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Judgment
KIRTI SINGH, J. (ORAL)
CM-12228-CWP-2022
The application is allowed as prayed for. Short reply on behalf of respondent No. 2 is taken on record.
CWP-2586-2020
The present writ petition has been filed under Article 226/227 of the Constitution of India seeking quashing of the award dated 15.10.2019 (Annexure P-3) passed by respondent No. 1, whereby the reference raised on behalf of the petitioner-workman was answered against him and his claim for reinstatement along with all other consequential benefits was declined.
Briefly stated as per the pleaded facts, the petitioner-workman was engaged by the respondent-department as a Common Room Attendant with effect from 01.11.2012, uptil 31.1.2016, when his services were terminated by the respondent concerned without any notice, pay or retrenchment compensation and in violation of the relevant provisions of Sections 25-F, 25-G and 25-H of the Industrial Disputes Act, 1947 (for short ‘the Act of 1947’). Aggrieved, the petitioner served a demand notice dated 15.6.2016 upon the management under Section 2-A of the Act, claiming therein that his services were terminated in violation of the relevant provisions of the Act of 1947. Subsequently, the petitioner filed his claim statement which was registered as reference No. 74 of 2016 before the learned Industrial Tribunal-cum-Labour Court, Rohtak, to which respondents No. 2 and 3 filed their written statements (Annexure P-2 Colly) raising preliminary objections as well as contesting the claim on merits.
Upon completion of pleadings of the parties, the Labour Court framed following issues:-
(1)Whether the termination of services of the workman is justified and if not to what relief he is entitled? OPW
(2)Relief.
Upon appreciation of the evidence available on record, the learned Industrial Tribunal, vide the impugned award dated 15.10.2019, answered the reference against the workman. Aggrieved thereby, the petitioner has approached this Court by way of the present writ petition.
Learned counsel for the petitioner submits that the learned Industrial Tribunal has erred in dismissing the claim of the workman despite the evidence available on record establishing that he had worked with the respondent-department continuously for more than 04 years. However, the learned Tribunal has failed to properly consider the duration of service rendered by the petitioner. Moreover, respondent No.2 was the principal employer, having disbursed the petitioner's salary on numerous occasions, although different agencies were also engaged for certain intervals, for the purpose of outsourcing of work. It is also submitted that the respondent-department never raised any question regarding the work and conduct of the petitioner. It has also been submitted that the learned Tribunal has failed to appreciate the provisions of Section 25-F of the Act of 1947, and that the termination of the petitioner was effected without following the mandatory procedure prescribed under the Act of 1947. It is further submitted that the learned Tribunal has failed to appreciate the testimony of WW-3 Ravinder Singh, who had proved the attendance record of the petitioner showing that he had worked with the respondent-department from 01.05.2013 till 31.01.2016. Thus, the said evidence established that the petitioner had remained in service during the aforesaid period and that respondent No.2 had handed over the work to respondent No.3 without obtaining the consent of the petitioner or giving him any notice. Therefore, it is prayed that the impugned award is patently illegal and deserves to be quashed.
Per contra, learned counsel for respondent No. 2 supports the impugned award. It is submitted that the petitioner had approached the learned Labour Court claiming himself to be an employee of the University, whereas, he was an employee of a third-party vendor who had procured the tender pursuant to the tender process issued by the University. It is further submitted that after considering the entire material on record, the learned Labour Court recorded a categorical finding that the petitioner had failed to establish an employer-employee relationship with the University. Learned counsel further submits that the petitioner had worked with respondent No. 3-M/s Orion, only for a period of four months, whereas the company through which the petitioner had worked from 2010 to June 2015 was not impleaded as a respondent. Learned counsel accordingly contend that the findings recorded by the Labour Court are based upon due appreciation of the oral and documentary evidence available on record, are well reasoned, and call for no interference in exercise of the extraordinary writ jurisdiction of this Court.
I have heard learned counsel for the parties and perused the relevant material on record.
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 reads 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 (hereinafter 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 retrenchment except in cases accepted in the Section itself, they are :- i) a voluntary 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 industry 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 provisions 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 fulfilled by an employer for getting a valid retrenchment, namely:-
i)One month's clear notice in writing indicating the reasons for retrenchment 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 continuous 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 Retrenchment". The purport of this Section is that if a workman has put in an uninterrupted 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 continuous 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, uninterrupted period for one year except the period the absence is permissible as mentioned hereinabove. Subsection (2) of Section 25B introduces the fiction to the effect that even if the workman is not in continuous service within 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 retrenchment not being in consonance of Section 25F of the Industrial Disputes 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 affidavit 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 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 produce 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 wages or any record or order in that regard was produced; no coworker was examined; muster roll produced by the employer has not been contradicted. 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 preceding the date of termination to decide the question of continuation of service for the purpose of Section 25F of the Industrial Disputes Act. The workman 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 department of daily wagers. In the absence of regular employment of the workman, the appellant was not expected to maintain seniority list of the employees engaged on daily wages and in the absence of any proof by the respondent regarding existence of the seniority list and his so called seniority no relief could be given to him for non-compliance of provisions of the Act. The Courts could have drawn adverse inference against the appellant 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.”
A perusal of the impugned order reveals that the learned Tribunal, after considering the pleadings and evidence led by the parties, has recorded a categorical finding that the version of the petitioner, that he was appointed as Common Room Attendant against permanent post by respondent No. 2, was not substantiated from the evidence on record. The petitioner in his cross-examination also admitted that he was not in possession of any appointment letter issued by the respondent-department. Thus, the Tribunal noticed that the petitioner has failed to establish that he was a direct employee of respondent No. 2; rather upon examination of the documentary evidence produced by respondent No. 2, it was noticed that the Common Room Attendants were engaged through contractors and that no such sanctioned post existed, against which the petitioner could have been appointed. The Tribunal also considered the petitioner's claim regarding his alleged period of engagement with respondent No. 3 and, on appreciation of the attendance record and other material, found that the petitioner had worked with respondent No. 3 only during the period from October 2015 to January 2016. Thus, the learned Labour Court held that the workman had failed to discharge the preliminary burden of proving continuous service of 240 days in the twelve months preceding the alleged termination. The Tribunal further observed that the service provider through whom the petitioner had secured work prior thereto had not been impleaded as a necessary party. Therefore, it was held that since respondent No.2 was not the employer of the petitioner, therefore, no adverse inference could be drawn against the respondents-department, and that the allegations of violation of Section 25-F of the Act of 1947 were not established. The Tribunal also observed that since no effort was made to implead M/s Delta Security as a necessary party, and in the absence of the said impleadment, no liability could be fastened upon respondent No. 2. Insofar as the allegations with regard to violation of Sections 25G and 25H of the Act of 1947 are concerned, the learned Tribunal observed that no evidence had been led by the petitioner to establish that any junior workman had been retained or that fresh appointment had been made in his place.
Taking into consideration the cumulative effect of the evidence on record, the Labour Court accepted the department's plea and answered the reference against the petitioner. The findings so recorded are pure findings of fact based upon appreciation of the evidence on record and cannot be said to suffer from perversity or any manifest legal infirmity. Merely because another view may also be possible on the same evidence would not justify interference by this Court in exercise of its writ jurisdiction.
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 ap-peal over the findings of fact recorded by the Labour Court. The scope of ju-dicial review is confined to examining whether the impugned Award suffers from perversity, patent illegality, jurisdictional error or is based on no evi-dence. 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 Labour Court suffer from any such infirmity. The impugned Award reflects a due and proper ap-preciation of the pleadings, the evidence adduced by the parties and the set-tled 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.