Punjab-Haryana High Court
Executive Engineer Public Health ... vs Sanjay Rana And Another on 3 July, 2013
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP No.15278 of 2000
Date of Decision:- 03.07.2013
Executive Engineer Public Health Division No. 1 Panipat.
.....Petitioner
Versus
Sanjay Rana and another .....Respondents
CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
Present:- Mr.Rahul Sharma, Addl. AG Haryana.
Mr. Rajbir Sehrawat, Advocate
for respondent No. 1.
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SATISH KUMAR MITTAL, J (Oral)
The management has filed the instant writ petition under Articles 226/227 of the Constitution of India, for quashing of the award dated 11.1.2000 passed by the Labour Court, Panipat whereby after declaring the termination of services of the workman illegal and void being contrary to the provisions of 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act'), the workman has been ordered to be reinstated with back wages.
I have heard learned counsel for the parties and gone through the impugned award.
In this case the Labour Court on the basis of evidence led by the parties and while relying upon the document i.e. Ex.WW3/1, containing the details of days for which the workman has actually worked with the management, has come to the conclusion that though according to the said evidence the workman has worked only for 234 days but if the Sunday and other holidays are included then the CWP No.15278 of 2000 -2- workman has completed more than 240 days, and he is entitled to protection provided under Section 25-F of the Act. Since, in the present case before making retrenchment the provisions of Section 25-f were not followed, therefore, the termination of the workman was held to be illegal and void, and he was ordered to be reinstated.
When the matter was earlier taken up, it was argued by the counsel for the Management that Sunday and rest days (holidays) cannot be counted to compute 240 days of continuous service in the proceeding one year. On the said contention the matter was referred to the Full Bench and ultimately the full Bench of this Court vide its judgment dated 3.12.2010 held that the daily wager may be entitled to a rest day but unless and until he is paid for the said day, it cannot be counted towards computation of 240 days of continuous service to get benefit under the provisions of Section 25-F of the Act.
Undisputedly, in the present case the workman has worked for 234 days and he has been paid for the same period. He was not paid for any rest days and holidays. In this regard a clear finding has been recorded by Labour Court on the basis of evidence led by the parties. Thus, in view of the aforesaid Full Bench judgment, and the finding recorded by the Labour Court that workman has actually worked for 236 days excluding Sunday and other holidays the award passed by the Labour Court is liable to be set aside. However, learned counsel for the workman while relying upon certain information which were supplied under RTI to one RamPhal has argued that as per the said information the workman had worked for 260 days. The said document was not the CWP No.15278 of 2000 -3- part of the record of the Labour Court and has been procured subsequently by a third person. Learned counsel for the petitioner (Management) argued that this document cannot be taken into consideration as the same was not produced and proved before the Labour Court. In my opinion, at this stage, the aforesaid information/document cannot be entertained. The respondent-workman was given sufficient opportunity before the Labour Court to lead evidence in support of his claim/contention but he did not produce such evidence. Even now in the writ petition here, the respondent has not given any sufficient or cogent reason for not leading such evidence/information before the Labour Court. The management produced the record before the Labour Court i.e. Ex.WW3/1 and proved that workman had only worked for 236 days in proceeding one year. The workman did not put any such question while cross- examining the Management's witness. Now the workman cannot be allowed to take a stand in the written statement that as per the information supplied under the RTI to a third person, he had worked for more than 260 days in proceeding year. In this case the Labour Court has recorded a finding that the workman had worked for 236 days if the Sunday and Holidays are not counted. In view of the Full Bench decision, the Sundays and Holidays cannot be counted if the workman has not been paid for those days.
Thus, in view of the Full Bench Judgment, the finding of the Labour Court that the workman has worked for 234 days and paid for the same, the management was not bound to follow the conditions CWP No.15278 of 2000 -4- laid down u/s 25-f of the Act while retrenching a daily wager. Thus, the award passed by the Labour Court is liable to be set aside. Hence, the writ petition is allowed.
( SATISH KUMAR MITTAL) 03.07.2013 JUDGE reema