Punjab-Haryana High Court
Chief Administrator vs The Presiding Officer on 30 September, 2013
Author: Rameshwar Singh Malik
Bench: Rameshwar Singh Malik
CWP No.13161 of 1993 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
CWP No.13161 of 1993
Date of Decision : 30.9.2013
Chief Administrator, Haryana Urban Development Authority
and another .....Petitioners
Vs.
The Presiding Officer, Industrial Tribunal-cum-Labour Court,
Gurgaon and another ....Respondents
...
CORAM : HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK ...
Present : Mr. Sikander Bakshi, Advocate for the petitioners.
Mr. J.S. Maanipur, Advocate for respondent no.2.
...
RAMESHWAR SINGH MALIK, J This writ petition, at the instance of the management, is directed against the award dated 16.11.1992 (Annexure P-2) passed by the learned Labour Court, thereby directing reinstatement of the respondent-workman with continuity of service and full back wages.
The facts of the case are hardly in dispute. Petitioner-management engaged the respondent-workman as Beldar with effect from 2.4.1985. Although there was no complaint about the work and conduct of the respondent-workman, yet his services were terminated with effect from 1.8.1987. No notice was issued nor any salary in lieu thereof was paid. No Sahni Greesh 2013.10.25 10:21 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.13161 of 1993 2 retrenchment compensation was paid to the respondent-workman. The industrial dispute was raised by the respondent-workman. Conciliation proceedings failed and consequently, the industrial dispute was referred to the learned Labour Court for its adjudication. Parties led their respective evidence. After hearing both the parties and going through the evidence brought on record, the learned Labour Court came to the conclusion that the petitioner- management illegally terminated the services of the respondent-workman in violation of mandatory provisions of Section 25-F of the Industrial Dispute Act, 1947 (`I.D. Act' for short). Reinstatement with continuity of service and full back wages was ordered, vide impugned award dated 16.11.1992. Hence, this writ petition.
Notice of motion was issued and operation of the impugned award was stayed, subject to the provisions of Section 17-B of the I.D. Act. Thereafter, vide order dated 28.2.1994, the writ petition was admitted for regular hearing. That is how this court is seized of the matter.
Learned counsel for the parties are ad-idem that during the pendency of this petition and in compliance of the order dated 22.10.1993 passed by the Division Bench of this court, the petitioner-management has been complying with the provisions of Section 17-B of the I.D. Act.
Learned counsel for the petitioners submits that the respondent- workman was employed in violation of the provisions of Articles 14 and 16 of the Constitution of India. He further submits that the respondent- workman had been absenting himself from duty. His services were never terminated. He himself abandoned the job. This material aspect of the matter was not appreciated by the learned Labour Court in the right perspective. Finally, he Sahni Greesh 2013.10.25 10:21 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.13161 of 1993 3 prays for setting aside the impugned award by allowing the present writ petition. In support of his contention, he relies upon the judgement of the Hon'ble Supreme Court in Asstt.Engineer, Rajasthan Dev. Corporation and another Vs. Gitam Singh, 2013 (3) RSJ 731.
Per contra, learned counsel for the respondent-workman submits that the respondent-workman was employed as Beldar by the competent authority. He worked to the best of his ability, sincerity and integrity with effect from 2.4.1985 to 1.8.1987, without there being any break in service. He was a willing worker throughout. He never absented himself from duty, as wrongly alleged. He further submits that if the allegations of the petitioner- management about the alleged absence of the workman was to be accepted, then the petitioner-management was under legal obligation to conduct enquiry, which was admittedly not conducted in the present case. He next contended that the mandatory provisions of Sections 25-F, as well as Section 25-H of the I.D. Act were violated in the present case. To substantiate his arguments, learned counsel for the respondent-workman relies upon a judgment of the Hon'ble Supreme Court in Krishan Singh Vs. Executive Engineer, Haryana State Agricultural Marketing Board, Rohtak (Haryana) Civil appeal No.2335 of 2010 decided on 12.3.2010. While concluding, learned counsel for respondent-workman, on instructions from the respondent-workman, who is present in the court, submits that respondent no.2 is ready and willing to forego his back wages, as awarded by the learned Labour Court and the impugned award may be modified to that extent upholding the same qua reinstatement with continuity of service. He prays for dismissal of the writ petition.
Having heard the learned counsel for the parties at considerable Sahni Greesh 2013.10.25 10:21 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.13161 of 1993 4 length, after careful perusal of the record of the case and giving thoughtful consideration to the rival contentions raised, this court is of the considered opinion that in view of the stand taken on behalf of the respondent-workman, the present writ petition deserves to be partly allowed. To say so, reasons are more than one, which are being recorded hereinafter.
It is undisputed on record that the respondent-workman rendered the service with the petitioner-management with effect from 2.4.1985 to 1.8.1987. It is also undisputed that for the alleged absence of respondent no.2, no domestic enquiry was conducted against him. Neither one month notice was issued before termination of his services nor he was paid any salary in lieu thereof. No retrenchment compensation was paid. Having said that, this court feels no hesitation to conclude that the petitioner-management glaringly violated the mandatory provisions of Section 25-F of the I.D. Act, while terminating the services of the respondent-workman. Thus, the impugned award deserves to be upheld to the extent of reinstatement with continuity of service.
Sh. Inder Sen, SDC, who appeared as MW-2 before the learned Labour Court admitted in his cross examination that when the workman approached to report for his duty, he was not allowed to join, because the management had already employed some other person on daily wage basis. This witness has also admitted that the management did not issue any letter to the workman regarding his absence. He further admitted that the workman was not given any benefit. In view of the deposition of MW-2, it was clearly established on record that the petitioner-management violated the provisions of Section 25-F, as well as Section 25-H of the I.D. Act. In this view of the Sahni Greesh 2013.10.25 10:21 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.13161 of 1993 5 matter, it is unhesitatingly held that the learned Labour Court committed no error of law, while passing the impugned award.
So far as the judgement in Gitam Singh's case (supra) relied upon by learned counsel for the petitioner is concerned, the Hon'ble Supreme Court in para 26 thereof has held that normal rule was that a dismissed employee would be entitled to reinstatement in cases of wrongful dismissal, but this normal rule was not without exceptions. Observations made by the Hon'ble Supreme Court in para 26 of the judgement, which can be gainfully followed in the present case, are as under :-
"26. From the long line of cases indicated above, it can be said without any fear of contradiction that this Court has not held as an absolute proposition that in cases of wrongful dismissal, the dismissed employee is entitled to reinstatement in all situations. It has always been the view of this court that there could be circumstance(s) in a case which may make it inexpedient to order reinstatement. Therefore, the normal rule that dismissed employee is entitled to reinstatement in cases of wrongful dismissal has been held to be not without exception. Insofar as wrongful termination of daily rated workers is concerned, this court has laid down that consequential relief would depend on host of factors, namely, manner and method of appointment, nature of employment and length of service. Where the length of engagement as daily wager has not been long, award of reinstatement should not follow and rather compensation should be directed to be paid. A distinction has been drawn between a daily wager and an employee holding Sahni Greesh 2013.10.25 10:21 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.13161 of 1993 6 the regular post for the purposes of consequential relief."
The view taken by this court also finds support from the judgement of the Hon'ble Supreme Court in Krishan Singh's case (supra). The law laid down by the Hon'ble Supreme court in Krishan Singh's case (supra) aptly applies to the facts of the present case and the relevant observations made in para 7 thereof, read as under :-
" In a recent judgement of this court in Harjinder Singh Vs. Punjab State Warehousing Corporation JT 2010(1) SC 598, the Labour Court, Gurdaspur, by its Award directed reinstatement of the workman with 50% back wages, but the Award of the Labour Court was modified by a learned Single Judge of the Punjab and Haryana High Court in the writ petition and this Court has held that the order of the learned Single Judge of the High Court was liable to be set aside only on the ground that while interfering with the Award of the Labour Court, the learned Single Judge did not keep in view the parameters laid down by this Court for exercise of jurisdiction by the High Court under Articles 226 and/or 227 of the Constitution. Learned Brother G.S. Singhvi, J., in his opinion, has observed that while exercising jurisdiction under Articles 226 and/or 227 of the Constitution, the High Courts are duty bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislation's and the same are required to be interpreted keeping in view the goals set out in the preamble of the Constitution and the provisions contained in para IV of the Constitution including Sahni Greesh 2013.10.25 10:21 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.13161 of 1993 7 Articles 38, 39(a) to (e), 43 and 43-A thereof. Learned Brother Ashok Kumar Ganguly, J. agreeing with learned Brother G.S. Singhvi, J., has also observed that this 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."
Further, in almost identical circumstances, this court vide its order dated 7.8.2013 passed in CWP No.13863 of 2013, relying upon numerous judgements of the Hon'ble Supreme Court, held as under :-
"In the present case, the learned counsel for the petitioners failed to point out any peculiar circumstance so as to make the present case as an exceptional one to deviate from the normal rule. Thus, the learned Labour Court has not committed any error of law while passing the impugned award, which deserves to be upheld.
The view taken by this Court also finds support from the judgments of the Hon'ble Court in Pramodh Jha Vs. State of Bihar and others 2003 (4) SCC 619, Anoop Sharma Vs. Executive Engineer, Public Health Division, 2010 (3) SCC 497, Harjinder Singh Vs. Punjab State Warehousing Corporation, 2010 (3) SCC 192, Devinder Singh Vs. M.C.Sanur, 2011 (6) SCC 584 and Assistant Engineer Rajasthan Development Corporation Vs. Gitam Singh, 2013 (5) SCC 136.
The relevant observations made by the Hon'ble Supreme Court in Anoop Sharma's case (supra), which can be Sahni Greesh gainfully followed in the present case, are extracted as under:- 2013.10.25 10:21 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.13161 of 1993 8
"An analysis of the above reproduced provisions shows that no workman employed in any industry who has been in continuous service for not less than one year under an employer can be retrenched by that employer until the conditions enumerated in Clauses (a) and (b) of Section 25-F of the Act are satisfied. In terms of Clause (a), the employer is required to give to the workman one month's notice in writing indicating the reasons for retrenchment or pay him wages in lieu of the notice. Clause (b) casts a duty upon the employer to pay to the workman at the time of retrenchment, compensation equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months. This Court has repeatedly held that Section 25-F(a) and (b) of the Act is mandatory and non-compliance thereof renders the retrenchment of an employee nullity.
xxx xxx xxx This Court has used different expressions for describing the consequence of terminating a workman's service/employment/ engagement by way of retrenchment without complying with the mandate of Section 25-F of the Act. Sometimes it has been termed as ab initio void, sometimes as illegal per se, sometimes as nullity and sometimes as non est. Leaving aside the legal semantics, we have no hesitation to hold that termination of service of an employee by way of retrenchment without complying with the requirement of giving one month's notice or pay in lieu thereof and compensation in terms of Section 25-F(a) and (b) has the effect of rendering the action of the employer as nullity and the employee is entitled to continue in employment as if his service was not terminated.
xxx xxx xxx
15. In State Bank of India v. N. Sundara Money (supra), the Court emphasised that the workman cannot be retrenched without payment, at the time of retrenchment, compensation computed in terms of Section 25-F(b).
16. The legal position has been beautifully summed up in Pramod Sahni Greesh 2013.10.25 10:21 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.13161 of 1993 9 Jha v. State of Bihar (supra) in the following words :
"The underlying object of Section 25-F is twofold. Firstly, a retrenched employee must have one month's time available at his disposal to search for alternate employment, and so, either he should be given one month's notice of the proposed termination or he should be paid wages for the notice period. Secondly, the workman must be paid retrenchment compensation at the time of retrenchment, or before, so that once having been retrenched there should be no need for him to go to his employer demanding retrenchment compensation and the compensation so paid is not only a reward earned for his previous services rendered to the employer but is also a sustenance to the worker for the period which may be spent in searching for another employment. Section 25-F nowhere speaks of the retrenchment compensation being paid or tendered to the worker along with one month's notice; on the contrary, clause (b) expressly provides for the payment of compensation being made at the time of retrenchment and by implication it would be permissible to pay the same before retrenchment. Payment or tender of compensation after the time when the retrenchment has taken effect would vitiate the retrenchment and non-compliance with the mandatory provision which has a beneficial purpose and a public policy behind it would result in nullifying the retrenchment."
In Devinder Singh's case (supra), the Hon'ble Supreme Court in para 13, 19 and 28 of the judgment, observed as under:-
13. "The source of employment, the method of recruitment, the terms and conditions of employment/contract of service, the quantum of wages/pay and the mode of payment are not at all relevant for deciding whether or not a person is a Sahni Greesh workman within the meaning of Section 2(s) of the Act. It is 2013.10.25 10:21 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.13161 of 1993 10 apposite to observe that the definition of workman also does not make any distinction between full-time and part-time employee or a person appointed on contract basis. There is nothing in the plain language of Section 2 (s) from which it can be inferred that only a person employed on a regular basis or a person employed for doing whole-time job is a workman and the one employed on temporary, part-time or contract basis on fixed wages or as a causal employee or for doing duty for fixed hours is not a workman.
xx xx xx
19. Section 25 is couched in negative form. It imposes a restriction on the employer's right to retrench a workman and lays down that no workman employed in any industry who has been in continuous service for not less then one year under an employer shall be retrenched until he has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired or he has been paid wages for the period of notice and he has also been paid, at the time of retrenchment, compensation equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months and notice in the prescribed manner has been served upon the appropriate Government or the authority as may be specified by the appropriate Government by notification in the Official Gazette.
xxx xxx xxx
28. In the result, the appeal is allowed. The impugned order is set aside and the award passed by the Labour Court for reinstatement of the appellant is restored. If the respondent shall reinstate the appellant within a period of four weeks from today, the appellant shall also be entitled to wages for the period between the date of award and the date of actual reinstatement. The respondent shall pay the arrears to the appellant within a period of three months from the date of receipt/production of the copy of this order."
Similarly, in Harjinder Singh's case (supra), the Sahni Greesh 2013.10.25 10:21 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.13161 of 1993 11 Hon'ble Supreme Court made the following observations, which aptly apply in the present case:-
"23. 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 liberalisation are fast becoming the raison d'etre 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 this Court in three decades. The stock plea raised by the public employer in such cases is that the initial employment/engagement of the workman-employee was contrary to some or 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 Sahni Greesh 2013.10.25 10:21 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.13161 of 1993 12 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."
In the judgment of Gitam Singh's case (supra), the Hon'ble Supreme Court again came to the conclusion observing that "therefore, the normal rule that dismissed employee is entitled to reinstatement in cases of wrongful dismissal has been held to be not without exception." Thus, it is now the established principle of law that once the termination of the services of the workman has been found to be illegal and in violation of the mandatory provisions of Section 25-F of the Act, the normal rule is reinstatement with continuity of service."
Reverting back to the facts of the present case and respectfully following the law laid down by the Hon'ble Supreme Court in the cases referred to herein above, it is held that the learned Labour Court has rightly appreciated the factual, as well as legal aspects of the matter, while passing the impugned award. Further, during the course of hearing, learned counsel for the petitioner failed to point out any jurisdictional error or patent illegality apparent on the record of the case, so as to persuade this court to take a different view than the one taken herein above. No prejudice, as such, has been shown to have been caused to the petitioner while passing the impugned award.
Sahni Greesh2013.10.25 10:21 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.13161 of 1993 13
No other argument was raised.
Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this court is of the considered view that in the given fact situation, the present writ petition deserves to be partly allowed.
Consequently, while upholding the award to the extent of reinstatement with continuity of service, the same is modified holding that the respondent-workman shall not be entitled for back wages, as per the stand taken by him, recorded herein above. However, it is made clear that whatever amount has been paid to the respondent-workman by way of compliance of Section 17-B of the I.D. Act, the same shall not be recovered from him. The petitioner-management is directed to reinstate the respondent-workman in service within a period of three months from the date of receipt of a certified copy of this order. He shall be entitled for continuity of service and the consequential benefits arising therefrom.
Resultantly, with the observations made and directions issued as herein above, the instant writ petition is partly allowed to the extent indicated above, however, with no order as to costs.
30.9.2013 (RAMESHWAR SINGH MALIK)
GS JUDGE
Sahni Greesh
2013.10.25 10:21
I attest to the accuracy and
integrity of this document
High Court, Chandigarh