Punjab-Haryana High Court
Sadhu Ram vs The Presiding Officer And Ors on 25 January, 2024
Neutral Citation No:=2024:PHHC:010977
Neutral Citation No.: 2024:PHHC:010977
CWP-18709-1996 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
207
CWP-18709-1996 (O&M)
Decided on: January 25, 2024
Sadhu Ram
...Petitioner
Versus
Presiding Officer, Labour Court-II, Faridabad and another
...Respondents
CORAM: HON'BLE MR. JUSTICE SANJAY VASHISTH
Present: Mr. J.S. Maanipur, Advocate,
for the petitioner.
Mr. P.C. Goyal, Additional Advocate General, Haryana.
****
SANJAY VASHISTH, J.
CM-13475-2019:
i) This application has been moved by the petitioner-workman for
deciding the main petition, i.e. CWP-18709-1996, in terms of the decision
dated 06.08.2018 (Annexure A-1), passed in CWP No. 14068 of 2015, titled
as "Sumit Kumar v. Presiding Officer, Industrial Tribunal-cum-Labour
Court, U.T. Chandigarh and another". It is further submitted that the said
judgment was upheld in LPA No. 1436 of 2018, by a Division Bench of this
Court (Punjab and Haryana High Court), vide judgment dated 27.11.2018
(Annexure A-2).
ii) Applicability of the aforementioned judgments, is disputed by
learned State counsel by submitting that the facts and circumstances of the
cited case, are entirely different to the case in hand. Thus, learned State
counsel submits that the referred judgments passed by this Court in writ
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petition as well as LPA, are of no consequence, to apply the same in the facts
and circumstances of the present case.
iii) Taking note of the submissions, both the judgments, i.e.
06.08.2018 (Annexure A-1) and 27.11.2018 (Annexure A-2), are taken on
record. However, their applicability to the facts and circumstances of the
writ petition in hand, would be seen at the time of disposal of the case.
Accordingly, civil miscellaneous application stands disposed of.
CWP-18709-1996:
1. Present writ petition has been directed by the petitioner - Sadhu
Ram (hereafter referred to as, 'the workman') impugning the award dated
03.04.1995, passed in Reference No. 665 of 1993, by learned Presiding
Officer, Labour Court-II, Faridabad (hereafter referred to as 'the Labour
Court'), whereby reference referred under Section 10(1)(c) of the Industrial
Disputes Act, 1947 (for short, 'the Act'), has been answered against the
workman by rejecting the claim raised by him in the demand notice.
2. Briefly stated, facts in concern, referred under Section 10(1)(c)
of the Act, are that workman was employed with respondent No. 2, i.e.
Engineer-in-Chief, P.W.D. (B&R) Haryana (Management) as Baildar on
01.02.1983. He served upto 02.03.1993, without any complaint ever against
him, and worked to the satisfaction of the employer. However, w.e.f.
02.03.1993, he was terminated from his service without issuing any show
cause notice, issuing of any charge sheet and holding of any inquiry. It was
pleaded that there was complete violation of the provisions of law, i.e.
Section 25-F of the Act. Thus, workman claimed his reinstatement with
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continuity in service alongwith full back wages.
3. On the other hand, respondent No. 2-Management pleaded that
workman was engaged as casual labourer and his services were utilized
intermittently as and when required by the department. After January 1993,
his services were discontinued as there was no work in the department to be
done by the workman. Workman was advised to go to Rewari, where work
was in progress in another sub-division, but he never joined there. Thus,
plea of the relief claimed by the workman is controverted by the
Management.
4. After framing of issues, Management built up its case before the
Labour Court, by saying that there is no question of granting retrenchment
compensation, as envisaged under Section 25-F of the Act, because the case
falls under Section 2(oo)(bb) of the Act.
5. On the other hand, workman referred the duty period chart (Ex.
M-2) to contend that he rendered his service for a period of 278½ days
continuously during 12 calendar months preceding the date of termination of
his service. The workman and his co-workers had filed CWP No. 2143 of
1989, wherein High Court restrained the respondents from terminating the
services of the workmen during pendency of the writ petition. However,
vide order dated 09.11.1992 (Ex. W-2), said writ petition was withdrawn, to
enable them to approach to the Labour Court. There is an order dated
01.02.1993 (Ex. W-3), passed by the Executive Engineer, Provincial Sub
Division No. 2, Faridabad, which shows that instructions were issued to
respondent No. 2 to strike off the name of the workman and others from
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temporary muster rolls, stating that their services were no more required in
view of letter dated 17.12.1992, issued by the Chief Secretary to
Government of Haryana, immediately after withdrawal of the writ petition
on 09.11.1992. By referring to the said exhibited documents, workman
argued that all this shows that motivated and revengeful orders were passed
by the Administration/Management by terminating the services of the
workman. It is further clarified that in regard to the advise to go and join the
work at Rewari, the Management never issued any such letter. Thus, any
such plea is in air only. As such, the workman claimed his reinstatement with
continuity in service with back wages.
6. In paragraph No. 11 of the award, learned Labour Court
categorically observed that undisputedly the workman had rendered service
for a period of more than 240 days in twelve calendar months, preceding the
date of termination of his services. There is no denial by the Management
that workman was never paid pay for the notice period, and compensation as
envisaged under Section 25-F of the Act, was ever paid.
7. With the aforesaid background, learned Labour Court proceeded
to examine whether the legal plea of applicability of Section 2(oo)(bb) of the
Act, is genuinely available to the Management or not. Respondent No. 2
(Management) relied upon the photocopy of the letter dated 17.12.1992,
issued by the Chief Secretary to Government of Haryana, whereby the
department was instructed to review the actual requirement of daily
wager/casual labourers and then to terminate their services immediately, if
their services were no longer required.
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8. Placing its reliance upon the instructions passed by the Chief
Secretary, in its letter dated 17.12.1992, and subsequent follow up of the
same by concerned offices, learned Labour Court held that termination of
the services of the workman, is legal and justified and the workman is not
entitled to any relief.
9. This Court has considered the plea taken by the workman and
the Management before the Labour Court as well as before this Court. The
record of the writ petition has also been examined.
10. Demand notice issued by the workman, appended as Annexure
P-4 with the writ petition, shows that served the department from 01.02.1983
to 02.02.1993, i.e. complete period of 10 years. In the reply filed to the
demand notice before the Labour and Conciliation Officer, Ballabhgarh
Circle (Annexure P-5), Management took the plea that workman was
appointed as daily wage worker/Baildar. However, there is no specific
denial that for the period of 10 years, as stated in the demand notice,
workman never worked.
11. In the written statement to the claim petition (Annexure P-6),
also there is no denial of the work period of 10 years, devoted by the
workman in the office of the Management, i.e. uptil January 1993, and
thereafter his services were discontinued, as there was no requirement of the
department.
12. Thus, from the said pleaded facts, right from demand notice to
the written statement filed before the Labour Court, it is almost admitted
position that the workman worked with the Management from 01.02.1983 to
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01.02.1993, i.e. for complete period of 10 years. When one official Lakhi
Ram, Sub Divisional Engineer, appeared in the witness box as MW-1, he
stated that the workman was appointed in April 1988 and was taken on daily
wage muster roll. While explaining his working period with Manual's copy
(Ex. M-1), said witness explained the working of the workman as under:-
1988-89 195 days
1989-90 69 days
1990-91 118 days
1991-92 172 days
1992-93 278½ days
13. Said witness also deposed that on completion of work in
January 1993, the workman was directed vide letter dated 02.02.1993 (Ex.
M-3) to go to Sub Division No. 4, Rewari.
14. Surprisingly, at the first instance or at the time of filing of
written statement before the Labour Court, there is no such averment taken
by the Management that the workman was appointed in April 1988 and did
not work since January 1983. How the said witness has taken a new and
different stand while appearing in the witness box, i.e. without explaining
the work done by the workman from February 1983 uptil April 1988. When
the said witness was asked about the muster roll relating to the working of
the workman, he admitted that he has not brought the muster roll relating to
the worker, and without seeing record he cannot tell that at that time how
many workers were working.
15. After deeply examining the facts and circumstances, this Court
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finds that after taking service from the workman in present case and his
other co-workers, after disposal of the writ petition, as same was withdrawn,
immediately thereafter one letter dated 17.12.1992, was issued by the Chief
Secretary, Haryana, for terminating the services of workmen by suggesting
an excuse that "in case their services were no longer required". Obviously,
issuance of the letter by the Chief Secretary is not only for one workman, as
in the present case. In other words, there were other workmen also, who
were working with the Management. Therefore, compliance of the principle
"first come last go", as envisaged in Section 25-G of the Act, is required to
be mandatorily followed, before terminating the services of any of the
workman. In the absence of the same, it would amount violation of the
statutory provision of Section 25-G of the Act. However, there is no finding
given by the Labour Court in its award to that effect.
16. To check the follow up of the principle of 'first come last go',
this Court has gone through the statement of workman - Sadhu Ram
(MW-1), who stated in his examination-in-chief that "My service is
approximately for 10 years. Since my removal, I am unemployed and my
juniors are working. I was removed illegally, and may be taken on duty with
back wages and continuity of service."
In cross-examination done by the management, a fact was stated
by the workman that "When I was removed then there was approximately 60
persons were working and some of them were junior to me."
17. This Court feels that to rule out any arbitrariness or bias, it was
morally, ethically and judiciously expected from the management to produce
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the record alongwith its seniority list to show compliance of the principle of
'first come last go', as enshrined under Section 25-G of the Act.
18. Moreover, the Management cannot run away from its
responsibility, once continuous working of 10 years by workman is admitted
and with one stroke of pen, he has been terminated from service. The
witness appearing on behalf of the Management, namely, Lakhi Ram, S.D.E.
(MW-1), has clearly stated in his deposition before the Labour Court that
there was no requirement of serving of the notice because provisions of the
Act are not applicable. Thus, admittedly there is no compliance of the
provisions of Sections 25-F and 25-G of the Act.
Admittedly, no notice, charge sheet or any inquiry was ever
conducted prior to termination of the services of the workman. Even no pay
for the notice period or any retrenchment compensation has been paid.
Thus, this Court has no hesitation in observing that there is complete
violation of the provisions of Sections 25-F and 25-G of the Act.
19. Not only this, respondent-Management has completely failed in
placing on record any sort of evidence that what kind of time bound project
was being got done through the workmen, when it started and after how
much time the same was accomplished. In the absence of any pleadings,
with other required specifications of the contractual work taken from the
workman, just on saying unilaterally by the Management, it cannot be
termed that the workman was appointed 10 years back, to the date of his
removal from service, and now out-rightly project is over and he is ousted
from service without any such explanation available on record in the form of
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pleading and same being supported. Thus, the defence of Section 2(oo)(bb)
of the Act, would not be available to the Management.
20. Before concluding, this Court has also gone through the
judgements dated 06.08.2018 (Annexure A-1) and 27.11.2018 (Annexure
A-2), placed on record alongwith CM-13475-2019, and cited by the
petitioner/workman, and finds that the same have no applicability to the
facts and circumstances of the present case, inasmuch as, the facts of the
case pleaded in the cited judgements are entirely different and
distinguishable.
21. In view of the findings and reasoning recorded by this Court
hereabove, the impugned award dated 03.04.1995, passed by the Labour
Court, is hereby set aside. Termination of the petitioner-workman is held to
be illegal on two counts i.e. (a) there is total violation of Section 25-F of the
Act; and (b) principle of 'first come last go', as envisaged under Section
25-G of the Act, has not been adhered to by the Management.
22. Now while coming to the issue of reinstatement in service with
continuity and back-wages etc., this Court is informed that as on day, the
petitioner/workman has crossed the age of 60 years, therefore, he would not
be entitled for actual benefit of reinstatement. It is pleaded case of the
workman that he continuously worked with the management from
01.02.1983 to 02.02.1993. He is fighting litigation for the last about three
decades. In these circumstances, and to meet out the ends of justice, this
Court deems it appropriate to grant compensation of Rs.3,00,000/- to be paid
to the petitioner/workman, by the management within three months from
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today, failing which the lumpsum amount of Rs.3,00,000/- shall carry
interest at the rate of 6% per annum, to be calculated from the date of
passing of the award dated 03.04.1995, till its realization. Ordered
accordingly.
23. Writ petition stands allowed in the above terms.
(SANJAY VASHISTH)
JUDGE
January 25, 2024
Pkapoor
Whether speaking/reasoned? Yes/No
Whether reportable? Yes/No
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