Director of Ayurveda Punjab and Another Vs. Sardool Singh and Another - Court Judgment

CWP No.20322 of 2004 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.20322 of 2004 (O&M) Date of Decision:

18. 03.2013 Director of Ayurveda, Punjab and another ....Petitioners Versus Sardool Singh and another ....Respondents CORAM:- HON'BLE Mr.JUSTICE RAJIV NARAIN RAINA Present: Mr.Amrit Pal Singh Gill, AAG, Punjab.

Mr.D.R.Punia, Advocate, for respondent No.1.”

1. To be referred to the Reporters or not?.”

2. Whether the judgment should be reported in the Digest?.

RAJIV NARAIN RAINA, J.

The challenge in this petition is to the Labour Court award dated 14.05.2004 (P-9).The reference No.29 of 1998 has been answered in favour of the respondent-workman.

The termination order has been held to be illegal.

Reinstatement with continuity of service with 50% back wages has been awarded.

Back wages have been ordered to run from the date of demand notice i.e.30.07.1997.

It is not disputed that the respondent was not a regular employee of the office of the District Ayurvedic & Unani Officer, Amritsar but was engaged in part-time capacity to work for two hours a day from 8 AM to 10 AM in the dispensary run by the State.

He was paid wages at rates fixed by the Administration for part-time employment under the Minimum Wages Act, 1948 and Punjab notifications issued thereunder.

On reference, the petitioner-State contested the reference by CWP No.20322 of 2004 (O&M) -2- taking the following stand:- "In this connection it is to bring to your kind notice that Sh.

Sardool Singh was not a regular Appointee of this Department whose services can be terminate at any time without assigning any reason or prior notice their of but he was a part time worker for two hours on financial year basis and his duty hours were 8 a.m.to 10 A.M.as per the requirement of the dispensary.

The payment for this work was made to Sh.

Sardool Singh part time worker as per D.S.rates and nothing is due.

The services of Sh.

Sardool Singh part time worker was sanctioned for the next financial year on the recommendation A.M.O.The services of Sh.

Sardool Singh part time worker were utilized in the dispatch on the basis of work that is from 8 A.M., but it is regretted to say that Sh.

Sardool Singh part time worker was never attended his duty 8 A.M.in the morning and he never worked upto 10 A.M.Annexure-1 On 4.6.97 when Sh.

Sardool Singh part time worker come to D.A.U.O.office for taking his wife, who is working in D.A.U.O.office as part time, Sh.

Sardool Singh part time worker miss behaved with the under signed in the presence of A.M.O.of health center Amritsar.

As per rules the services of Sh.

Sardool Singh part time worker will continue for the next financial year with the recommendation of the A.M.O.Incharge of health center Amritsar.

But in the light of misbehavior/misconduct made by Sh.

Sardool Singh part time worker the A.M.O.Incharge health center ASr.Refused to recommended the service of Sh.

Sarool Singh Anx.II consiquintly he appointed a new person in place of Sh.

Sardool Singh part-time worker so that the work of health centre may not suffer.

He terminated the service of Sh Sardool Singh part time worker on the basis of misconduct/misbehavior vide his office letter no.D.P.No.37 Ay dated 6.6.97 this is for your information please.

Thanking your.

No.1527 Dated 20.7.98.

Copy to:- Yours faithfullly, The director Ayurveda Pb.

Chandigarh For information and necessary action please Vide letter no.Ay-E-II-Pb-98/7034 dated 1.7.98 Sd/- Distt.

Ayurvedic/Unani Officer Amritsar."

It would, therefore, be necessary to reproduce the office order dated 6.6.1997 appointing one Sandeep Kumar and at the same time CWP No.20322 of 2004 (O&M) -3- terminating the services of the respondent-workman which reads as follows:- "OFFICE ORDER

The services of Sh.

Sardool Singh, Kohar, (Part time) Ayurvedic Swasth Kender, Amritsar are hereby terminated on account of unsatisfactory work and conduct and on account of misbehaviour with District Ayurvedic/Unani Officer, Amritsar.

Sh.

Sandeep Kumar is appointed as Part-time for two hours w.e.f.6.6.97 to 28.2.98 on the recommendation of Ayurvedic Medical Officer, Government Ayurvedic Dispensary, Amritsar proper.

Sd/- District Ayurvedic & Unani Officer, Amritsar.

Endorsement not DAUO-ASR-97/1002-05 Dated 6.6.97" The respondent-workman was apparently removed for misbehaviour.

The foundation of the order was misconduct and unsatisfactory work.

The cross-examination of the witnesses also centred around misbehaviour of Sardool Singh with one Dr.

Jugal Kishore.

Dr.

Jugal Kishore appeared as MW-3 on 04.06.1997.

He stated that he was posted as District Ayurvedic Officer at Amritsar.

He deposed that the workman misbehaved with him at about 10.30 AM in the morning of the day of incident by uttering the following words:- "I am not the servant of your father.

I will not perform duty for 2 hour for a sum of Rs.150/-" The witness denied the suggestion that he had concocted the story.

He stated that he did not lodge any complaint with the higher officials for alleged misbehaviour of the workman.

He stated that name of the workman was deleted from the attendance register on 07.06.1997.

He denied the suggestion that the workman's services were terminated for CWP No.20322 of 2004 (O&M) -4- protesting a claim for grant of full wages for eight hours of a day for his like.

What was meant was that though the appointment order offered appointment for two houRs.he was made to serve for eight hours a day.

From this, it appears that the question of misbehaviour is a private act between the workman and Dr.

Jugal Kishore who had retired from service on 31.03.2000 and stepped into the witness box on 14.09.2000 after superannuation.

Simranjit Kaur, Clerk from the office appeared as witness for the management and supported Dr.

Jugal Kishore on misbehaviour, though she did not name Dr.

Jugal Kishore as the person who received the brunt of misbehaviour.

She said that the workman misbehaved with 'officer'.

She denied that the workman was actually deployed to work for eight hours a day instead of two houRs.Department witnesses at best could depose only consistent with official record so the question whether the workman served eight hours a day or for two hours is one person's oral word against two.

The incident of misbehaviour alleged against the District Ayurvedic & Unani Officer in the presence of A.M.O., Head Center, Amritsar, Senior Ayurvedic Medical Officer, Incharge, Head Center consequently refused to recommend the continuance of the respondent-workman for the next financial year and appointed instead Sandeep Kumar in the termination order of Sardool Singh itself.

Indisputably, the workman had put in seven years of part-time service on the date of retrenchment.

It is also not disputed that the mandatory provisions of Section 25-F of the Industrial Disputes Act, 1947 (for short "the Act") were not complied with.

To the contrary, the case was contested by the State on the assumption that since it is a case of CWP No.20322 of 2004 (O&M) -5- termination for misbehaviour, therefore, the services of the workman could be terminated without assigning any reason or complying with the retrenchment procedure under Section 25-F of the Act.

The Labour Court by the impugned award held that the definition of workman does not exclude part-time worker.

Hence a part-time worker is also a workman.

It relied on the decision rendered by this Court in Shimla Devi versus Presiding Officer, Labour Court, Bathinda, 1996 S.C.T.225.

The question of completion of 240 days prior to retrenchment could not be denied in view of Government orders appointing ad terminating the workman.

MW-1 Simranjit Kaur stated in her cross-examination that no retrenchment compensation and notice pay was paid or offered to the workman at the time of termination/retrenchment.

No enquiry was held against him.

Since the issue of a part-time worker being a workman or not was pending consideration before the Full Bench in CWP No.4660 of 1999 this matter came up for hearing on 03.01.2005 and was adjourned sine die to be listed after the decision in the aforesaid case.

However, on 15.07.2005 the Division Bench of this Court issued notice of motion and the operation of the impugned award dated 14.05.2004 was stayed subject to the provisions of Section 17-B of the Act.

Civil Writ Petition No.4660 of 1999 was disposed of on 22.05.2008.

The issue of whether a part-time worker is a workman within the meaning of Section 2(s) of the Act has been settled in affirmative in Divisional Manager, New India Assurance Company Limited versus A.Sankaralingam, (2008) 10 SCC 698.

The last drawn wages as part-time worker for 1996-97 as fixed by CWP No.20322 of 2004 (O&M) -6- the Deputy Commissioner was at a micro rate of Rs.243/- per month.

Since the operation of the award had been stayed subject to 17-B the State was called upon to file reply to the Section 17-B application.

Reply was filed on 07.01.2013 and an amount of Rs.17,644/- was paid to the respondent- workman through cheque handed over in Court to learned counsel representing him.

The question that remains to be decided in this case is whether a part time employee being workman would it be justified to throw him out for alleged misbehaviour with superior without even a modicum of a fact finding enquiry to satisfy the test of audi alteram partem and of reasonableness.

This Court finds that there is an admission in the deposition of Dr.

Jugal Kishore appearing as a management witness in his cross- examination that the alleged misbehaviour was not brought to the notice of his superiors by him in writing for them to take whatever action they thought fit.

If the words were rough they were not such as would render it a misbehaviour warranting immediate termination of service.

Table manners and etiquette were hardly expected from Sardool Singh.

A mountain as the saying goes cannot be made out of a molehill.

The District Ayurvedic & Unani Officer appears to have over-reacted.

If he had a replacement ready it would show that an excuse was found and with one stroke of the pen he threw out Sardool Singh and replaced him by Sandeep Kumar to serve the remainder of the period of financial sanction accorded for the post.

By what process was Sandeep Kumar appointed remains a mystery.

The order of termination dated 06.06.1997 is stigmatic as it is based on misbehaviour.

What the misbehaviour was is not spelt out in the CWP No.20322 of 2004 (O&M) -7- order and may give an impression of serious wrong doing in the hands of person before whom Sardool Singh may seek future employment.

In the same order, he was replaced by another part-time worker Sandeep Kumar.

There is a settled rule against replacing a contract worker by a contract worker a part time by part time etc.I do not find any cogent or valid reason to interfere with the impugned award which is neither perveRs.not arbitrary not based on misappreciation of evidence.

The jurisdiction of this Court in examining awards of Labour Courts is not appellate and is limited as laid down in Syed Yakoob v.

K.S.Radhakrishnan; AIR 196.SC 477.

Resultantly, the writ petition would stand dismissed.

However, the payment of Rs.17,644/- to the workman in Court on 07.01.2013 would be adjusted from the 50% back wages awarded w.e.f.30.07.1997.

The amounts be calculated and paid to the workman within two months from the date of receipt of certified copy of this order.

The respondent-workman would stand reinstated to part-time service with continuity of service.

The amount of back wages be not calculated and paid with 6% interest w.e.f.30.07.1997.

(RAJIV NARAIN RAINA) JUDGE 18 03.2013 manju