Cwp No.14682 of 2010 Vs. Presiding Officer Industrial Tribunal-cum-labour Court-1 - Court Judgment

SooperKanoon Citationsooperkanoon.com/1067876
CourtPunjab and Haryana High Court
Decided OnJul-23-2013
AppellantCwp No.14682 of 2010
RespondentPresiding Officer Industrial Tribunal-cum-labour Court-1
Excerpt:
cwp no.14682 o”1. in the high court of punjab and haryana at chandigarh. cwp no.14682 of 2010 date of decision :23. 7.2013 dinesh .....petitioner versus presiding officer, industrial tribunal-cum-labour court-1, gurgaon and another ....respondents ..coram : hon'ble mr.justice rameshwar singh malik ..present : mr.s.k.bawa, advocate for the petitioner. mr.s.s.dalal,advocate for the respondents..rameshwar singh malik, j the important question of law that falls for consideration of this court is, whether the workman was entitled for the relief of reinstatement with continuity in service and back wages, once the violation of mandatory provisions of section 25-f of the industrial disputes act, 1947 (for short `the act') has been duly established. facts first. petitioner workman was engaged as chowkidar by the respondent-management with effect from 1.3.1998. his services came to be terminated in the month of february 2001 without giving notice of one month or payment of salary in lieu thereof. he was also not paid any retrenchment compensation. the industrial dispute raised by the workman was referred to the cwp no.14682 o”2. learned labour court. the respondent-management appeared and filed its reply controverting the allegations levelled by the workman. it was alleged that the service of the workman was never terminated, but he himself abandoned the job. however, it was admitted by the respondent-management that the petitioner-workman worked from 23.3.1998 till 25.1.2001 and thereafter he absented himself. however, it is not the pleaded case on behalf of the respondent-management that any enquiry was conducted against the workman on account of his alleged absence. parties led their respective evidence before the labour court. the learned labour court recorded the finding that the respondent-management has violated the mandate of section 25-f of the act. however, instead of directing reinstatement of the workman, he was granted only the compensation. feeling aggrieved against the impugned award, the workman has approached this court by way of instant writ petition. notice of motion was issued and pursuant thereto, written statement has been filed on behalf of respondent no.2. learned counsel for the petitioner submits that once the learned labour court has recorded the positive finding that the respondent-management has violated the mandatory provisions of section 25-f of the act, the workman was entitled for reinstatement with continuity of service and full back wages. he further submits that the learned labour court has failed to record any cogent reason,while denying the relief of reinstatement. finally, he prays for setting aside the impugned award by allowing the present writ petition. on the other hand, learned counsel for the respondent- management submits that the learned labour court has rightly granted the relief of compensation instead of reinstatement. he further submits that inspite of violation of section 25-f of the act, having been established, the relief of cwp no.14682 o”3. reinstatement does not follow automatically. he next contended that owing to the nature of duties of the petitioner-workman, who was working as chowkidar on temporary basis, his post has been filled up by engaging another person. he also submits that since the petitioner left the job on his own and remained absent unauthorisedly, he was not entitled for the relief of reinstatement. he prays for dismissal of the writ petition. having heard the learned counsel for the parties, after careful perusal of the record of the case and giving thoughtful consideration to the rival contentions raised, this court is of the considered opinion that this petition deserves to be allowed in view of its peculiar fact situation. to say so, reasons are more than one, which are being recorded hereinafter. the material facts of the case are not in dispute. it has been admitted by the respondent-management even in its written statement filed to the present writ petition that the petitioner worked from 23.3.1998 till 25.1.2001. the plea raised on behalf of the respondent-management that petitioner absented himself, did not find favour with the learned labour court. admittedly, no enquiry was conducted against the petitioner workman on account of his alleged absence. after going through the evidence available on the record, the learned labour court has rightly recorded the finding that the mandatory provisions of section 25-f of the act, stood violated in the present case. the termination of the services of petitioner-workman was held to be bad in the eyes of law. the respondent-management never challenged this positive finding recorded by the learned labour court. having said that, this court feels no hesitation to conclude that once the petitioner-workman has duly established on record that the respondent-management has glaringly violated cwp no.14682 o”4. the mandatory provisions of section 25-f of the act, the learned labour court ought to have ordered reinstatement of the petitioner-workman with continuity of service. the relief regarding back wages could have been suitably moulded. the view taken by this court also finds support from the judgements of the hon'ble supreme court in ramesh kumar versus state of haryana 2010(2) rs.166, harjinder singh versus punjab state warehousing corporation, 2010(2) rs.113 and devinder singh versus municipal council, sanaur, 2011(3) rs.341. the hon'ble supreme court in para 13, 14, 20 and 21 of devinder singh's case (supra) observed as under :- “13. the source of employment, the method of recruitment,the terms and conditions of employment/contract of service, the quantum of wages/pay and the mode of payment are not at all relevant for deciding whether or not a person is a workman within the meaning of section 2(s) of the act.”14. it is apposite to observe that the definition of workman also does not make any distinction between full time and part time employee or a person appointed on contract basis. there is nothing in the plain language of section 2(s) from which it can be interfered that only a person employed on regular basis or a person employed for doing whole time job is a workman and the one employed on temporary, part time or contract basis on fixed wages or as a casual employee or for doing duty for fixed hours is not a workman.”20. this court has repeatedly held that the provisions cwp no.14682 o”5. contained in section 25f(a) and (b) are mandatory and termination of the service of a workman, which amounts to retrenchment within the meaning of section 2(oo) without giving one month's notice or pay in lieu thereof and retrenchment compensation is null and void/illegal/inoperative – state of bombay versus hospital mazdoor sabha, air 196.sc 610.bombay union of journalists versus state of bombay, air 196.sc 1617.state bank of india versus n.sundara money (supra).santosh gupta versus state bank of patial, 1980 (3)scc 340.mohan lal versus bharat electronics ltd., 1981(3) scc 225.l.robert d'souza versus southern railway (supra).surendra kumar verma versus central government industrial tribunal-cum- labour court, 1980(4) scc 443.gammon india ltd.versus niranjan dass, 1984(1) scc 509.gurmail singh versus state of punjab, 1991(1) scc 18.and pramod jha versus state of bihar, 2003(4) scc 619.”21. in anoop sharma versus executive engineer, public health division, haryana (supra).the court considered the effect of violation of section 25f, referred to various precedents on the subject and held the termination of service of a workman without complying with the mandatory provisions contained in section 25-f(a) and (b) should ordinarily result in his reinstatement.” respectfully following the above said law laid down by the hon'ble supreme court, which aptly applies in the present case, it is cwp no.14682 o”6. unhesitatingly held that the learned labour court fell in serious error of law, while not granting the relief of reinstatement with continuity of service to the petitioner workman. the observations made by the learned labour court that petitioner-workman was a temporary employee was totally out of context for the reason that the workman was not claiming regularisation of his service. he would be reinstated in the same position, in which he was working immediately before termination of his service. the terminology of a temporary employee or a regular employee is no where defined in the act. in this view of the matter, it is held that once the learned labour court comes to the conclusion that the termination of service of the workman was not sustainable in law, being void ab-initio, the normal rule of reinstatement with continuity of service deserves to be followed. however, this court would hasten to add that this normal rule of reinstatement with continuity of service and back wages is not absolute and exceptions may always be there. further, the learned labour court would do well,while moulding the relief qua back wages, which may depend upon different relevant factors as per the peculiar fact situation obtaining in each case. 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 the impugned award dated 28.4.2010 passed by the learned labour court cannot be sustained and the same is hereby ordered to be set aside. the petitioner is held entitled for reinstatement with continuity of service, however, with 50% back wages from the date of demand notice, till the actual payment thereof. consequently, the respondent-management is directed to complete cwp no.14682 o”7. the exercise within a period of three months, failing which the petitioner shall be entitled for interest @ 9% p.a.on the amount of 50% back wages, to be calculated from the date of demand notice, till the date of actual payment thereof. resultantly, the present writ petition stands allowed, in the terms aforementioned, however, with no order as to costs. 23.7.2013 (rameshwar singh malik) gs judge
Judgment:

CWP No.14682 o”

1. IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

CWP No.14682 of 2010 Date of Decision :

23. 7.2013 Dinesh .....Petitioner versus Presiding Officer, Industrial Tribunal-cum-Labour Court-1, Gurgaon and another ....Respondents ..CORAM : HON'BLE Mr.JUSTICE RAMESHWAR SINGH MALIK ..Present : Mr.S.K.Bawa, Advocate for the petitioner.

Mr.S.S.Dalal,Advocate for the respondents..RAMESHWAR SINGH MALIK, J The important question of law that falls for consideration of this court is, whether the workman was entitled for the relief of reinstatement with continuity in service and back wages, once the violation of mandatory provisions of Section 25-F of the Industrial Disputes Act, 1947 (for short `the Act') has been duly established.

Facts first.

Petitioner workman was engaged as Chowkidar by the respondent-management with effect from 1.3.1998.

His services came to be terminated in the month of February 2001 without giving notice of one month or payment of salary in lieu thereof.

He was also not paid any retrenchment compensation.

The industrial dispute raised by the workman was referred to the CWP No.14682 o”

2. learned Labour Court.

The respondent-management appeared and filed its reply controverting the allegations levelled by the workman.

It was alleged that the service of the workman was never terminated, but he himself abandoned the job.

However, it was admitted by the respondent-management that the petitioner-workman worked from 23.3.1998 till 25.1.2001 and thereafter he absented himself.

However, it is not the pleaded case on behalf of the respondent-management that any enquiry was conducted against the workman on account of his alleged absence.

Parties led their respective evidence before the Labour Court.

The learned Labour Court recorded the finding that the respondent-management has violated the mandate of Section 25-F of the Act.

However, instead of directing reinstatement of the workman, he was granted only the compensation.

Feeling aggrieved against the impugned award, the workman has approached this court by way of instant writ petition.

Notice of motion was issued and pursuant thereto, written statement has been filed on behalf of respondent no.2.

Learned counsel for the petitioner submits that once the learned Labour Court has recorded the positive finding that the respondent-management has violated the mandatory provisions of Section 25-F of the Act, the workman was entitled for reinstatement with continuity of service and full back wages.

He further submits that the learned Labour Court has failed to record any cogent reason,while denying the relief of reinstatement.

Finally, he prays for setting aside the impugned award by allowing the present writ petition.

On the other hand, learned counsel for the respondent- management submits that the learned Labour Court has rightly granted the relief of compensation instead of reinstatement.

He further submits that inspite of violation of Section 25-F of the Act, having been established, the relief of CWP No.14682 o”

3. reinstatement does not follow automatically.

He next contended that owing to the nature of duties of the petitioner-workman, who was working as Chowkidar on temporary basis, his post has been filled up by engaging another person.

He also submits that since the petitioner left the job on his own and remained absent unauthorisedly, he was not entitled for the relief of reinstatement.

He prays for dismissal of the writ petition.

Having heard the learned counsel for the parties, after careful perusal of the record of the case and giving thoughtful consideration to the rival contentions raised, this court is of the considered opinion that this petition deserves to be allowed in view of its peculiar fact situation.

To say so, reasons are more than one, which are being recorded hereinafter.

The material facts of the case are not in dispute.

It has been admitted by the respondent-management even in its written statement filed to the present writ petition that the petitioner worked from 23.3.1998 till 25.1.2001.

The plea raised on behalf of the respondent-management that petitioner absented himself, did not find favour with the learned Labour Court.

Admittedly, no enquiry was conducted against the petitioner workman on account of his alleged absence.

After going through the evidence available on the record, the learned Labour Court has rightly recorded the finding that the mandatory provisions of Section 25-F of the Act, stood violated in the present case.

The termination of the services of petitioner-workman was held to be bad in the eyes of law.

The respondent-management never challenged this positive finding recorded by the learned Labour Court.

Having said that, this court feels no hesitation to conclude that once the petitioner-workman has duly established on record that the respondent-management has glaringly violated CWP No.14682 o”

4. the mandatory provisions of Section 25-F of the Act, the learned Labour Court ought to have ordered reinstatement of the petitioner-workman with continuity of service.

The relief regarding back wages could have been suitably moulded.

The view taken by this court also finds support from the judgements of the Hon'ble Supreme Court in Ramesh Kumar versus State of Haryana 2010(2) Rs.166, Harjinder Singh versus Punjab State Warehousing Corporation, 2010(2) Rs.113 and Devinder Singh versus Municipal Council, Sanaur, 2011(3) Rs.341.

The Hon'ble Supreme Court in para 13, 14, 20 and 21 of Devinder Singh's case (supra) observed as under :- “13.

The source of employment, the method of recruitment,the terms and conditions of employment/contract of service, the quantum of wages/pay and the mode of payment are not at all relevant for deciding whether or not a person is a workman within the meaning of Section 2(s) of the Act.”

14. It is apposite to observe that the definition of workman also does not make any distinction between full time and part time employee or a person appointed on contract basis.

There is nothing in the plain language of Section 2(s) from which it can be interfered that only a person employed on regular basis or a person employed for doing whole time job is a workman and the one employed on temporary, part time or contract basis on fixed wages or as a casual employee or for doing duty for fixed hours is not a workman.”

20. This Court has repeatedly held that the provisions CWP No.14682 o”

5. contained in Section 25F(a) and (b) are mandatory and termination of the service of a workman, which amounts to retrenchment within the meaning of Section 2(oo) without giving one month's notice or pay in lieu thereof and retrenchment compensation is null and void/illegal/inoperative – State of Bombay versus Hospital Mazdoor Sabha, AIR 196.SC 610.Bombay Union of Journalists versus State of Bombay, AIR 196.SC 1617.State Bank of India versus N.Sundara Money (supra).Santosh Gupta versus State Bank of Patial, 1980 (3)SCC 340.Mohan Lal versus Bharat Electronics Ltd., 1981(3) SCC 225.L.Robert D'souza versus Southern Railway (supra).Surendra Kumar Verma versus Central Government Industrial Tribunal-cum- Labour Court, 1980(4) SCC 443.Gammon India LTD.versus Niranjan Dass, 1984(1) SCC 509.Gurmail Singh versus State of Punjab, 1991(1) SCC 18.and Pramod Jha versus State of Bihar, 2003(4) SCC 619.”

21. In Anoop Sharma versus Executive Engineer, Public Health Division, Haryana (supra).the Court considered the effect of violation of Section 25F, referred to various precedents on the subject and held the termination of service of a workman without complying with the mandatory provisions contained in Section 25-F(a) and (b) should ordinarily result in his reinstatement.”

Respectfully following the above said law laid down by the Hon'ble Supreme Court, which aptly applies in the present case, it is CWP No.14682 o”

6. unhesitatingly held that the learned Labour Court fell in serious error of law, while not granting the relief of reinstatement with continuity of service to the petitioner workman.

The observations made by the learned Labour Court that petitioner-workman was a temporary employee was totally out of context for the reason that the workman was not claiming regularisation of his service.

He would be reinstated in the same position, in which he was working immediately before termination of his service.

The terminology of a temporary employee or a regular employee is no where defined in the Act.

In this view of the matter, it is held that once the learned Labour Court comes to the conclusion that the termination of service of the workman was not sustainable in law, being void ab-initio, the normal rule of reinstatement with continuity of service deserves to be followed.

However, this court would hasten to add that this normal rule of reinstatement with continuity of service and back wages is not absolute and exceptions may always be there.

Further, the learned Labour Court would do well,while moulding the relief qua back wages, which may depend upon different relevant factors as per the peculiar fact situation obtaining in each case.

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 the impugned award dated 28.4.2010 passed by the learned Labour Court cannot be sustained and the same is hereby ordered to be set aside.

The petitioner is held entitled for reinstatement with continuity of service, however, with 50% back wages from the date of demand notice, till the actual payment thereof.

Consequently, the respondent-management is directed to complete CWP No.14682 o”

7. the exercise within a period of three months, failing which the petitioner shall be entitled for interest @ 9% p.a.on the amount of 50% back wages, to be calculated from the date of demand notice, till the date of actual payment thereof.

Resultantly, the present writ petition stands allowed, in the terms aforementioned, however, with no order as to costs.

23.7.2013 (RAMESHWAR SINGH MALIK) GS JUDGE