Punjab-Haryana High Court
Punjab National Bank vs Ajit Kumar And Anr on 25 October, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:140244-DB
LPA-65-2017(O&M)
COCP-1507-2017(O&M) -1-
206 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Reserved on : 12.09.2024
Pronounced on : 25.10.2024
1. LPA-65-2017 (O&M)
Punjab National Bank ...Appellant
Vs.
Ajit Kumar and another ...Respondents
2. COCP-1507-2017 (O&M)
Ajit Kumar ...Petitioner
Vs.
Vijay Pal Yadav ...Respondent
CORAM: HON'BLE MR. JUSTICE SHEEL NAGU, CHIEF JUSTICE
HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present : Mr. Saurav Verma, Advocate
for the appellant in LPA-65-2017.
Mr. Mrigank Sharma, Advocate
for respondent No.1 in LPA-65-2017 and
for the petitioner in COCP-1507-2017.
***
ANIL KSHETARPAL, J.
1. Brief facts of the case:-
1.1 With the consent of learned counsel representing the parties, two
connected cases i.e. LPA-65-2017 and COCP-1507-2017, shall stand disposed
of by this common order.
1 of 8
Neutral Citation No:=2024:PHHC:140244-DB
LPA-65-2017(O&M)
COCP-1507-2017(O&M) -2-
1.2 By filing this intra Court appeal, the Punjab National Bank prays
for setting aside learned Single Judge's judgment passed on 04.10.2016, which
in turn has set aside the award passed on 28.03.2011 by the Central
Government Industrial-cum-Labour Court-I, Chandigarh.
1.3 On the application of the respondent-workman, the following
question was referred to the Labour Court for adjudication:-
"Whether the action of the management of Punjab National
Bank, Saha in terminating the services of Sh. Ajit Kumar S/o
Sh. Lali Ram, Ex- part time Sweeper w.e.f. 2.3.2005 without
complying with the provisions of Section 25-F, G & H of the I.D.
Act, 1947 is justified and legal? If not, to what relief the workman
is entitled?"
1.4 The claimant submitted that he was employed on 05.07.2004 as
part time Sweeper in the Bank; whereas, after completion of more than 240
days his services were retrenched on 02.03.2005, without compliance with the
provisions of Section 25-F of the Industrial Disputes Act, 1947. The
appellant/Management contested on the ground that the respondent has not
worked for 240 days and rather he has only worked for the month of February,
2005, for which he was paid Rs. 400/-. It was stated that a new Branch of the
Bank was opened at Saha and the Branch Manager vide communication dated
07.07.2004 informed the Regional Office, Chandigarh about employment of
respondent as part time Sweeper, who is 5th pass. Immediately, the Branch
Manager was informed that as per Bank's laid guidelines, no person who has
studied beyond 4th Class can be engaged as a part time Sweeper in the Bank.
Hence, the respondent was not engaged as a part time Sweeper. In August 2004,
2 of 8
Neutral Citation No:=2024:PHHC:140244-DB
LPA-65-2017(O&M)
COCP-1507-2017(O&M) -3-
new Branch Manager was posted. On 01.02.2005, the respondent came to the
Branch with an application seeking employment while claiming that he has
studied upto 3rd Standard and belongs to Scheduled Caste Category. The Branch
Manager forwarded the respondent's request, which was processed and it was
found that the workman claimed to have studied up to 3rd Grade, but in reality,
he had studied upto 6th Grade. Hence, he was not eligible. During this time, the
respondent worked for the month of February 2005 and he was paid Rs. 400/-
as Labour Charges. Hence, it was claimed that the respondent has not worked
for 240 days during the period of last 12 months before the date of alleged
termination.
1.5 Upon appreciation of evidence, the Labour Court declined to
answer reference in favour of the workman. The writ petition filed by the
workman has been allowed by the learned Single Judge on 04.10.2016, while
drawing inference on the ground that the workman has worked from
05.07.2004 till 05.03.2005.
2. Arguments put forth by the learned counsel representing the
parties:-
2.1 Heard the learned counsel representing the parties at length and
with their able assistance perused the paper-book.
2.2 The appellant's counsel while filing synopsis containing the gist of
his arguments has drawn the attention of the Court to the findings arrived at by
the Labour Court. He submits that the learned Single Judge has erred in
presuming that the workman continued to work from 05.07.2004 till
05.03.2005. He submits that on 01.02.2005, the workman filed an application
3 of 8
Neutral Citation No:=2024:PHHC:140244-DB
LPA-65-2017(O&M)
COCP-1507-2017(O&M) -4-
written in Devnagri (Hindi) claiming that he was unemployed and wants to
work as a part time Sweeper in the Bank. This document is sufficient to prove
that the workman was never in service prior to 01.02.2005. He further
submitted that workman failed to produce any evidence to prove that he was
appointed on 05.07.2004 and he was paid any salary except payment in the
month of February 2005. While contending that the primary onus is on the
workman to prove that he has worked for a period of 240 days, he submits that
in this case the workman has miserably failed to discharge the onus. He also
draws attention of the Court to two different educational certificates dated
10.10.1998 and 27.07.2004 produced by the workman while submitting that the
workman is also guilty of playing foul with Management as he provided two
different educational qualification certificates for getting the job.
2.3 Per contra, the respondent's counsel has supported the finding of
the learned Single Judge and submitted that no interference with the finding of
fact is appropriate. He submits that on 05.07.2004, the Manager had informed
the Regional Manager that he has employed workman as part time Sweeper.
There is no evidence to prove that his services were dispensed with at any point
in time. He submits that the writing stated 02.12.2004 and 05.11.2004 have
been inserted in order to create false evidence.
3. Analysis and Discussion:-
3.1 Having heard learned counsel representing the parties, this Court
now proceeds to analyze the submissions.
I. Discrepancy in Education Qualifications: Conflicting
certificates submitted by respondent:-
4 of 8
Neutral Citation No:=2024:PHHC:140244-DB
LPA-65-2017(O&M)
COCP-1507-2017(O&M) -5-
3.2 It is clear from the facts of the case that when a new Branch at
Saha was opened, the respondent applied for the post of part time Sweeper. The
Branch Manager sought permission from the Zonal Office. It appears from the
reading of the letter that the respondent was allowed to work for some time but
he was not eligible. The Zonal Office immediately informed the Manager,
which resulted in immediate discontinuance. At that time, the respondent
claimed that he has studied upto 6th Class. In August, 2004, new Bank Manager
joined. On 01.02.2005, the workman submitted an application again to the
Bank for employment as a part time Sweeper. This time he claimed that he is
unemployed and has passed only 3rd Class. He supplied School Leaving
Certificate dated 23.07.2005 to the new Bank Manager, who was oblivious of
the fact that the case of the respondent was previously rejected being ineligible
by the competent Authority. He recommended but was turned down on
25.02.2005 by the competent authority on the ground that the workman has
studied upto 6th Class and not 3rd Class. The appellant-Bank admits that the
workman was paid Rs.400/- as Labour Charges for the month of February
2005. In his deposition, the workman stated as under:-
"I joined the bank on 05/07/2004 as sweeper. No
appointment letter was given by the bank. No attendance
was ever marked in the branch of the bank. No Salary was
paid to me on the assurance that on my approval of
appointment entire salary will be paid".
3.3 Thus, it is evident that there is neither any appointment letter nor
any evidence of attendance of the workman. He has categorically stated that he
5 of 8
Neutral Citation No:=2024:PHHC:140244-DB
LPA-65-2017(O&M)
COCP-1507-2017(O&M) -6-
was not paid any salary during all this period. He never filed any representation
complaining non-payment of monthly salary. Keeping in view the aforesaid
facts, the workman failed to discharge onus.
3.4 Moreover, it is evident that the respondent-workman has produced
two certificates to prove his educational qualification. Hence, the Labour Court
came to conclusion that the respondent-workman was trying to secure
employment by using foul means. Learned Single Judge has overlooked this
finding of the Labour Court. While exercising writ jurisdiction, the Court is not
expected to re-examine the matter like an appellate authority but to exercise
jurisdiction of judicial review. In absence of perversity, manifest error or
jurisdictional error, the writ Court is not expected to interfere.
II. Employment Status at the time of Application:-
3.5 Moreover, it is evident that the learned Single Judge has erred in
assuming that the application dated 01.02.2005, is written in English. It was the
categoric stand of the applicant's counsel that application dated 01.02.2005 is
written in Hindi by the workman in his own handwriting. This position was not
controverted by learned counsel representing the workman. In such situation, it
is evident that on 01.02.2005, the workman claimed that he was unemployed
and wanted to work as a part time Sweeper in the Branch. Thus, it is proved
that on 01.02.2005, the respondent was not working. Additionally, the appellant
is nationalized Bank. If the respondent continued to work until July 2004, there
has to be some record of his attendance or payment of salary. The respondent
could have examined any co-employee to prove his continuous employment for
a period of more than 240 days as required.
6 of 8
Neutral Citation No:=2024:PHHC:140244-DB
LPA-65-2017(O&M)
COCP-1507-2017(O&M) -7-
III. Inclusion of weekly offs in 240 days calculation without
evidence of Fixed Monthly Salary:-
3.6 The best case of the workman is that he worked from 05.07.2004
to 02.03.2005. However, while calculating 240 days during the previous 12
calendar months, weekly offs on Sundays have been included. A Full Bench
judgment in "Executing Engineer, Public Health Division No.1, Panipat v.
Sanjay Rana and another", 2014 (2) SCT, 548 decided on 03.12.2010 has
held that in case of a daily wager, Sundays and other holidays are not to be
counted because he is not paid any salary for that day. The workman has only
been paid Rs. 400/- for the work he performed in the month of February. On
the other hand, the Supreme Court in 'Workman of American Express
International Banking Corporation vs. Management of American Express
International Banking Corporation', 1985(4) SCC 71 and in 'Standard
Motor Products of India Ltd. Vs. A. Parthasarathy', 1986(1) LLJ 34 has
held that only the paid holidays are required to be included. This Bench finds
that it will not be appropriate to decide the case on this aspect because there is
lack of evidence. The only material available is the appellant-Bank's admission
that the workman was paid Rs.400/- for the work he performed in the month of
February. There is no evidence to prove that Rs. 400/- was calculated on the
basis of actual working days excluding Sundays. On the other hand, there is
also no evidence to prove that the workman was employed on fixed monthly
salary irrespective of working days. Keeping in view aforesaid facts, this Court
does not find it appropriate to further adjudicate this issue.
7 of 8
Neutral Citation No:=2024:PHHC:140244-DB
LPA-65-2017(O&M)
COCP-1507-2017(O&M) -8-
IV Learned Single Judge's decision purely based on inference:-
3.7 Furthermore, it is evident that the learned Single Judge interfered
with the award in exercise of its power of judicial review. The finding of
learned Single Judge is based upon an inference, which is not at all supported
by the record, particularly, when the application dated 01.02.2005 (MW-4/1),
filed by workman proves that he has claimed to be unemployed while seeking
another chance of employment.
4. Decision:-
4.1 Keeping in view of aforesaid discussion, the judgment of learned
Single Judge is set aside and that of the Labour Court is restored.
4.2 Accordingly, LPA-65-2017 stands allowed.
5. COCP-1507-2017
5.1 In COCP-1507-2017, the workman claims infringement in the
implementation of the judgment passed by the learned Single Judge. The
aforesaid judgment has been reversed, hence, the cause claimed in this petition
ceases to exist.
5.2 Hence, COCP-1507-2017, is disposed of having been rendered
infructuous.
5.3 All the pending miscellaneous applications, if any, are also
disposed of.
(ANIL KSHETARPAL) (SHEEL NAGU)
JUDGE CHIEF JUSTICE
25.10.2024
neeraj Whether speaking/reasoned : Yes No
Whether Reportable : Yes No
8 of 8
