length of service of the workman has been much; (v) when the workman was engaged in a temporary project or scheme which has come to end; (vi) when the management does not have any post or means to accommodate and continue the workman in there services. Normal rule of reinstatement can be departed in favour of the payment of lump sum compensation in any appropriate case where the matter falls in any of these broad categories. Although one of the options in the present case could be to remand the matter to learned Labour Court with the direction to decide it afresh after providing opportunity to the management to adduce evidence but keeping in view the fact that the workman did not produce any other evidence except his own affidavit to prove the alleged retrenchment which was made way back on 1st March, 1985 and more than two decades have gone by since then now, I do not consider it appropriate to remand the matter. In the peculiar facts of the case, however, ends of justice would be met by directing the petitioners to pay to the respondent a lump sum compensation of Rs. 50,000/- in lieu of reinstatement. The award passed by the learned Labour Court is accordingly modified.
17. In the result the writ petition is partly allowed and the award passed by the learned Labour Court is accordingly modified. There shall be however no order as to costs.