Punjab-Haryana High Court
State Of Punjab vs Jaspal Singh And Another on 26 April, 2013
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No. 13742 of 1999
DATE OF DECISION : 26.04.2013
State of Punjab
.... PETITIONER
Versus
Jaspal Singh and another
..... RESPONDENTS
CWP No. 13744 of 1999
DATE OF DECISION : 26.04.2013
State of Punjab
.... PETITIONER
Versus
Amar Nath and another
..... RESPONDENTS
CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
Present: Ms. Ritu Punj, Addl. A.G., Punjab,
for the petitioner
(in both the petitions)
Mr. Vishal Aggarwal, Advocate,
for respondent No.1
(in CWP No. 13742 of 1999)
None for respondent No.1
(in CWP No. 13744 of 1999)
***
SATISH KUMAR MITTAL, J.
1. This judgment shall dispose of Civil Writ Petitions No. 13742 and 13744 of 1999 filed by the State of Punjab through Executive Engineer, CWPs No. 13742 & 13744 of 1999 -2- PWD (B&R) Construction Division, Pathankot (hereinafter referred to as `the management') for setting aside awards dated 12.8.1998 and 3.12.1998, respectively, passed by the Presiding Officer, Labour Court, Gurdaspur, whereby after deciding the references in favour of Jaspal Singh and Amar Nath (hereinafter referred to as `the workmen'), termination of their services was held to be illegal, unjustified and in violation of Section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as `the Act'), and they were ordered to be re-instated with continuity of service and with 50% back wages from the date of their respective demand notices till their reinstatement.
2. The claim of the workmen in both these cases was that they were engaged by the management as daily wage workers and remained under its employment for about 5 years, when their services were illegally terminated in gross violation of the provisions of Section 25-F of the Act. It was further alleged that their juniors were retained in service, and even after the termination of their services, fresh hands were appointed by the management.
3. On issuance of demand notices, the matters were referred by the appropriate Government to the Labour Court to adjudicate the question as to whether termination of the services of the workmen was justified, and if not, what relief could have been granted to them.
4. Before the Labour Court, the workmen took the stand that they CWPs No. 13742 & 13744 of 1999 -3- had continuously worked with the management as daily wage workers for about five years, and in each year of service, they had worked for more than 240 days. It was alleged that while illegally terminating their services, the management neither issued any notice to them nor paid wages for the period of notice, and in gross violation of Section 25-F of the Act, their services were terminated.
5. On the other hand, the stand of the management was that during the last about five years, the workmen were employed for two/three months during the rainy season in each year. Thus, they did not complete 240 days in a calendar year, and such seasonal workers do not fall under the definition of `workman' as defined under Section 2 (s) of the Act. Therefore, they cannot derive the benefit of protection as provided under Section 25-F of the Act.
6. The Labour Court, after considering the evidence led by the parties, came to the conclusion that the management has completely failed to prove that the workmen were employed as seasonal workers on daily wage basis for two/three months in a year. This conclusion was drawn by the Labour Court on the basis that the management did not produce the muster rolls for the relevant years of the workmen, though the same were available with them. Therefore, an adverse inference was drawn against the management, while observing as under in the case of Jaspal Singh : CWPs No. 13742 & 13744 of 1999 -4-
"I have considered the respective contentions of both the parties. I do not find any merit in the submission made by Shri Yash Pal Sahni Extra Assistant Engineer MW-1. It is now well settled law as laid down in a case reported as "Balkishan Versus Presiding Officer, Labour Court, Panipat 1996 (3) S.C.T. 548, that burden of proof is on employer if employer is disputing completion of 240 days of service of the workman. Since no record was produced by employer though it is maintained by the employer. No employer is supposed to pay salary to its workers without maintaining the record. If the muster rolls or attendance register is not produced, the employer is guilty of withholding best evidence and burden of proof is not discharged and objection of employer will not sustain."
No doubt, Shri Yash Pal Sahni, MW-1, stated that he can produce the muster rolls from 1989 to 1994 but he has not taken this trouble to produce the muster rolls for the disputed period of employment for the reasons best known to him. Therefore, his contention that the workman was appointed for seasonal work for 2/3 months in rainy season cannot be accepted. As such the respondent had violated the provisions contained in Section 25-F of the Industrial Disputes Act, 1947, before terminating the services of the workman. His termination has to be declared null and void, arbitrary and ultravires."
Similar conclusion was drawn in the case of Amar Nath.
7. After coming to the aforesaid conclusion, termination of the services of the workman was held to be illegal and he was ordered to be re- instated with continuity of service and with 50% back wages. CWPs No. 13742 & 13744 of 1999 -5-
8. Learned counsel for the management though tried to assail the aforesaid finding, but keeping in view the fact that in spite of availability of the muster rolls, the same were not produced by the management and the issue raised by them, i.e. the workmen being seasonal workers, could have been proved only by producing the muster rolls indicating the employment of the workmen for a particular season, he could not convince this court for setting aside the finding of fact.
9. Faced with this situation, learned counsel for the management argued on the point of relief of reinstatement with 50% back wages granted to the workman. While referring to the recent judgment of the Hon'ble Supreme Court in Asst. Engineer, Rajasthan Dev. Corp. & Anr. Versus Gitam Singh (Civil Appeal No. 8415 of 2009, decided on January 31, 2013), learned counsel has argued that when termination of the services of the workmen was held to be in violation of Section 25-F of the Act and the workmen were employed as daily wager, in that situation, their reinstatement with continuity of service and with 50% back wages is not justified and instead of reinstatement, suitable compensation should be awarded to them.
10. On the other hand, learned counsel for the workmen, while referring to some other judgments of the Hon'ble Supreme Court, argued that in the facts and circumstances of the case, where the workmen had worked for about five years, though on daily wages basis, the Labour Court, CWPs No. 13742 & 13744 of 1999 -6- after coming to the conclusion that termination of their services was totally contrary to the provisions of the Act, in its discretion has ordered for reinstatement of the workmen with continuity of service and 50% back wages, which does not require interference in the writ jurisdiction of this Court.
11, I have heard learned counsel for both the parties and considered their contentions in the light of the various precedents cited by them.
12. It is well settled that normal rule, in cases where dismissal or removal from service is found to be unjustified, is reinstatement. However, in certain cases, where it would not be expedient to follow this normal rule, the Labour Court has the discretion to award compensation. Though no hard and fast rule as to which circumstances would constitute an exception to the general rule has been laid down or could be laid down, as the Tribunal in each case in the light of facts and circumstances of that case keeping in view the spirit of fairness and justice and further keeping in view the objectives of industrial adjudication; and the conflicting claims of the employer on the one hand and of the workman on the other, has to decide whether in that particular case, the reinstatement is to be ordered or a suitable compensation is to be awarded. In some cases, where the office of the employer was comparatively a small one and the dismissed employee held the position of the secretary, a position of confidence and trust, and the CWPs No. 13742 & 13744 of 1999 -7- employer had lost confidence in the concerned employee, reinstatement was held to be not fair to either party and suitable compensation was awarded [see : M/s Ruby General Insurance Co. Ltd. v. Shri P.P. Chopra, (1969) 4 SCC 653]. In some cases, while taking into consideration the factor of discipline in the establishment on the one hand and fairness towards the employee on the other, which is necessary in the interest of both of security of tenure of the employee and of smooth and harmonious working of the establishment, the nature of the alleged misconduct, ordered for payment of suitable compensation, instead of reinstatement [see : The Management of Panitole Tea Estate v. The Workmen (1971) 1 SCC 742]. In some cases, where the worker was engaged as daily-rated worker and whose services were allegedly terminated in violation of Section 25-F of the Act, and tenure of whose service was very short, reinstatement of such worker was held to be not desirable and he was awarded suitable compensation. In this regard, reference can be made to L. Robert D'Souza v. Executive Engineer, Southern Railway and another, (1982) 1 SCC 645. In some cases, where the dispute was raised after a long time, reinstatement was declined. The Hon'ble Supreme Court, in Gitam Singh's case (supra), after considering various judgments, came to the following conclusion :
"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 CWPs No. 13742 & 13744 of 1999 -8- in all situations. It has always been the view of this Court that there could be circumstance(s) in a case which may make in expedient 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 most 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 the regular post for the purposes of consequential relief."
13. In the aforesaid case, the Hon'ble Supreme Court considered its two earlier decisions in Harjinder Singh v. Punjab State Warehousing Corporation, (2010) 3 SCC 192 and Devinder Singh v. Municipal Council, Sangrur, (2011) 6 SCC 584, and thereafter came to the following conclusion :
"29. In our view, Harjinder Singh and Devinder Singh do not lay down the proposition that in all cases of wrongful termination, reinstatement must follow. This Court found in those cases that judicial discretion exercised by the Labour Court was disturbed by the High Court on wrong assumption that the initial employment of the employee was illegal. As noted above, with regard to the wrongful termination of a daily wager, who had worked for a short period, this Court in long CWPs No. 13742 & 13744 of 1999 -9- line of cases has held that the award of reinstatement cannot be said to be proper relief and rather award of compensation in such cases would be in consonance with the demand of justice. Before exercising its judicial discretion, the Labour Court has to keep in view all relevant factors, including the mode and manner of appointment, nature of employment, length of service, the ground on which the termination has been set aside and the delay in raising the industrial dispute before grant of relief in an industrial dispute.
30. We may also refer to a recent decision of this Court in Bharat Sanchar Nigam Limited v. Man Singh. That was a case where the workmen, who were daily wagers during the year 1984-85, were terminated without following Section 25-F. The industrial dispute was raised after five years and although the Labour Court had awarded reinstatement of the workmen which was not interfered by the High Court, this Court set aside the award of reinstatement and ordered payment of compensation. In paragraphs 4 and 5 (pg.559) of the Report this Court held as under:
"4. This Court in a catena of decisions has clearly laid down that although an order of retrenchment passed in violation of Section 25-F of the Industrial Disputes Act may be set aside but an award of reinstatement should not be passed. This Court has distinguished between a daily wager who does not hold a post and a permanent employee.
5. In view of the aforementioned legal position and the fact that the respondent workmen were engaged as "daily wagers" and they had merely worked for more than 240 CWPs No. 13742 & 13744 of 1999 -10- days, in our considered view, relief of reinstatement cannot be said to be justified and instead, monetary compensation would meet the ends of justice."
14. In view of the above legal position, I have examined the facts of both the present cases and the reliefs granted by the Labour Court. In these cases, the workmen had worked for about five years. The period of five years cannot be said to be a short period. Further, the conduct of the management, while filing reply to the claim statements made by the workmen that they were never engaged by the management was not appreciable, as when the witnesses of the management appeared in the witness box, they admitted that the workmen were engaged on daily wage basis, though a stand was taken that they had been engaged for rainy season for two/three months in a year. Further, in order to prove its stand, the management deliberately and consciously withheld the muster rolls. Keeping in view these factors, in my opinion, the present cases do not fall under exception, but fall under the normal rule, and the discretion exercised by the Labour Court while ordering reinstatement of the workmen with continuity of service and 50% back wages, instead of awarding compensation, does not require any interference in the writ jurisdiction of this Court. In the present cases, immediately after the illegal termination, the workers raised industrial disputes, which were referred to the Labour Court. The awards in these cases were passed on 12.8.1998 and 3.12.1998. On CWPs No. 13742 & 13744 of 1999 -11- 28.9.1999, operation of the awards in both the cases was stayed and the workmen were kept out of service, and the management, instead of reinstating the workmen opted to make payment under Section 17-B of the Act. The amount so paid during the pendency of these writ petitions will be adjusted towards the payment of back wages. Thus, in the facts and circumstances of these cases, I do not find any ground to interfere in the order of reinstatement with continuity of service and 50% back wages, and do not see any reason and justification for awarding compensation instead of ordering reinstatement.
15. Dismissed.
April 26, 2013 ( SATISH KUMAR MITTAL ) ndj JUDGE