Punjab-Haryana High Court
Gurnoop Singh vs Presiding Officer I.Tribunal ... on 5 July, 2024
Neutral Citation No:=2024:PHHC:083592
CWP-22430-2012 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
210
CWP-22430-2012
Decided on : 05.07.2024
Gurnoop Singh
. . . Petitioner(s)
Versus
Presiding Officer (District Judge) Industrial Tribunal,
Jalandhar and another
. . . Respondent(s)
CORAM: HON'BLE MR. JUSTICE SANJAY VASHISTH
PRESENT: Mr. Lalit Rishi, Advocate
for the petitioner(s).
Mr. Varun Katyal, Advocate
for respondent No.2.
****
SANJAY VASHISTH, J. (Oral)
1. Petitioner - Gurnoop Singh, being the workman, has filed the
instant writ petition for seeking quashing of the award dated 27.08.2012
(Annexure P-1), passed by the Industrial Tribunal, Jalandhar (for brevity,
'learned Tribunal'), whereby, Reference No.875/2002, under Section 10(1)
(C) of the Industrial Disputes Act, 1947 (in short, 'Act 1947'), has been
answered partially in favour of the workman (petitioner herein), and partly
declining his claim of reinstatement along with other benefits.
Holding the questioned action of respondent No.2 -
Management (M/s Punjab Police Housing Corporation Ltd., Chandigarh) as
illegal and in violation of Section 25-F of the ID Act, workman has been
awarded with the meagre amount of compensation of Rs.19,000/-.
2. Pleaded case of the petitioner - workman is that he was
appointed on 21.07.1992 as 'Work Munshi' by the Management and the
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workman continuously worked uptill 30.11.1997. His last drawn salary was
Rs.1500/- p.m. Thus, the workman claims that his continuous working from
21.07.1992 to 30.11.1997 i.e. for more than 240 days in the preceding one
year is well proved, and therefore, his termination from service without
issuing any notice or payment of retrenchment compensation etc., is in utter
violation of Section 25-F of the ID Act.
Initially, he was appointed for three months and was continued
in service only after issuing of fresh appointment letter(s). Workman filed
writ petition bearing CWP-6641-1996, before High Court (i.e. Punjab and
Haryana High Court) for regularization of his services, and grant of regular
pay scale, as admissible to the 'Work Munshi'. Management forced the
workman to withdraw said writ petition, and when he refused to withdraw
the same, his services were terminated on 30.11.1997. The writ petition was
dismissed as having been withdrawn on 12.02.1999, with the liberty to avail
remedy under Labour Laws.
Workman also pleaded that apart appointing of other workers,
even juniors to him, were retained in service i.e. Shinder Pal, appointed on
16.09.1995, Gurjant Singh, appointed on 16.09.19995 and Hakam Singh,
appointed on 03.09.1995. Thus, by retaining them in service, Management
violated the provisions of Section 25-G of the ID Act.
3. Workman raised the demand through notice dated 21.09.2001,
but the Government did not refer the dispute for a long period.
Consequently, workman had to file CWP-27732-2002 before the High
Court, and thereupon, direction was issued to decide the said demand notice,
vide order dated 20.05.2002. The Government rejected the demand notice
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and upon being challenged through CWP-12998-2002 before the High
Court, Labour Commissioner Punjab, was directed to decide the reference
within three months. Thus, the industrial dispute was referred on 28.11.2002
for its adjudication.
The claim in the demand notice raised by the workman is that
he be reinstated in service along with continuity and full back-wages and
other consequential benefits. The stand taken by the Management is that the
workman was appointed on 16.07.1992, as 'Work Munshi', for a period of
three months as per the requirement in work in the Management and was
drawing the salary of Rs.1500/- p.m.
Broadly, Management pleaded that workman worked up-till
30.11.1997, on contract work-charge basis only. Thus, the Management
objected the claim of the workman for being reinstated along with continuity
in service and back-wages.
4. After thoroughly examining the evidence and material available
on record before the learned Tribunal, the finding recorded therein is that the
action of termination of the Management/Semi Govt. Corporation, is in
violation of Section 25-F of the ID Act and thus, it being a back door entry
of the workman in service, no direction for reinstatement could be issued.
Therefore, it was concluded that instead of reinstatement and other claims,
the workman was awarded with a compensation amount of Rs.19,000/- only,
despite rendering the service for more than seven years.
5. While taking note of the facts and circumstances of the present
case, this Court is guided with the principle of law discussed by Hon'ble the
Supreme Court in K.V. Anil Mithra and another vs. Sree Sankaracharya
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University of Sanskrit and another, 2022(1) Apex Court Judgments (SC)
85 : Law Finder Doc ID #1901762, wherein, the Hon'ble Apex Court held
in specific that the nature of entry in service is never a pre-condition for
seeking protection of rights of the workman under the ID Act.
6. On applying the same principle here in the present writ petition
also, the relevant findings recorded in CWP-17272-2017, titled as, "Hari
Chand vs. Presiding Officer, Labour Court-I, Faridabad and another",
decided on 02.04.2024, is reproduced as under:-
"4. After considering all the aspects, learned Tribunal
through its award in question made an observation that there is
violation of Section 25-F of the Act 1947, but since the recruitment
of the petitioner is not as per rules, in view of the judgment of
Hon'ble the Apex Court titled as Secretary, State of Karnataka vs.
Uma Devi and others, 2006(4) SCC 1, workman cannot be held
entitled for reinstatement in regular service. However, workman
was held to be entitled for a lump-sum amount of compensation of
Rs.15,000/- payable within a period of three months, from the date
of publication of award and on failure of payment within the
stipulated time, interest @ 9% p.a was to be paid by the
Management.
5. Learned counsel for the petitioner - workman, argues
that the finding given in the award is completely untenable. He
submits that the principle of Uma Devi's case (supra), would not be
applicable, in the present case for two reasons;
(i) As per the written statement filed by the Management, petitioner
was appointed on the post of 'Mali' after adopting the due process
of law i.e. after conducting interview of the petitioner, his name was
recommended by the Committee for appointment on the post of
Mali; and
(ii) that the principle laid down in the judgment of Uma Devi's case
(supra) cannot deny any workman, benefits/protection accruing to
him through the provisions of the Act 1947.
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6. It is admitted position in the present case that the
workman sought his reinstatement on the basis of non-compliance
of Section 25-F of the Act 1947, by the Management, but said
benefit has not been extended only for the reason that granting of
such claim would not be tenable in view of the principle laid down
in Uma Devi's case (supra).
7. While agreeing with the submissions of the counsel for
the petitioner, this Court is guided with the principle of law
discussed by Hon'ble the Supreme Court in K.V. Anil Mithra and
another vs. Sree Sankaracharya University of Sanskrit and
another, 2022(1) Apex Court Judgments (SC) 85 : Law Finder
Doc ID #1901762. The factual aspect in the relied case was that
workman was terminated without following the provision of Section
25-F of the Act 1947. While deciding reference, learned Tribunal
held that the termination is illegal, because there is violation of
Section 25-F of the Act 1947, and therefore, held the termination of
the workman void under the provision of the Act of 1947, and
further directed to treat the workman, as deemed to be in service
with 50% back-wages, till service is validly terminated.
When the said award was assailed before the Hon'ble
Single Bench of High Court of Kerala, without disturbing the
finding of fact recorded by the Tribunal in its award, it held that
each of the workman has completed more than 240 days of service
in the preceding 12 months from the date of termination, and
therefore, services were terminated without observance of Section
25-F of the Act 1947.
However, Hon'ble Single Bench set aside the award
on a premise that if the order of appointment was itself not valid
and not in terms of the procedure prescribed, said irregular
appointments/appointees are not entitled to seek protection of the
Act.
In the Appeal, Hon'ble Division Bench, maintained
the order of learned Single Judge and thus, issue reached before
Hon'ble the Apex Court.
Hon'ble the apex Court converted the case of K.V.
Anil Mithra and another (supra) into a Civil Appeal, to delve into
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the question of law that whether the protection of the Act 1947,
would be available or not to the workmen, who are appointed in
different manner in different circumstances and whether nature of
appointment would be a pre-condition for compliance of Section
25-F of the Act 1947, and also scheme of the Act 1947 or not.
8. While dealing with the same, Hon'ble the Apex Court
dealt with all the different manners in which the
employees/workmen are appointed such as; daily wagers, on casual
basis, part time, ad-hoc, contractual and broadly decided that for
the purpose of deciding the rights of the workman, for which
protection has been provided under the Act 1947, manner/nature of
appointment cannot be treated as a condition precedent. While
dealing with the scheme of the Act, Hon'ble the Apex Court
categorically held that the workman employed even as a daily
wager or in any capacity, once completes 240 days in preceding 12
months from the alleged date of termination, can be terminated
from his services only after compliance of the provision of Section
25-F of the Act 1947. Non-compliance of the provisions would
render the termination void ab-initio.
9. Counsel for the petitioner further argues that that
once, termination is held to be in violation of Section 25-F of the
Act 1947, in all probability, the endeavour of the learned Labour
Court should have been to order for reinstatement of the workman
in service. To substantiate his argument, Counsel for the petitioner
relies on the judgment of Hon'ble the Supreme Court titled as
Jeetubha Khansangji Jadeja vs. Kutchh District Panchayat,
2022(4) S.C.T. 211 : Law Finder Doc ID #2039607, wherein
reinstatement of workman was ordered after a period of 20 years
from the date of his termination from service, along with continuity
in service and back-wages for a period of two years. To reach to
this conclusion, reliance was placed on Hindustan Tin Works (P)
Ltd. v. Employees of M/s Hindustan Tin Works Pvt. Ltd. And
others, (1979) 2 SCC 80, wherein three-judge Bench of the Hon'ble
Apex Court observed that "the relief of reinstatement with
continuity in service can be granted when termination of service is
found to be invalid". Thus, illegal termination of workman would
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mean that right of work of the workman has been taken away by the
employer illegally, in contravention or breach of the contract,
depriving the workman of his earnings.
Further reliance was placed on Bharat Sanchar
Nigam Limited v. Bhurumal, 2014 (7) SCC 177, wherein Hon'ble
the Supreme Court while dealing with a situation that when the
termination of a daily wager was found to be illegal on the ground
that it was a result of unfair labour practice or where the juniors
are regularized and the workman, who is senior, has been
terminated illegally, observed that "the terminated worker should
not be denied reinstatement unless there are some other weighty
reasons for adopting the course of grant of compensation instead of
reinstatement." In such cases, reinstatement should be rule and
only in exceptional cases for the reasons stated to be in writing,
such a relief can be denied.
10. On the other hand, learned State counsel submits that
the workman cannot claim his reinstatement, even if there is clear
violation of Section 25-F of the Act 1947, because, his claim is
barred in view of the Constitutional Bench judgment i.e. Uma
Devi's case (supra).
This submission is not acceptable for the simple
reason that protection of rights of workman under the provisions
and scheme of the Act 1947, was never the part of discussion in the
aforesaid judgment.
11. Broadly, the facts and circumstances in Uma Devi's
case (supra) were entirely different, and a principle of law laid
down by Hon'ble the Apex Court in particular gamut of facts
cannot apply uniformly to all the service cases of the
employees/workmen, whose rights have direct protection under the
Act 1947. Even the object of the enactment of 1947 mandates the
management/establishment to follow the provisions of the Industrial
Disputes Act, 1947, before taking any action against the workman.
12. In the totality of facts and circumstances, this Court is
in complete disagreement with the reasons assigned in the
impugned award. Rather, by following the principle of law laid
down in the aforementioned judgments i.e. K.V. Anil Mithra's case
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(supra) and Jeetubha Khansangji Jadeja's case (supra), this Court
is firm in reaching to the conclusion that once, the services of the
workman have been admitted by the Management, raising of plea of
nature of appointment for denying the protection of the Act 1947 to
the workman, is untenable and unsustainable. Thus, this Court has
no hesitation to hold that the termination of the workman is illegal
and in violation of Section 25-F of the Act 1947.
Another fact that cannot loose sight is that it is the
admitted case of the respondents that the petitioner was appointed
after being interviewed and recommended by the Committee.
However, no material i.e. the rules to be followed by the
Management for the purpose of filling up vacancy of 'Mali', have
not been brought on record.
13. Thus, impugned award dated 03.10.2016 (P-7) is set-
aside/modified and the reference is decided in favour of the
petitioner - workman. Consequently, petitioner - workman is
ordered to be reinstated in service from the date of demand notice
along with 50% back-wages with continuity in service.
Needless to observe that amount of compensation of
Rs.15,000/-, if already paid and received by the petitioner -
workman, shall be returned to the Management along with interest
@ 6% per annum, at the time of his reinstatement in service.
14. Let this direction be complied with within a period of
three months from today i.e. on or before 01.07.2024."
7. Thus, after rendering more than five years of service by the
workman (petitioner), and the observation made thereon by the learned
Tribunal, in regard to the illegal action of termination of his service at the
instance of the Management (respondent No.2), this Court finds that the
relief of reinstatement and continuity in service was not deniable.
8. However, counsel for the petitioner - workman submits that
much time has elapsed since the time of termination of service of the
workman, as he was terminated in November 1997, and therefore, at this
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stage, he would be well satisfied, if his grouse is compensated by awarding
him some reasonable amount of compensation for the losses suffered and the
agony faced by him due to the illegal termination at the instance of the
Management (respondent No.2).
9. Some of the noticeable facts are that at the time of termination
from service in November 1997, the workman (petitioner) was drawing
salary of Rs.1500/- p.m., and that by the time of termination of service, he
had served for more than five years in the office of the Management
(respondent No.2), and that he could have earned a significant salary, had he
continued in job. While hearing the arguments on 01.07.2024, Court was
informed that the workman (petitioner) has already crossed the age of
superannuation and therefore, he gave up his claim of reinstatement in
service and thus, seeks for compensation only.
10. In light of the total period of service, and potential salary
revisions etc., I deem it appropriate to award one time compensation
amount of Rs.3,00,000/- (Rupees Three Lakhs only) towards all the
claims raised by him through the demand notice.
Thus, respondent No.2 - Management is directed to pay lump-
sum amount of compensation of Rs.3,00,000/- to the petitioner - workman,
within a period of three months from today i.e. on or before 04.10.2024.
However, it is clarified that in case, the said amount is not paid within the
stipulated period, the petitioner - workman would be entitled to recover the
same along with interest @ 6% per annum w.e.f. today's order i.e.
05.07.2024, till its realization.
It is also clarified that the total amount compensation amount of
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CWP-22430-2012 - 10 -
Rs.3,00,000/-, is inclusive of Rs.19,000/-, as already awarded by learned
Tribunal vide impugned award dated 27.08.2012 (P-1).
With the aforementioned reasons recorded here-above, the
writ petition is allowed/modified and thus disposed of.
(SANJAY VASHISTH)
JUDGE
July 05, 2024
J.Ram
Whether speaking/reasoned: √ Yes/No
Whether Reportable: √ Yes/No
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