Punjab-Haryana High Court
Uttar Haryana Bijli Vitran Nigam Ltd. ... vs Faquir Chand And Anr on 2 May, 2024
Neutral Citation No:=2024:PHHC:062511
Neutral Citation No:2024:PHHC: 062511
CWP-24372-2017 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
242 CWP-24372-2017
Date of Decision: 02.05.2024
UTTAR HARYANA BIJLI VITRAN NIGAM LTD. AND ANR
.... Petitioners
Versus
FAQUIR CHAND AND ANR
....Respondents
CORAM: HON'BLE MR. JUSTICE SANJAY VASHISTH
Present: Mr. G.S. Madaan, Advocate for the petitioners.
Mr. Neeraj Goel, Advocate
for respondent No.1.
*****
SANJAY VASHISTH, J.(Oral)
1. Petitioners (being Management) has filed the instant writ
petition, challenging the award dated 25.01.2017(Annexure P-2),
passed by learned Industrial Tribunal-cum-Labour Court, Ambala,
whereby reference No.R/45/2016, under Section 10 (1) (c) of the
Industrial Disputes Act, 1947 (for short, 'the Act of 1947'), has been
answered in favour of the workman.
While holding that the termination of the workman is in
violation of Section 25-G, 25-H of the Act of 1947, learned Labour
Court set aside the termination and held the workman entitled for
reinstatement in service with its continuity alongwith 50% back
wages.
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2. Pleaded case of the Workman-Faquir Chand was that he
joined services as Daily Wage Worker on 12.05.1980 under the
administrative control of the petitioners (Management) and
continuously worked till 24.05.1984. Due to the shortage of material
and paucity of work, his services were retrenched illegally and in
gross violation of the mandatory provisions of Section 25-F, 25-G and
25-H of the Act of 1947. Even the employees junior to the workman,
were retained in service, who have now been regularized.
3. On the other hand, the petitioners(Management) in the
written statement filed by them have pleaded that the workman was
appointed as daily wage worker and his services were retrenched vide
retrenchment notice dated 23.04.1984. In the year 1988, when fresh
daily wagers were recruited, an opportunity was given to the
workman-Faquir Chand, to appear for interview, but he could not
clear the same and was not found suitable for the job because of not
possessing ITI Diploma, which was mandatory for being eligible to
work on daily wages basis. Thus, as per Management, it is admitted
position that the workman was there in service from 12.05.1980 to
24.05.1984. Pleading of the workman that the junior employees,
namely, Chhedi Lal, Satish Kumar and Prabhat Kumar, were retained
in the service was confirmed by the Management witness-Smt.
Poonam Rathi, UDC (MW1), posted in the office of XEN (operation)
UHBVN, Ambala, as she admitted the same in her cross-examination.
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Infact, all these workmen were ordered to be reinstated in service,
because of the award pronounced by the Labour Court, Ambala (Mark
'K').
4. In the writ petition filed by the workman-Faquir Chand
before this Court, High Court asked for the seniority list from the
Management, but the defence was taken that the seniority list of the
workmen has already been destroyed due to the flood. Whereas, as a
matter of fact, through the certified copy of the order passed by the
Labour Court, Ambala, said senority list could have been produced.
When the LPA was filed by the workmen, Division Bench of this
Court (Punjab and Haryana High Court) directed to seek the remedy
of reinstatement through the Labour Court. It is thereafter on the basis
of the evidence available on record, Labour Court observed that there
appears to be no dispute that the workman has rendered his services
from 12.05.1980 to 24.05.1984 and thus, the relationship of Employer
and employee is well established and proved.
5. Another noticeable fact from the impugned award is that
as per award dated 27.11.1992 ( Mark 'K), another junior employee,
namely, Prabhat Kumar was reinstated in service after the decision of
the High Court. Thereupon, observations made in paragraph Nos.12
and 13 of the award are required to be referred and the same are
reproduced herebelow:
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"12. In the present case the workman has
worked for more than 240 days with the
respondents and relationship of employer and
employee so proved. In the present scenario the
respondent has terminated the services of the
workman without observing the mandatory
provisions of sections 25-G & 25 H of the Act as
junior persons namely Chhedi Lal, Satish
Kumar and Prabhat Kumar have been retained
by the respondents in service after the
termination of the services of the workman and
have been regularized. For this reliance can be
placed upon the authority in case Harjinder
Singh versus Punjab State SPadousing
Corporation 2010(1) SCT 725 ichas been held
in this ase tha termination was challenged by
claimant u/s 25-F of I.D. Act, 1947 as persons
junior to him were retained in service, workman
reinstated with 50% back wages. It was further
held that Industrial Dispute Act and other
similar legislative instruments are social
welfare legislations and such legislation should
be interpreted in view of the goals set out in
Constitution, which mandate that State should
secure a social order for the promotion of
welfare of the people, ensure equality and also
ensure that the workers get their dues-AIR 1958
SC 923, 1972(2) SCC 108; 2001(1) R.C.R.(civil)
324 (SC) relied upon.
Constitution of India, 1950, Articles 16, 14,
226 and 227 statutes of social welfare court has
a duty to interpret statutes with social welfare
benefits in such a way as to further the statutory
goal and not to frustrate it, court should make
an effort to protect the rights of the weaker
section of the society in view of the clear
constitutional mandate without being mislead by
glitz and glare of globalization.
Moreover, it is settled law that attracting the
applicability of section 25-G of the Act, the
workman is not required to prove that he had
woked for a period of 240 days during twelve
calendar months preceding the termination of
his service and it is sufficient for him to plead
and prove that while effecting retrenchment the
employer violated the rule of last come first Te
vihout any tangible reason.
In Ramon Services (P) Limited versus Subhash
Kapoor 2001(1) R.E.R. Civil) 324: (2001) 1
SCC 118 in which it has been held that after
independence the concept of social justice has
become a part of our legal system. This concept
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gives meaning and significance to the
democratic ways of life and of making the life
dynamic. The concept of welfare state would
remain in oblivion unless social justice is
dispensed. Dispensation of social justice and
achieving the goals set forth in the Constitution
are not possible without the active, concerted
and dynamic efforts made by person concerned
with the justice dispensation system.
In LIC of India versus Consumer
Education and Research Centre and others
1995(4) SCT 678: (1995) 5 SCC 482 in which it
has been held that social justice is a device to
ensure life to be meaningful and livable with
human dignity. The state is obliged to provide to
workmen facilities to reach minimum standard
of health, economic security and civilized living.
The principle laid down by this law requires
courts to ensure that a workman who has not
been found quality cannot be deprived of what
he is entitled to get. Obviously when a workman
has been illegally deprived of his device then
that is misconduct on the part of the employer
and employer cannot possibly be permitted to
deprive a person of what is due to him.
The doctrine of Laissez faire was rejected in
Glaxo Laboratories (India) Limited versus
Presiding Officer (1984) 1 SC 1, in the
following words:-
In the days of laissez-faire when industrial
relation was governed by the harsh weighted
law of hire and fire the management was the
Supreme master, the relationship being referable
to contract between unequal and the action of
the management traded almost sacrosanct. The
developing notions of socidi justice and the
expanding horizon of socio economic justice
necessitated statutory protection to the unequal
partner in the industry namely, those who invest
blood and flesh against those who bring in
capital. Moving from the days when whim of the
employer was suprema fex, the Act took a
modest step to compel by statute to which
employment is given. The Act was enacted as its
long tile shows to require employers in
industrial establishments to define with to make
the said conditions known to workmen employed
by them. The movement was from status to
contract, the contract being not left to be
negotiated by two unequal persons but
statutorily imposed. If this socially beneficial
Act was enacted for ameliorating the condition
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of the weaker partner, conditions of service
prescribed there under must receive such
interpretation as to advance the intendment
underlying the Act and defeat the mischief"
........Of late, there has been a visible shift in
the courts approach in dealing with the cases
involving the interpretation of social welfare
legislations. The attractive mantras of
globalization and liberalization are fast
becoming the raison d'être of the judicial
process and an impression has been created that
the constitutional courts are no longer
sympathetic towards the plight of industrial and
unorganized workers. In large number of cases
like the present one, relief has been denied to
the employees falling in the category of
workmen, who are illegally retrenched from
service by creating by-lanes and side-lanes in
the jurisprudence developed by Court in three
decades. The stock plea raised by he public
employer in such cases is that the initial
employment/engagement of he workman-
employee was contrary to some of the other
statute or that reinstatement of the workman will
put unbearable burden on the financial health of
the establishment. The Courts have readily
accepted such plea unmindful of the
accountability of the wrong doer and indirectly
punished the tiny beneficiary of the wrong
ignoring the fact that he may have continued in
the employment for years together and that
micro wages earned by him may be the only
source of his livelihood. It need no emphasis
that if a man is deprived of his livelihood, he is
deprived of all his fundamental and
constitutional rights and for him the goal of
social and economic justice, equality of status
and of opportunity, the freedoms enshrined in
the constitution remain illusory. Therefore, the
approach of the courts must be compatible with
the constitutional philosophy of which the
Directive Principles of State Policy constitute
an integral part and justice due to the workman
should not be denied by entertaining the
specious and untenable grounds put forward by
the employer public or private".
13. In the catena of aforesaid authorities
given by Hon'ble Supreme Court, the Apex
Court has rejected and negated doctrine of
Laissez faire and theory of hire and fire. In the
present case also the respondents have adopted
theory of hire and fire. Accordingly issue No.1 is
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decided in favour of workman and against the
respondents. "
6. Undoubtedly, the impugned award is primarily based
upon the violation of Section 25-G and 25-H of the Act of 1947 and
there is no answer with the Management as to how it can come out of
the facts which are well established and proved on the record as it is
settled proposition of law that the senior cannot be placed at an
inferior status without any substance, as it may cause a lot of
humiliation to the senior employee. Three of the employees/workmen,
who are discussed in the award are already found to be junior,
therefore, on this score alone, I do not find any illegality in the
impugned award which is otherwise also based on the judicial
pronouncements.
7. Otherwise also, there is another aspect which requires
consideration that the Management has acted totally in arbitrary
manner, which has resulted into the termination of service of the
workman-Faquir Chand, who remained out of service for about 38
years. In the judgment, titled as, 'Jeetubha Khansangji Jadeja Vs.
Kutchh District Panchayat', 2022 (4) S.C.T. 211, Law Finder Doc Id
#2039067, Hon'ble Supreme Court held that where the termination is
not because of any fault of workman and lot of humiliation has been
suffered by him because of being out of service, the Management
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must be made to understand and realize the pain and agony suffered
by the workman.
The relevant paragraph No.14 of the said judgment is
reproduced herebelow:
"14. In the present case, this court finds
no perversity or unreasonableness on the part of
the Labour Court and the single judge in
directing the appellant's reinstatement. Had the
respondent management chosen to accept the
verdict, the appellant would have been spared
the agony of waiting for more than 10 years. In
such circumstances, the denial of back wages,
has resulted in punishing him, although the
delay is attributable to the judicial process.
However, the respondent management cannot
be absolved of the primary responsibility in its
litigative proclivity. In these circumstances, the
appellant shall be entitled to backwages for a
period of two years immediately preceding, i.e.,
from 01.01.2020 to 01.01.2022"
The said judgment has already been followed by this
Court in CWP No.17272 of 2017, titled as 'Hari Chand Vs. Presiding
Officer, Labour Court-I, Faridabad and another'.
8. Therefore, in view of the aforementioned circumstances,
this Court does not feel any necessity to cause any kind of interference
in the relief clause of the impugned award and thus, by maintaining
the same, the writ petition stands dismissed.
[SANJAY VASHISTH]
May 02, 2024 JUDGE
rashmi
Whether speaking/reasoned yes/no
Whether reportable? yes/no
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