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Judgment
KIRTI SINGH, J. (Oral)
The present writ petition has been filed by the petitioner-management under Articles 226/227 of the Constitution of India for quashing the Award dated 09.12.2016 (Annexure P-3) passed by the learned Labour Court, Panipat, in Reference No.45 of 2013, whereby the reference has been answered in favour of workman-respondent No.1 to the effect that he is entitled to reinstatement with continuity of service and 50% back wages from the date of filing of the demand notice.
As per the pleaded case, workman-respondent No.1 raised an industrial dispute through his demand notice dated 28.08.2012, alleging that he was appointed as a Water Pump Operator by the petitioner on 18.07.2009 at a monthly salary of Rs.4,000/-, that he worked continuously from 18.07.2009 to 31.12.2010, and that his services were illegally terminated on 31.12.2010 without notice or retrenchment compensation, though he had completed more than 240 days of service. The dispute was referred to the learned Labour Court, Panipat, and registered as Reference No.45 of 2013. In its written statement, the petitioner-management denied the existence of any employer-employee relationship and pleaded that the workman had never worked with the department. Based on the pleadings of the parties and the evidence produced before it, the learned Labour Court held that the relationship of employer and employee stood established, that the workman had completed 240 days of continuous service, and that his termination, without compliance of Section 25-F of the Industrial Disputes Act, 1947, was illegal, and accordingly directed his reinstatement with continuity of service and 50% back wages from the date of filing of the demand notice, i.e. 28.08.2012.
Learned counsel for the petitioner-management submits that the learned Labour Court overlooked the fact that Mark-A was a mere photocopy of the log book, was never got exhibited in accordance with the provisions of the Evidence Act, and remained wholly uncorroborated, and that the workman had infact produced no appointment letter, wage slip or other documentary evidence to discharge the burden of establishing the employer employee relationship. Reliance is placed upon the judgments passed in Assistant Engineer, Rajasthan Development Corporation v. Gitam Singh, 2013(2) SCT 30, and Municipal Council, Dina Nagar, Tehsil and District Gurdaspur v. Presiding Officer, Labour Court, Gurdaspur and another, 2014(4) SCT 514, and it is submitted that be even the right to reinstatement is not automatic and does not follow merely because the workman has completed 240 days of service, and that while directing reinstatement, the Labour Court is required to take into consideration factors such as the nature of appointment, availability of a post and availability of work, among other considerations, which was not done in the present case.
Per contra, learned counsel for respondent No.1 supports the impugned Award and submits that MW-1 himself admitted in his cross-examination that the log book was filled up by the tubewell operator, which corroborated the workman's case, and that once the petitioner-management failed to produce the summoned original record despite being called upon to do so, an adverse inference was rightly drawn against it. It is submitted that the finding regarding existence of the relationship of employer and employee, as well as completion of 240 days of continuous service, is a pure finding of fact based on evidence, and that the impugned Award calls for no interference.
I have heard learned counsel for the parties and perused the 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."
Reverting to the case in hand, the principal challenge to the impugned award is to the finding recorded by the learned Labour Court regarding the existence of relationship of employer and employee between the parties and, consequently, its finding that the respondent-workman had completed more than 240 days of continuous service and that his termination was in violation of Section 25-F of the Industrial Disputes Act, 1947. Learned counsel for the petitioner has primarily contended that the learned Labour Court erred in relying upon Mark-A, stated to be photocopies of the relevant log book, particularly when the management had denied the engagement of the workman and the original log book was admittedly not available. The submission, however, does not merit acceptance. The learned Labour Court considered the evidence led by both sides before recording its findings.
A perusal of the material on record reveals that the workman appeared as WW-1 and supported his case that he had worked as a Water Pump Operator from 18.07.2009 to 31.12.2010. The evidence of WW-2 and WW-3 regarding the non-availability of the original log book was also noticed. The management, on the other hand, examined MW-1, who denied that the workman had ever worked in the department. The Labour Court thereafter considered Mark-A and noticed that the log book entries bore the signatures of the workman and related to the respondent-department. It also took note of the statement of MW-1 in cross-examination that the log book was filled up by the tubewell operator himself. On an overall appreciation of this evidence, the Labour Court found the workman's version regarding his engagement to be acceptable and held that he had completed the requisite period of continuous service.
It is true that the management had disputed the relationship of employer and employee and had relied upon the fact that the original log book had been misplaced. However, this aspect was not overlooked by the Labour Court. The explanation regarding the missing record and the evidence of the management were considered along with the material produced by the workman. The finding, therefore, cannot be characterised as one based on no evidence or arrived at by ignoring the material circumstances. The grievance of the petitioner essentially seeks a reappreciation of the evidence and substitution of the view taken by the Labour Court with another possible view.
Such an exercise is not warranted in the limited jurisdiction of this Court under Articles 226/227 of the Constitution of India. The Labour Court is the fact-finding forum and, where its conclusions are based upon appreciation of evidence available on record, interference is called for only where the findings are shown to be perverse, based on no evidence, or suffer from a patent error of law or jurisdiction. No such infirmity is demonstrated in the present case. Having found the relationship and the requisite period of service established, the Labour Court proceeded to consider the termination in the light of Section 25-F of the Act and held the same to be illegal for non-compliance with the statutory requirement.
No doubt, learned counsel for the petitioner has placed reliance upon Assistant Engineer, Rajasthan Development Corporation and another vs. Gitam Singh, 2013(2) SCT 30, and upon the Full Bench decision in Municipal Council, Dinanagar, Tehsil and District Gurdaspur vs. Presiding Officer, Gurdaspur & another, 2014(4) SCT 514, to contend that reinstatement ought not to have been directed and that monetary compensation alone was the appropriate relief; however, the said judgments, rather than assisting the case of the petitioner, in fact fortify the impugned award. In Gitam Singh (supra), the Hon'ble Supreme Court itself clarified that before exercising its judicial discretion, the Labour Court has to keep in view all relevant factors, including the mode and manner of appointment, nature of employment, length of service, the ground on which the termination has been set aside, and the delay in raising the industrial dispute, and it was only upon a cumulative failure of these considerations, coupled with the workman having worked for a short period of eight months as a daily wager, that reinstatement was found unsustainable in that case.
Similarly, the Full Bench in Municipal Council, Dinanagar (supra) required the Labour Court to weigh the nature of appointment, availability of post, availability of work, whether the appointment was as per rules and statutory provisions, length of service, and delay in raising the industrial dispute, before moulding relief. In the present case, the learned Labour Court has not proceeded in a casual manner without adverting to the factual matrix, but has, upon appreciation of the evidence on record, granted reinstatement with continuity of service coupled with only 50% back wages, and not full back wages, from the date of the demand notice, thereby itself moulding the relief having regard to the very factors that the cited judgments require to be weighed. The judgments relied upon by the petitioner are, therefore, distinguishable on facts and do not warrant interference with the impugned award.
However, having regard to the overall facts and circumstances of the case, this Court is of the considered view that the relief of reinstatement, at this stage, would not be an appropriate remedy. The respondent-workman had admittedly been engaged as a Water Pump Operator on the basis of the arrangement pleaded by him and his services came to an end on 31.12.2010. More than fifteen years have elapsed thereafter. In such circumstances, directing reinstatement at this distant point of time, with consequential continuity of service and back wages, would neither serve the ends of justice nor be commensurate with the nature and duration of the engagement. The object of the Industrial Disputes Act is to secure just and equitable relief and, while the finding of illegal termination may warrant appropriate monetary recompense, reinstatement is not an inevitable consequence in every case of violation of Section 25-F of the Act.
At the same time, the workman cannot be left without any relief, particularly when the finding of the learned Labour Court that his engagement and completion of the requisite period of service stood established does not warrant interference in the present proceedings. Balancing the competing equities and taking into consideration the length of service, the nature of engagement, the considerable passage of time since the termination, and the fact that reinstatement at this stage would be impracticable, this Court considers it appropriate to mould the relief by awarding lump-sum compensation in lieu of reinstatement, continuity of service and back wages.
Accordingly, while the finding of the learned Labour Court that the termination of the respondent-workman was illegal is upheld, the direction for reinstatement with continuity of service and 50% back wages is modified. In lieu thereof, the petitioner-management shall pay to respondent No.1 a lump-sum compensation of Rs.1,00,000/- (Rupees One Lakh only) within a period of eight weeks from the date of receipt of a certified copy of this order. The aforesaid amount shall be in full and final satisfaction of the relief arising out of the impugned Award, and upon payment thereof, the respondent-workman shall have no further claim for reinstatement, continuity of service or back wages pursuant to the Award.
The writ petition is, accordingly, disposed of in the above terms.
Pending application(s), if any, also stand disposed of.