Punjab-Haryana High Court
Sanjay Kumar vs M/S Shree Cement Ltd. And Ors on 2 May, 2024
Neutral Citation No:=2024:PHHC:062639
Neutral Citation No:2024:PHHC: 062639
CWP-16709 of 2015 and
CWP-24163-2015 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
218 CWP-16709 of 2015
Sanjay Kumar .... Petitioner
Versus
M/s Shree Cement Ltd. and ors
....Respondents
218-2 CWP-24163-2015
M/s Shree Cements Ltd. .... Petitioner
Versus
Presiding Officer, Industrial Tribunal-cum-Labour Court-I,
Gurgaon and another
....Respondents
Date of Decision: 02.05.2024
CORAM: HON'BLE MR. JUSTICE SANJAY VASHISTH
Present: Mr. Vinit Yadav, Advocate for
Mr. Narender Yadav, Advocate
for the petitioner(s) (in CWP-16709-2015) and
for respondent No.2 (in CWP-24163-2015).
Mr. J.S. Hooda, Advocate
for the petitioner(s) (in CWP-24163-2015) and
for respondent No.1 (in CWP-16709-2015).
*****
SANJAY VASHISTH, J.(Oral)
1. By way of this common order, the fate of the aforesaid
writ petitions shall be decided as both the petitions are arising out of
same award dated 04.02.2015(Annexure P-1).
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CWP-16709 of 2015 and
CWP-16709 of 2015 has filed by Workman-Sanjay
Kumar against the award dated 04.02.2015, where by reference No.
412 of 2010 has been answered against him in entirety.
Another CWP-24163 of 2015 has been filed by the
Management only to challenge the findings, whereby Labour Court
has held that the workman is an employee of petitioner-Management
and the relationship of employee and employer is established.
2. For the sake of brevity, facts are being extracted from
CWP-16709 of 2015.
Petitioner-Sanjay Kumar, has filed the present writ
petition, challenging the award dated 04.02.2015 (Annexure P-1),
whereby, Industrial Tribunal-cum-Labour Court-I, Gurugram, has
answered the reference No. 412 of 2010, under Section 10 (1) (c) of
The Industrial Disputes Act, 1947 (for short, 'the Act of 1947'),
against him.
3. Workman-Sanjay Kumar pleaded that he was engaged in
October,1995 by the respondents-M/s Shree Cement Ltd.
(Management) on the post of "peon" and after registration of a false
criminal case, he remained in police custody from 06.05.2008 to
18.10.2008 and after earning of the acquittal, when he went to rejoin
the duties, he was not allowed to join it. Since, he could not join the
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service on 06.05.2008, respondents terminated his services, which is
in utter violation of Section 25-F of the Act of 1947.
4. In the written statement filed by the respondents-Management,
a categoric stand was taken that in response to the demand notice, in
reply, Management had denied the relationship of employee and
employer between the parties. Further pleaded that once workman has
himself admitted of remaining inside jail from 06.05.2008 to
18.10.2008, such absence cannot be attributed to the employer. For the
purpose of proving the employment with the Management, one
Kapurchand Yadav, appeared as PW-2, who proved his own
appointment letter dated 01.05.2001 by which Shree Cement Ltd, had
appointed him as an Assistant on salary of Rs.4,500/- per month.
There is another document i.e. PW2/2, which is there to establish the
fact that the services of Kapurchand Yadav, Assistant, were confirmed
with effect from 01.01.2002. Some of the invoice vouchers such as
Ex.PW2/3, Ex.PW2/4 for the period July, 1997 and May,.1998
respectively have also been proved on record. Even, Shri Kapurchand
Yadav had appeared as witness and proved the fact that he served
with the Management and also issued a certificate that workman-
Sanjay Kumar Sharma is working with the Management since the
year 1997 as a 'Peon' and his working is satisfactory. The said
document has already been placed on the record as Annexure R2/1
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alongwith the reply filed by the workman in the writ petition filed by
the Management i.e. CWP-24163-2015.
5. From the said writ petition, workman also referred to
another typed document dated 23.07.1999 issued by one S.N. Nyati
and proved on record as Ex.PW1/2. From the said document, learned
counsel for the workman argues that being satisfied with the working
of the workman, he was granted increment by noticing the fact the no
increment has been given to the workman for last two years. For
reference, the said recommendation letter is reproduced herebelow:
"July 23, 1999
Sr. V.P. (Mktg), Th. Sr. Manager,
New Delhi.
Mr. Sanjay Kumar Sharma (Peon) working
at Narnaul from last 4 years. He has not
been given any increment from last two
years. His overall working is satisfactory.
Presently, he is getting Rs.13,00/- P.M. on
voucher payment.
You are requested to pl. give him increment.
Regards,
(S.N. Nyati)."
6. Learned counsel for the workman also refers to the
evidence brought by him to the effect that the Management cannot run
away from its liability by taking a defence that there is no relationship
of employer and employee between the two.
7. After examining the record of both the writ petitions and
the pleadings raised in the writ petitions and the documents appended
therewith, this Court finds that the workman has established a fact
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that he was an employee of the Management. However, he failed to
prove the same by moving an appropriate application for issuance of
directions to the Management to produce its record of the employees
or other relevant record during the period, when the workman had
been serving in the office of the Management. On production of the
record, learned Labour Court could have reached to the correct
conclusion, whether the pleadings raised by the workman are reliable
or not. While observing so, this Court is impressed with the findings
recorded in paragraph No.10 of the award. For the sake of
convenience, same is reproduced herebelow:
"10. At the outset, it is important to refer to the
original certificate Ex.PW-1/1 issued by the
respondents in favour of the workman . The above-
said document clearly shows that the present
workman was employed under the respondents as a
"Peon".Further the statement of witness Kapoor
Chand (PW-2) also proves that the present workman
was an employee of respondent. Thus, the evidence on
record clearly proves that the present workman had
remained employed under the respondents as claimed
by him."
8. This Court is of the view that for seeking protection
under the Act, 1947, apart from the relationship of employer and
employee, petitioner-workman was also required to prove working of
240 days in the preceding one year of his termination. However,
neither there is any evidence to that effect; nor any application has
been moved by him. It appears that the workman was employed as
peon by the Management and therefore, may be because of illiteracy
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or certain other situations, he failed in moving the application. But at
this stage, the Court has no reason to disbelieve the stand taken by the
workman that he worked in the office of Management from the year
1995 to 06.05.2008 i.e. for a long period of about 13 years. Thus, this
Court finds that for reaching to the correct conclusion, one more
opportunity should be afforded to the workman and Management also
to plead its entire evidence before the Labour Court.
9. As far as the custody period of the workman is
concerned, learned counsel for the petitioner argues that such
confinement is beyond his control. Therefore, considering compelling
circumstances, it was obligatory over the Management to take him
back in service on reporting back after acquittal from the criminal
case.
For the said purpose, learned counsel for the petitioner-
workman relies upon the judgment of Hon'ble Supreme Court, titled
as, 'Krushnakant B. Parmar VS. Union of India and another, 2012
(3) SCC 178, Law Finder Doc Id # 344047 and refers to paragraph
No. 18, which reads as under:
"18. Absence from duty without any application or
prior permission may amount to unauthorized
absence, but it does not always means willful.
There may be different eventualities due to which
an employee may abstain from duty, including
compelling circumstances beyond his control like
illness, accident, hospitalization etc, but in such
case the employee cannot be held guilty of failure
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of devotion to duty or behavior unbecoming of a
government servant."
10. Thus, in the totality of the circumstances discussed
hereabove, this Court finds it appropriate to set aside the impugned
award dated 04.02.2015 (Annexure P-1) and remand the case back to
the Labour Court to re-decide the reference No.412 of 2010 in
accordance with law. For re-decision of the issue, both the parties
would be afforded three effective opportunities each without
adjourning the proceedings for unreasonable reason, and it would be
appreciated, if the proceedings would be finally decided in the year
2024 itself.
Let the parties appear before the Labour Court concerned
alongwith the copy of this order on 16.05.2024.
11. With the aforementioned observations, the present writ
petitions stand disposed of.
12. A photocopy of this order be placed on the file of another
connected case.
[SANJAY VASHISTH]
May 02, 2024 JUDGE
rashmi
Whether speaking/reasoned yes/no
Whether reportable? yes/no
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