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Judgment
KIRTI SINGH, J. (ORAL)
CM No.4809 of 2021
This application has been filed by the petitioner under Section 151 CPC, praying for placing on record Annexure P-10 and Annexure P-11 in the present petition.
For the reasons stated therein, the application is allowed and Annexure P-10 and Annexure P-11 are taken on record, subject to all just exceptions.
MAIN CASE
By way of the present writ petition filed under Articles 226/227 of the Constitution of India, the petitioner impugns the Award dated 20.01.2015 (Annexure P-1) passed by the learned Presiding Officer, Industrial Tribunal, Bathinda, in Reference No. 28/2010, whereby the reference stood answered against the petitioner and it was held that he is not entitled to any relief.
The pleaded facts of the case are that the petitioner was engaged by the respondents as a Pump Operator/Driver with effect from 04.04.2007 and continued to serve on that post till 02.09.2009, during which period he claims to have completed more than 240 days of continuous service. It is the case of the petitioner that his services were terminated by the respondents with effect from 02.09.2009 without any notice, charge-sheet, inquiry or compensation, in violation of the provisions of the Industrial Disputes Act, 1947 (for short ‘the Act of 1947’), and that juniors to him were retained in service, and fresh hands were also engaged in his place after his termination. Aggrieved, the petitioner raised an industrial dispute, wherein the learned Tribunal framed the following issues for adjudication:-
“1.Whether there exists relationship of employee and employer between the parties and workman is entitled to relief as claimed? OPW
2.If issue No.1 is proved, whether the termination of services of workman is legal, valid and justified? OPM
3.Whether the workman has no locus standi and cause of action to file this claim? OPM
4.Relief.”
Upon appreciation of the pleaadings made and the evidence on record, the learned Tribunal returned a finding that the workman had not worked for the respondents for a period of 240 days or more in the preceding calendar year prior to his alleged termination. Accordingly, the matter was decided against the workman and the reference was declined. Aggrieved thereby, the petitioner has approached this Court by way of the present writ petition.
Learned counsel for the petitioner submits, firstly, that the delay in approaching this Court deserves to be condoned. It is averred that the petitioner came to know of the decision of his claim only in December, 2017, and that the certified copy of the impugned Award was applied for, which was supplied to him only in February, 2018. Due to the subsequent illness and thereafter the unfortunate death of his wife, followed by the pandemic, the filing of the present petiton got delayed. On merits, it is contended that the learned Tribunal had erred in recording the finding that the petitioner had not completed more than 240 days of service in the calendar year preceding his termination. It is further submitted that the learned Tribunal failed to take into consideration that juniors to the petitioner had since been appointed and their services regularised, entitling the petitioner to reinstatement on that ground as well. Parity is sought with the case of a co-worker, stated to be a similarly situated employee of the same department, whose writ petition being CWP No. 23449 of 2015 was allowed by this Court vide order dated 06.09.2017 (Annexure P-8), enhancing his compensation to Rs.4 lakhs. It is accordingly prayed that the impugned Award, being illegal and arbitrary, be set aside.
Per contra, learned State counsel opposes the petition, at the threshold, on the ground of delay, submitting that the writ petition, filed nearly six years after the passing of the impugned Award, is barred by laches, and that the explanation furnished by the petitioner is not ‘sufficient cause’, so as to warrant its condoning. On merits, it is submitted that the findings recorded by the learned Tribunal are based on a due appreciation of the evidence on record, and do not call for interference.
I have heard learned counsel for the parties and perused the relevant material on record.
Before proceeding to the merits, it is observed that the impugned Award was passed on 20.01.2015, whereas the present writ petition was filed only on 27.01.2021. The explanation furnished by the petitioner does not account for the period between the passing of the Award and his claimed knowledge thereof in December, 2017, which remains unexplained on record. Such unexplained delay, notwithstanding the circumstances pleaded for the subsequent period, defeats the equity ordinarily required of a petitioner invoking the extraordinary writ jurisdiction of this Court, and would by itself justify dismissal of the present petition.
Be that as it may, even on merits, the writ petition does not warrant a different consideration.
Before proceeding further, a gainful reference can be made to the proposition of law as discussed by the Hon’ble Supreme Court in Civil Appeal No.6511 of 2005 titled as Surendranagar District Panchayat Vs. Dahyabhai Amarsinh, relevant paras whereof read thus:-
"8.As per Section 25F, no workman who is in continuous service for not less than one year under an employer shall be retrenched by that employer unless conditions laid therein are fulfilled. The retrenchment is defined in Clause (oo) of Section 2 of the Industrial Disputes Act 14 of 1947 (herei-nafter referred to as Act). Under the definition termination of the service of a workman by the employer by any reason whatsoever, otherwise than, as a punishment, by way of disciplinary action, would constitute retrench-ment except in cases accepted in the Section itself, they are :- i) a volunta-ry retirement of a workman; ii) retirement of a workman on reaching the age of superannuation; iii) termination of the service of a workman as a result of nonrenewal of the contract of employment; or iv) termination of the service on the ground of continued ill-health of the workman. Unless these reasons are existed and proved, termination by the employer of the service of a workman for any reason, would constitute retrenchment. Therefore, if the employer is to retrench the workmen employed in his in-dustry who is in continuous service has to follow the provisions of Section 25F of the Act. To attract provisions of Section 25F, the workman claiming protection under it, has to prove that there exists relationship of employer and employee; that he is a workman within the meaning of Section 2(s) of the Act; the establishment in which he is employed is an industry within the meaning of the Act and he must have put in not less than one year of continuous service as defined by Section 25B under the employer. These conditions are cumulative. If any of these conditions are missing the provi-sions of Section 25F will not attract. To get relief from the court the workman has to establish that he has right to continue in service and that his service has been terminated without complying with the provisions of Section 25F of the Act. The Section postulates three conditions to be ful-filled by an employer for getting a valid retrenchment, namely:-
i)One month's clear notice in writing indicating the reasons for retrench-ment or that the workman has been paid wages for the period of notice in lieu of such notice; ii) payment of retrenchment compensation which shall be equivalent to 15 days average pay for every completed year of conti-nuous service or any part thereof, in excess of six months; iii) a notice to the appropriate Government in the prescribed manner.
9.To attract the provisions of Section 25F, one of the conditions required is that the workman is employed in any industry for a continuous period which would not be not less than one year. Section 25B of the Act defines continuous service for the purposes of Chapter V-A "Lay-off and Retren-chment". The purport of this Section is that if a workman has put in an un-interrupted service of the establishment, including the service which may be interrupted on account of sickness, authorised leave, an accident, a strike which is not illegal, a lock--out or cessation of work, that is not due to any fault on the part of the workman, shall be said to be a continuous service, for that period. Thus the workman shall be said to be in conti-nuous service for one year i.e., 12 months irrespective of the number of days he has actually worked with interrupted service, permissible under Section 25B. However, the workmen must have been in service during the period, i.e., not only on the date when he actually worked but also on the days he could not work under the circumstances set out in sub-section (1). The workman must be in the employment of the employer concerned on the days he has actually worked but also on the days on which he has not worked. The import of sub-section (1) of Section 25B is that the workman should be in the employment of the employer for the continuous, uninter-rupted period for one year except the period the absence is permissible as mentioned hereinabove. Subsection (2) of Section 25B introduces the fic-tion to the effect that even if the workman is not in continuous service with-in the meaning of Clause (i) of Section 25B for the period of one year or six months he shall be deemed to be in continuous service for that period under an employer if he has actually worked for the days specified in clauses (a) and (b) of sub-section (2). By the legal fiction of sub-section 2(a) (i), the workman shall be deemed to be in continuous service for one year if he is employed underground in a mine for 190 days or 240 days in any other case. Provisions of the Section postulate that if the workman has put in at least 240 days with his employer, immediately prior to the date of retrenchment, he shall be deemed to have served with the employer for a period of one year to get the benefit of Section 25F.
16.In Mohan Lal v. Management of M/s. Bharat Electronics Ltd., (1981) 3 SCC 225, it is said by this Court that before a workman can claim re-trenchment not being in consonance of Section 25F of the Industrial Dis-putes Act, he has to show that he has been in continuous service of not less than one year with the employer who had retrenched him from service.
17.In Range Forest Officer v. S.T. Hadimani, (2002) 3 SCC 25 - (At Page 26, Para 3), this Court held that "In our opinion the Tribunal was not right in placing the onus on the management without first determining on the basis of cogent evidence that the respondent had worked for more than 240 days in the year preceding his termination. It was the case of the claimant that he had so worked but this claim was denied by the appellant. It was then for the claimant to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination. Filing of an af-fidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any Court or tribunal to come to the conclusion that a workman had, in fact, worked for 240 days in a year. No proof of SWARNJIT SINGH receipt of salary or wages for 240 days or order or record of appointment or engagement for this period was produced by the workman. On this ground alone, the award is liable to be set aside."
19.In the light of the aforesaid, it was necessary for the workman to pro-duce the relevant material to prove that he has actually worked with the employer for not less than 240 days during the period twelve calendar months preceding the date of termination. What we find is that apart from the oral evidence the workman has not produced any evidence to prove the fact that he has worked for 240 days. No proof of receipt of salary or wag-es or any record or order in that regard was produced; no coworker was examined; muster roll produced by the employer has not been contra-dicted. It is improbable that workman who claimed to have worked with the appellant for such a long period would not possess any documentary evidence to prove nature of his engagement and the period of work he had undertaken with his employer. Therefore, we are of the opinion that the workman has failed to discharge his burden that he was in employment for 240 days during the preceding 12 months of the date of termination of his service. The Courts below have wrongly drawn an adverse inference for non production of the record of the workman for ten years. The scope of enquiry before the Labour Court was confined to only 12 months preced-ing the date of termination to decide the question of continuation of service for the purpose of Section 25F of the Industrial Disputes Act. The work-man has never contended that he was regularly employed in the Panchayat for one year to claim the uninterrupted period of service as required under Section 25B(1) of the Act. In the fact and situation and in the light of the law on the subject, we find that the workman-respondent is not entitled for the protection or compliance of Section 25F of the Act before his service was terminated by the employer. As regards noncompliance of Sections 25G and 25H suffice is to say that witness Vinod Mishra examined by the appellant has stated that no seniority list was maintained by the depart-ment of daily wagers. In the absence of regular employment of the work-man, the appellant was not expected to maintain seniority list of the em-ployees engaged on daily wages and in the absence of any proof by the respondent regarding existence of the seniority list and his so called se-niority no relief could be given to him for non-compliance of provisions of the Act. The Courts could have drawn adverse inference against the appel-lant only when seniority list was proved to be in existence and then not produced before the Court. In order to entitle the Court to draw inference unfavourable to the party, the Court must be satisfied that evidence is in existence and could have been proved."
Reverting to the case in hand, the controversy before the learned Tribunal primarily centred on a single issue, namely, whether there existed an employer employee relation between the petitoiner and respondent-management, for unless the petitioner established the same, the question of examining compliance with the mandatory requirements of Section 25-F of the Act of 1947, or of any violation of Sections 25-G or 25-H thereof, would not arise.
It can be seen from the case record that upon appreciation of the pleadings made and the evidence on record, the learned Tribunal concluded that the documents produced by the petitioner were insufficient to establish the existence of an employer employee relationship between him and the respondent-management. Neither an appointment letter nor a termination letter was ever issued to him, a fact admitted by the petitioner himself in his cross-examination, and there was no attendance record or record of payment of wages on the file to substantiate his claim. Thus, the petitioner having failed to discharge the preliminary burden resting upon him through cogent documentary evidence, the finding of the learned Tribunal cannot be faulted.
In the absence of that foundational fact having been established, no occasion arose for the learned Tribunal, nor does any occasion arise before this Court, to separately examine the plea of violation of the provisions of Section 25-F and 25-H of the Act.
Insofar as parity is sought to be drawn with a co-worker, no material has been placed on record by the petitioner to demonstrate that the said workman stood on an identical footing as the petitioner. In the absence of any such foundation, the bare fact that another employee of the same department was granted relief in a separate proceeding cannot entitle the petitioner to identical relief.
It is trite that while exercising jurisdiction under Articles 226 and 227 of the Constitution of India, this Court does not sit as a Court of appeal over the findings of fact recorded by the Industrial Tribunal. The scope of judicial review is confined to examining whether the impugned Award suffers from perversity, patent illegality, jurisdictional error or is based on no evidence. Re-appreciation of evidence lies outside the ambit of the supervisory jurisdiction of this Court. Learned counsel for the petitioner has not been able to demonstrate that the findings recorded by the learned Tribunal, which are purely findings of fact, suffer from any such infirmity. The impugned Award reflects a due and proper appreciation of the pleadings, the evidence adduced by the parties and the settled legal principles governing the controversy. No ground, therefore, is made out to warrant interference.
Consequently, finding no merit in the present writ petition, the same is dismissed.
Pending miscellaneous application(s), if any, shall also stand disposed of.