Labh Singh vs Modi Wire Products and Another

R.L. Anand, J.—Labh Singh has filed the present writ petition under Articles 226/227 of the Constitution of India praying for the issuance of a writ of certiorari, mandamus or any other writ, order or direction for the quashment of the order dated March 17, 1980, vide which the Presiding Officer, Labour Court, Patiala, dismissed the application of the petitioner u/s 33-C(2) of the Industrial Disputes Act.

The case set up by the petitioner is that he was employed by respondent No. 1 as Mistri in the year 1959 at the rate of Rs. 180 per month, as his salary. He continued his services till, June 7, 1976, but on June 8, 1976, his services were terminated by the management without any charge-sheet, show-cause notice or any procedure or inquiry. He served demand notice upon the management. Reconciliation proceedings failed and thereafter the appropriate Government referred the matter for adjudication to the Labour Court u/s 10(1)(c) of the Act as to whether the services of the petitioner were terminated in a legal manner or not ? The Labour Court allowed the claim of the petitioner and held that the petitioner was entitled to gratuity at the rate of 15 days'' wages for each completed year of service and the average salary of the petitioner was assessed at Rs. 400 per month. It was further directed by the Labour Court that this amount would be paid by respondent No. 1 within 30 days from the date of the publication of the award failing which it was ordered that the petitioner would be reinstated in service with the benefit of continuity of service and he would also be entitled to back-wages atthe rate of 50 per cent during the period of his forced unemployment. As per the award dated July 22, 1977, the petitioner was not paid any gratuity amount as ordered by the Labour Court nor was he reinstated in service within the stipulated period in spite of the repeated requests made to the management. Thereafter, the petitioner filed an application u/s 33-C(2) of the Industrial Disputes Act and claimed wages at the rate of Rs. 8 per day with effect from June 8, 1976, to January 19, 1978. This application was dismissed by the Labour Court, Patiala, holding that it was not proved on the record that the petitioner was entitled to any gratuity and, moreover, as per findings of the Labour Court the petitioner failed to prove the period of his service. The grouse of the present petitioner in the present writ petition is that the Labour Court had erred in holding that the petitioner was not entitled to gratuity. It has been clearly proved in the award that he was fully entitled to gratuity and period of service was also proved. The Labour Court while passing the order in the proceedings u/s 33-C(2) of the Industrial Disputes Act which did not supersede the award. By not awarding the amount due to the petitioner, the Labour Court had committed the illegality while passing order, annexure P-2, dated March 20, 1980, and that the Labour Court has not rightly appreciated the facts of the case.

Notice of the writ petition was given to the contesting respondent, Modi Wire Products, Gobindgarh, which filed written statement and denied the averments of the writ petition and the respondent management had tried to justify the orders, annexure P-2. According to the petitioner, he was engaged in the masonary job in the factory on casual/daily basis. The petitioner worked intermittently and had put in work for 61 days to 186 days in a year during the period from 1969 to 1976. The petitioner did not work for 240 days in any particular year. It was also submitted that the petitioner himself gave up the job of his own accord and the petitioner was not ready to be reinstated in service even though an offer was given by the management to reinstate the petitioner before the Labour Court. After the passing of the award, the management sent a communication under registered cover to the petitioner informing him that his service record had been examined from which it was found that he did not qualify for the payment of gratuity under the Payment of Gratuity Act, 1972, and that in case the petitioner had any documentary evidence in his possession to establish his claim for gratuity he should furnish the same before the expiry of 30 days. The petitioner did not reply to the communication. Under the Payment of Gratuity Act, 1972, the petitioner was not entitled to any gratuity. In the proceedings u/s 33-C(2), the petitioner did not produce any evidence in order to show that he was entitled to the payment of any gratuity under the Payment of Gratuity Act, 1972. His application has been rightly rejected by the Labour Court. The management produced the entire record before the Labour Court to show that the petitioner did not work for 240 days in a particular year and his application u/s 33-C(2) has been rightly rejected by the Labour Court.

I have heard Shri. S. D. Sharma, Advocate, on behalf of the petitioner and Shri P. S. Patwalia, advocate, on behalf of the respondents and with their assistance I have been able to go through the record of this case.

In the reference, u/s 10(1)(c) of the Industrial Disputes Act, the Labour Court gave the award dated July 22, 1977. A perusal of the award, annexure P-1, shows that it was the categorical stand of the petitioner that he served the management for 18 years as a mason and he was drawing Rs. 16 per day on June 8, 1976, when his services were allegedly terminated by the management. This specific stand of the petitioner was contested by the management and while returning the finding under issues Nos. 1 and 2, the Labour Court, it is admitted that there was no cross-examination to the statement of the petitioner when he deposed that he had worked with the management for 18 years. The Labour Court had returned a categorical finding that an employee who had worked for 18 years could not be said to be a casual workman. In the light of this categorical finding, it was incumbent upon the Labour Court while disposing of the proceedings u/s 33-C(2) to hold that the petitioner was entitled to the gratuity at the rate of 15 days wages for each completed year of service. To proceed further the award dated July 22, 1977, the Labour Court had recognised the claim of the petitioner to the extent that he had served the management for 18 years. On the premises of this finding, it was not fair on the part of the Labour Court to hold that the applicant had failed to prove the number of years for which he put in service under the management. The operative portion of the impugned order dated March 17, 1980, runs as follows :

"In the present case, the workman has placed no cogent evidence on record in respect of the period of his service under the respondent."

This finding of the Labour Court cannot sustain in view of the categorical finding given in the award itself. The management was not justified after the passing of the award to issue a letter to the petitioner calling upon him to intimate as to how many years of service he had to show that his case for gratuity may be considered on its part. The rights of the petitioner with regard to the length of service had already been adjudicated upon in the award, annexure R-1, and the Labour Court was duty-bound the calculate the benefits occurring to the petitioner on the basis of the award. As I stated earlier the petitioner was entitled to 15 days'' wages for one completed year of service and that he had put in 18 years of service. Therefore, the petitioner was entitled to Rs. 3,600 in his application u/s 33-C(2) of the Industrial Disputes Act instead of Rs. 4,404 as claimed by him.

Resultanlly. the present writ petition is allowed by setting aside the order, annexure P-2, and directions are given to the respondent-management to pay a sum of Rs. 3,600 to the petitioner within 15 days from the date of the receipt of the copy of this order, failing which the petitioner shall also be entitled to interest at the rate of 18 per cent, per annum from the date of the expiry of 15 days. There shall be no order as to costs in the present writ petition.