Chanderpati vs Presiding Officer, Industrial Tribunal-cum-Labour Court and Others

Rameshwar Singh Malik, J.—Feeling aggrieved against the award dated 17.11.2009 (Annexure P-4) passed by learned Industrial Tribunal-cum-Labour Court, Rohtak, thereby denying the relief of reinstatement in service and only awarding Rs. 35,000/- as compensation, for 20 years of service, the petitioner has approached this court by way of instant writ petition, under Articles 226/227 of the Constitution of India, seeking a writ in the nature of Certiorari for quashing the impugned award. A writ in the nature of mandamus is also sought directing the respondents to reinstate the petitioner with continuity of service, back wages and other consequential benefits. The facts of the case, which are hardly in dispute are that petitioner was engaged as Baildar-cum-Mali in the year 1981. She continued to work upto 31.5.2001. Her services were terminated with effect from 1.6.2001 without any notice or notice pay, as well as retrenchment compensation. Petitioner submitted her demand notice dated 8.7.2002 (Annexure P-1). Industrial dispute raised by the petitioner was referred by the competent authority to the Labour Court. Petitioner filed her claim statement vide Annexure P-3 dated 10.11.2003. However, despite giving several opportunities for filing its written statement, including the last one on payment of costs, the respondent-management did not file its written statement nor paid the costs. Defence of the respondent-management was struck off by the learned Labour Court, vide its order dated 15.6.2005. Petitioner appeared as WW-1 and also examined WW-2 Randhir Singh, Forester, who was directed to produce the summoned record. However, he stated that he could not bring the record like muster rolls, payment vouchers and payment bills etc. for the period from 1981 to 30.5.2001, as they were not available. The learned Labour Court rightly drawn adverse inference against the respondent-management because, despite summoning the official witnesses at the relevant time, nothing was produced by the respondents. Claim put forth by the petitioner that she continuously served the respondents from the year 1981 to 31.5.2001 and was retrenched without any notice or notice pay in lieu thereof as well as the retrenchment compensation, remained uncontroverted. Similarly, the allegations of the petitioner that respondent-management violated the mandatory provisions of Sections 25-F, 25-G, 25-H and 25-N of the Industrial Disputes Act, 1947 (''the Act'' for short) have also gone unrebutted. However, the Labour Court denied the reinstatement observing that the appointment of the petitioner was not in consonance with the statutory rules and in violation of Articles 14 and 16 of the Constitution of India. Petitioner was granted the compensation of Rs. 35,000/- for 20 years service rendered by her. Hence, this writ petition.

Notice of motion was issued and in compliance thereof, written statement was filed on behalf of respondents No. 2 to 4.

Learned counsel for the petitioner submits that once the pleadings of the petitioner have gone undisputed and her evidence remained uncontroverted because the defence of the respondent-management was struck off, for neither paying the costs nor filing the written statement, violation of the mandatory provisions of law contained in Sections 25-F, 25-G, 25-H and 25-N of the Act had been duly established. In such a situation, petitioner was entitled for reinstatement in service with full back wages. He also relies on the judgments of the Hon''ble Supreme Court in Ramesh Kumar Vs. State of Haryana, Harjinder Singh v. Punjab State Warehousing Corporation, 2010(1) S.C.T. 725 : 2010(1) (R.A.J.) 551: 2010(2) RSJ 113 and Devinder Singh Vs. Municipal Council, Sanaur, . He finally submits that the impugned award was palpably illegal and the same be set aside by allowing the present writ petition.

Per contra, learned counsel for the State submits that even if the provisions of Section 25-F of the Act were found to be violated by the respondent-management, the petitioner was not entitled for reinstatement. He further submits that in view of the provisions contained in Section 11-A of the Act, the Labour Court could have granted only the compensation, which has been rightly granted in the present case. To substantiate his arguments, he places reliance on the judgement of the Hon''ble Supreme Court in Bharat Sanchar Nigam Ltd. Vs. Man Singh, . He prays for dismissal of the writ petition.

Having heard the learned counsel for the parties at considerable length, after careful perusal of the record of the case and giving thoughtful consideration to the rival contentions raised, this court is of the considered opinion that the present writ petition deserves to be allowed. To say so, reasons are more than one, which are being recorded hereinafter.

It is a matter of record that pleadings of the petitioner have gone undisputed. Since, despite granting several. opportunities, including the last opportunity on payment of costs, the respondent-management failed to file the written statement, as well as to pay the costs, the learned Labour Court has struck off the defence of the respondent-management, vide order dated 15.6.2005. Further, the evidence led by the petitioner has also gone unrebutted.

Specifically pleaded case of the petitioner was that she was engaged as Baildar-cum-Mali in the year 1981 and she worked continuously upto 31.5.2001. It was further alleged that many of her juniors including Sh. Lillu S/o. Sh. Bhana Ram and Sh. Gulia S/o. Sh. Norang were retained at the time of her illegal retrenchment. Thereafter, many fresh hands were engaged ignoring the preferential claim of the petitioner. It is further undisputed on record that no notice or notice pay was given to the petitioner at the time of retrenchment. No retrenchment compensation was paid to the petitioner at the time of her retrenchment. In this view of the matter, this court feels no hesitation to conclude that petitioner has duly proved her case and the glaring violation of the mandatory provisions of Section 25-F at the hands of the respondent-management, stands established.

It had never been the case of the respondents that services of the petitioner were terminated because of non availability of work. The only argument raised on behalf of the respondent-management was that inspite of the violation of Section 25-F of the Act, petitioner was not entitled for reinstatement in view of the provisions of Section 11-A of the Act and she was rightly granted compensation of Rs. 35,000/- by the learned Labour Court, while passing the impugned award. This argument is only to be noted to be rejected. Provisions of Section 11-A of the Act are not at all attracted in the present case because neither it is a case of discharge nor dismissal. Neither any misconduct was alleged against the petitioner nor any domestic enquiry was held in the present case. Once the present one was not a case of dismissal by way of punishment, there was no scope of invoking Section 11-A of the Act.

So far as the judgement in Man Singh''s case (supra) relied upon by the learned counsel for the State is concerned, the same is not applicable in the present case, being clearly distinguishable on facts. The services of workmen in the cited case were terminated in the year 1986 due to non availability of work. They worked as casual labourers on daily wages only during the year 1984-85. They raised the industrial dispute after five years in the year 1991. Despite the facts noted above, the Hon''ble Supreme Court directed Bharat Sanchar Nigam Ltd., to pay Rs. 2.00 lacs to each of the workman, towards full and final settlement of their claim. The present case is based on entirely different set of facts, as noticed herein above.

It is also the settled principal of law that peculiar facts of each case are to be seen, examined and appreciated first before applying any codified or judge-made law thereto. Sometimes, difference of one additional fact or circumstance can make the world of difference, as held by the Hon''ble Supreme Court in Padmasundara Rao and Others Vs. State of Tamil Nadu and Others,

The learned labour court proceeded on an erroneous approach, while denying the benefit of reinstatement to the petitioner on the ground of alleged illegal method of appointment. A poor workman cannot be made to suffer for any kind of irregularity or even illegality committed by the management, while choosing the method of appointment and that too, when the workman had rendered the services for 20 long years. Further, the method of appointment is not even a relevant factor for deciding, whether the petitioner was a workman within the meaning of Section 2(s) of the Act.

The view taken by this court also finds support from the judgments of the Hon''ble Supreme Court in Devinder Singh''s case (supra), Harjinder Singh''s case (supra), as well as Ramesh Kumar''s case (supra). The Hon''ble Supreme Court in para 13, 14, 20 and 21 of Devinder Singh''s case (supra) observed as under:--

The source of employment, the method of recruitment, the terms and conditions of employment/contract of service, the quantum of wages/pay and the mode of payment are not at all relevant for deciding whether or not a person is a workman within the meaning of Section 2(s) of the Act.

It is apposite to observe that the definition of workman also does not make any distinction between full time and part time employee or a person appointed on contract basis. There is nothing in the plain language of Section 2(s) from which it can be interfered that only a person employed on regular basis or a person employed for doing whole time job is a workman and the one employed on temporary, part time or contract basis on fixed wages or as a casual employee or for doing duty for fixed hours is not a workman.

This Court has repeatedly held that the provisions contained in Section 25F(a) and (b) are mandatory and termination of the service of a workman, which amounts to retrenchment within the meaning of Section 2(oo) without giving one month''s notice or pay in lieu thereof and retrenchment compensation is null and void/illegal/inoperative - The State of Bombay and Others Vs. The Hospital Mazdoor Sabha and Others, Bombay Union of Journalists and Others Vs. The State of Bombay and Another, , Santosh Gupta Vs. State Bank of Patiala, , Mohan Lal Vs. Management of Bharat Electronics Ltd., , L. Robert D''souza v. Southern Railway (supra), Surendra Kumar Verma and Others Vs. Central Government Industrial Tribunal-Cum-Labour Court, New Delhi and Another, , Gammon India Limited Vs. Niranjan Dass, Gurmail Singh and Others Vs. State of Punjab and Others, and Pramod Jha and Others Vs. State of Bihar and Others,

In Anoop Sharma v. Executive Engineer, Public Health Division, Haryana (supra), the Court considered the effect of violation of Section 25F, referred to various precedents on the subject and held the termination of service of a workman without complying with the mandatory provisions contained in Section 25-F(a) and (b) should ordinarily result in his reinstatement.

Similarly, the Hon''ble Supreme court in para 13 of the judgement in Ramesh Kumar''s case (supra) observed, as under:--

We are conscious of the fact that an appointment on public post cannot be made in contravention of recruitment rules and constitutional scheme of employment. However, in view of the materials placed before the Labour Court and in this Court, we are satisfied that the said principle would not apply in the case on hand. As rightly pointed out, the appellant has not prayed for regularization but only for reinstatement with continuity of service for which he is legally entitled to. It is to be noted in the case of termination of casual employee what is required to be seen is whether a workman has completed 240 days in the preceding 12 months or not. If sufficient materials are shown that workman has completed 240 days then his service cannot be terminated without giving notice or compensation in lieu of it in terms of Section 25F. The High Court failed to appreciate that in the present case appellant has completed 240 days in the preceding 12 months and no notice or compensation in lieu of it was given to him, in such circumstances his termination was illegal. All the decisions relied on by the High Court are not applicable to the case on hand more particularly, in view of the specific factual finding by the Labour Court.

A combined reading of the above said observations made by the Hon''ble Supreme Court leaves no room for doubt that once the petitioner has established on record that the respondent-management has violated the mandatory provisions of Section 25-F of the Act, she was entitled for reinstatement with continuity of service and back wages. Having said that, it is unhesitatingly held that the termination of services of the petitioner was illegal on the face of it and she was entitled for the relief of reinstatement with continuity of service and back wages.

No other argument was raised.

Under the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this court is of the considered view that the impugned award cannot be sustained and the same is hereby set aside. Petitioner is directed to be reinstated with continuity of service. However, while moulding the relief and because the petitioner has not actually worked with the respondent-management during this period, the ends of justice will be adequately met if the petitioner is awarded 50% back wages from the date of demand notice till the date of payment. Ordered accordingly. Respondent management is directed to complete this exercise within three months, failing which the petitioner shall be entitled for interest @ 9% per annum on the amount of back wages.

Resultantly, with the observations made and directions issued, as aforementioned, the present writ petition stands allowed, however, with no order as to costs.