Ravinder Singh vs The Presiding Officer, Industrial Tribunal-cum-Labour Court, Panipat and Others

Rameshwar Singh Malik, J.—This order proposes to dispose of two writ petitions bearing CWP No. 19980 of 2012 (Ravinder Singh v. The Presiding Officer, Industrial Tribunal-cum-Labour Court, Panipat and others) and CWP No. 20003 of 2012 (Ram Kunwar v. The Presiding Officer, Industrial Tribunal-cum-Labour Court, Panipat and others) filed separately by each workman, but against the same management-respondents against the similar awards passed by the learned Labour Court. Facts are also similar. However, for the facility of reference, the facts are being culled out from CWP No. 19980 of 2012. Briefly put, the facts of the case are that the petitioner was engaged as a unskilled labourer in the month of September 2004. It is his further pleaded case that he worked with the respondent-management upto 31.8.2007 when his services were abruptly terminated without complying with the provisions of Section 25-F of the Industrial Disputes Act, 1947 (''I.D. Act'' for short). He raised the industrial dispute by way of demand notice (Annexure P-1). Conciliation proceedings having failed, the industrial dispute was referred to the learned Labour Court for its adjudication. Parties led their respective evidence. After hearing both the parties and going through the evidence brought on record, the learned Labour court decided the reference against the petitioner-workman by way of impugned award dated 20.7.2012 (Annexure P-3). It is pleaded on behalf of the petitioner that as per the own showing of respondent-management, vide Annexure P-2, the petitioner had completed 265 days during the preceding 12 calendar months on the date of his termination. Similar was the position in the other case, wherein petitioner Ram Kunwar had completed 264 days as per the own showing of the respondent management vide Annexure P-2. Notice of motion was issued and pursuant thereto, written statement on behalf of the respondent-management was filed.

Learned counsel for the petitioner submits that the learned Labour Court proceeded on misconceived approach, while passing the impugned award, altogether ignoring the official record available before it in the form of Annexure P-2, which clearly shows that petitioner had completed 265 days in the preceding 12 calendar months on the date of his termination. Although the respondent-management tried to confuse this factual aspect segregating the working period of the petitioner during 2 calendar years i.e. 2006-07 instead of preceding 12 calendar months, yet they could not deny the fact that the petitioner had completed more than 240 days in one year and during preceding 12 calendar months on the date of his termination, she also relies upon the judgment of the Hon''ble Supreme Court in Mohan Lal Vs. Management of Bharat Electronics Ltd., she prays for setting aside the impugned award by allowing the present writ petition.

Per contra, learned counsel for the respondent-management submits that since the petitioner could not make out a case before the learned Labour Court that he had completed 240 days, the learned Labour Court has rightly passed the impugned award and the same deserves to be upheld. He further submits that the petitioner failed to discharge his onus to prove the violation of Section 25-F of the I.D. Act, because of which no illegality can be attached to the impugned award. 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 contentions raised, this court is of the considered opinion that in view of the peculiar fact situation of the present case, both these writ petitions deserve to be partly allowed. To say so, reasons are more than one, which are being recorded hereinafter.

Admission is the best evidence. Details of the work done given in Annexure P-2 by the respondent-management itself, was sufficient for the learned Labour Court to arrive at a conclusion in favour of the petitioner. However, the learned Labour Court failed to appreciate this material aspect of the matter in the right perspective. In fact, Annexure P-2 is the official document of the respondent-management in the form of reply to the demand notice Annexure P-1. This being a part of pleadings and not in dispute, ought to have proved a clincher in favour of the petitioner, so far as his completion of 240 days during the preceding 12 calendar months on the date of his termination was concerned. However, the learned Labour Court lost sight of this important document. Having said that, this court feels no hesitation to conclude that the impugned award cannot be sustained as it is.

A plain reading of Section 25-F of the I.D. Act would show that the petitioner-workman was required to complete 240 days of service during the preceding 12 calendar months on the date of termination of his service. No effort was made on behalf of the respondent-management to show that mandatory provisions of Section 25-F of the I.D. Act were complied with. However, learned Labour Court failed to appreciate this aspect as well.

The view taken by this court also finds support from the judgment of the Hon''ble Supreme Court in Mohan Lal''s case (supra). Relevant observations made in para 14 of the judgment, which can be gainfully followed in the present case, read as under:-

We have already extracted Section 25-B since its amendment and the change in language is the legislative exposition of which note must be taken. In fact, we need not further dilate upon this aspect because in Surendra Kumar Verma and Others Vs. Central Government Industrial Tribunal-Cum-Labour Court, New Delhi and Another, Chinnappa Reddy, J., after noticing the amendment and referring to the decision in Sur Enamel and Stamping Works (P) Ltd. Vs. Their Workmen, ) held as under (at p. 426 of AIR):

These changes brought about by Act 36 of 1964 appear to be clearly designed to provide that a workman who has actually worked under the employer for not less than 240 days during a period of twelve months shall be deemed to have been in continuous service for a period of one year whether or not he has in fact been in such continuous service for a period of one year. I? is enough that he has worked for 240 days in a period of 12 months, it is not necessary that he should have been in the service of the employer for one whole year.

In a concurring judgment Pathak, J. agreed with this interpretation of Section 25-B(2). Therefore, both on principle and on precedent it must be held that Section 25-B(2) comprehends a situation where a workman is not in employment for period of 12 calendar months, but has rendered service for a period of 240 days within the period counting backwards from the relevant date i.e. The date of retrenchment. If he has, he would be deemed to be in continuous service for a period of one year for the purpose of Section 25-B and Chapter VA.

However, since the petitioner-workman did not summon the official record to prove the total service rendered by him, it could not be proved on record, as to what was the total period of service rendered by the petitioner. His self serving statement in this regard would not be sufficient to conclude that he had rendered service from 2004 to 2007, because it is not so admitted by the respondent-management also. In the absence of any cogent evidence in this regard, to arrive at a conclusion about the total length of service rendered by the petitioner, it would not be appropriate to direct his reinstatement in service. However, since the service of 264 days rendered by the petitioner has been duly proved from the own evidence of the respondent-management, the petitioner will be entitled for a reasonable amount of compensation.

During the course of hearing, learned counsel for the State could not put into service any substantive argument to persuade this court to take a different view than the one taken herein above. He could not dispute the details of work rendered by the petitioner, because the same was given by the respondent-management in Annexure P-2. Once it is so, nothing more was required to be proved. However, since the learned Labour Court misdirected itself while neither discussing nor discarding, but altogether ignoring Annexure P-2, the impugned award cannot be sustained.

The above said view taken by this court also finds support from the judgment of the Hon''ble Supreme Court in Bharat Sanchar Nigam Ltd. Vs. Man Singh, . Since in the present case, only this much could be proved that the petitioner-workman had rendered the service of 240 days during the preceding 12 calendar months on the date of his termination of service, the order of reinstatement would not be justified and only the compensation would meet the ends of justice.

No other argument was raised.

Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this court is of the considered view that in the given fact situation of these two cases, both deserve to be partly allowed.

Consequently, the impugned award dated 20.7.2012 (Annexure P-3) passed by the learned Labour Court is ordered to be set aside. However, while moulding the relief with a view to do complete justice between the parties, the petitioner-workman is held entitled for the compensation of Rs. 45,000/- in each case. This view is also supported by the observations made by the Hon''ble Supreme Court in Maan''s Singh''s case (supra). The respondent-management is directed to pay Rs. 45,000/- to each of the petitioners in both these cases towards the full and final settlement of their claim, within a period of two months from the date of receipt of certified copy of this order. However, in case the payment is not made to the petitioner within the above said stipulated period of two months, the petitioner-workman shall be entitled to interest @ 9% per annum.

Resultantly, both the writ petitions stand partly allowed to the abovesaid extent, however, with no order as to costs.