Central Arid Zone Research Institute Through the Director Vs. Arid Zone Employees, Union Cazri and anr. - Court Judgment

Excerpt:
(a) limitation act, 1963 - section 14--rajasthan high court ordinance, 1949--section 18--special appeal--limitation--piling of review against the impugned order would not stop running the limitation--however, appeal is again barred by time even after giving credit for the period spent in review--special appeal is barred by limitation.;(b) industrial disputes act, 1947 - schedule v item 10--unfair labour practice--employer employing persons as casual labour for long periods with a view to denying them the status of permanent employee--only ground raised by employer that award was not made by appropriate government--direction of tribunal to regularise services of the employees who had completed two years service is not invalid--no interference is called for.;writ petition dismissed - labour & servicesappointment: [shiv kumar sharma, ashok parihar & k.s. rathore, jj] merit list rajasthan secondary education act (42 of 1957), section 28 & rajasthan board of secondary education rules, rule 20 - held, improved marks obtained by candidate after re-appearing in examination can be considered for drawing the merit list of candidate for appointment to post of teacher. circular issued by the director of primary & secondary education ousting such candidate from consideration in merit list is illegal and without jurisdiction. - 2807/99 against the order under appeal and having failed in that review application, decided on 9.10.1998, present appeal has been filed. it is well settled that period during which petition for review is persued is not excluded for computation of the period of the limitation under section 14 of the limitation act. 5. moreover on merit also we find that because there was no substantial failure of justice in the award made by the learned labour court cum industrial tribunal dt. 407, that where there is no substantial failure of justice, it is not incumbent, for the high court or supreme court to grant relief in exercise of its discretion under article 226 or 136 as the case may be, even there may be some force in contention about jurisdiction of the tribunal. there is no substantial failure of justice in the present case.rajesh balia, j.1. this appeal is again the judgment of learned single judge dt. 13.5.1997. it is barred by 1006 days. the only ground given in the application for condonation of delay is that in the first instance the appellants have preferred a review petition no. 2807/99 against the order under appeal and having failed in that review application, decided on 9.10.1998, present appeal has been filed.2. however we find that this explanation is not reasonable, firstly because filing of an application for review does not stop running of the period of limitation for filing an appeal. therefore not filing the appeal on the basis of pursuing a review application within limitation, without something more cannot, be considered to be a sufficient cause for condoning the delay. it is well settled that period during which petition for review is persued is not excluded for computation of the period of the limitation under section 14 of the limitation act.3. moreover we find that appellants were not diligent even in pursuing the review application inasmuch as the review application itself was barred by 47 days. it appears that recourse to review petition has been taken only to get over the difficulty of having not filed the appeal in time.4. even after giving credit for the period during which appellants have pursuaded remedy of review, the appeal is hopelessly delayed, no explanation whatsoever has been furnished for filing appeal after such inordinate delay. the review petition was dismissed on 9.10.1998. the appeal has been filed only on 14.3.2000, that is to say almost after one and half year after the date of rejection of the review application.5. moreover on merit also we find that because there was no substantial failure of justice in the award made by the learned labour court cum industrial tribunal dt. 29th april, 1989 it would not have been appropriate to invoke the extraordinary jurisdiction of this court solely on the basis of finding same force in contention about lack of jurisdiction of the labour court cum industrial tribunal jodhpur, on some defect in making the reference by the state government. the only defect pointed out was about appropriate government to make reference otherwise neither it is the case that no industrial dispute existed nor that the court lacked jurisdiction to adjudicate inherently, if the dispute would have been made by appropriate government. the labour court which gave its award in 1989 finding that large number of workmen who are being continuously in service since 1983 continued as casuals and daily rated employees had directed to pay minimum pay-scale applicable to them with effect from completion of two years of continuous services. this direction has been given only in respect of such workmen who have completed two years services as on the date of making of reference in 1986 and would govern employees who have been employed between 1965 to 1983 and are still working with the present appellant as casual workmen. the further direction by the industrial tribunal had been that they may be regularised after completion of two years services in accordance with a scheme framed in that behalf by the present appellant and if necessary by creating the posts for the regular absorption inasmuch as such a long continuation on the post suggests work of permanent nature is available with the appellant on which the workmen are being employed continuously as casual workers. this direction is in consonance with the duty of industrial tribunal to adjudicate upon the unfair labour practice employed by the employer and grant reliefs against such unfair labour practice which inter alia include the pracitce of employing workmen as casual or temporary and be continued them as such for long period with the object of denying them status of permanent workmen to be considered as unfair labour pracitce in term of item 10 in schedule v appended to the industrial disputes act, 1947. the very fact that tribunal's direction reaches the roots of unfair labour practice of employing persons continuously as casual since 1965 and thereafter upto workmen employed in 1983 makes us think that tribunal's award has furthered substantial justice and was just and fair and did not require interference in exercise of extraordinary jurisdiction to perpetuate injustice through continued unfair labour practice. moreover the tribunal has not itself directed regularisation of the services of the workmen or conferred permanent status but has directed employer to frame scheme for those employees who on the date of making reference has worked for two years or more for conferring upon them status of permanent workmen and regularise their services with effect from the date they are made permanent under the scheme on their absorption on the different posts is made. they have been directed to pay at the minimum of regular pay-scale with benefit of paid holidays in accordance with the rules since 1989 and that the period for total working may be considered for retiral benefit. this direction is also in accord with widely accepted principle that on working for long duration the workmen ought not atleast to be denied benefit of minimum of pay-scale applicable to employees discharging same or similar duties.6. we are reminded of the principle which supreme court enunciated in a.m. allison v. b.l. sen : (1957)illj472sc and reaffirmed and reiterated in balvantrai chimanlal trivedi v. m.n. nagrashna and ors. (1960) s.c. 407, that where there is no substantial failure of justice, it is not incumbent, for the high court or supreme court to grant relief in exercise of its discretion under article 226 or 136 as the case may be, even there may be some force in contention about jurisdiction of the tribunal. there is no substantial failure of justice in the present case. the impugned order of the tribunal is just and fair and did not call for interference in exercise of extraordinary jurisdiction of this court.7. accordingly this appeal fails and is hereby dismissed with no order as to costs.