Punjab-Haryana High Court
Directorate Of Wheat Research vs Shri Ram Pal And Another on 3 April, 2013
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
Civil Writ Petition No.10440 of 2010 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Civil Writ Petition No.10440 of 2010
Date of Decision:03.04.2013
Directorate of Wheat Research, Karnal ...... Petitioner
Versus
Shri Ram Pal and another ...... Respondents
CORAM:- HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
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Present: Mr. R.K. Sharma, Advocate for the petitioner.
Mr. Ram Pal Rana, Advocate for respondent No.1.
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
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RAJIV NARAIN RAINA, J.
The challenge in this petition is to the award dated 18.12.2009 passed by the Presiding Officer, CGIT-cum-Labour Court-I, Chandigarh vide industrial reference No.11/2000. The challenge before the labour Court was to the order of termination dated 1.6.1990. The petitioner was engaged as a casual worker by the Regional Station Indian Agricultural Research Institute, Karnal and had served from 1.7.1987 to 31.5.1990.
The management admitted that the workman was first employed in the Barley project which was transferred to the Wheat Research project. The permanent employees of the Barley project were accommodated in the wheat research project. In the proceedings before the labour Court, the management evidence was closed by order dated 21.10.2008. The management witness who filed his affidavit by way of evidence before the formal closure of the evidence could not obviously step into the witness box to face cross examination by the workman thereafter. Therefore, the affidavit by way of examination-in-chief could not be read in evidence. The labour Court found that the test of 240 days was satisfied. It has been noticed in the award that the workman had moved an application to summon the record including vouchers for the year 1987 to 1999 to Civil Writ Petition No.10440 of 2010 -2- establish his case for reinstatement etc. Learned counsel for the management suffered a statement on 9.11.2006 before closure of evidence that the record required by the workman was not traceable being very old and the same had been destroyed. In this manner, the record produced by the workman was read as secondary evidence. From the record produced by the workman, the test of 240 days according to the Labour Court stood satisfied. The labour Court found that the Barley project was not closed but was transferred under an administrative arrangement of the management. After the notification dated 7.9.1990, the Project Director, Wheat became the administrative head of the Barley project together with its land and infrastructure. In the facts, it could not be said that the Barley project had been closed down.
No possibility of accommodating reinstatement in case ordered. In any case the termination was brought about in breach of Section 25-F of the Industrial Disputes Act, 1947 (for short "the Act"). After appreciating the evidence, the labour Court has returned a finding that the management did not deny that no vacancy is available. Not only did the management fail to adduce any evidence in this case but also did not agitate the closing of its evidence by order in 2008.
Learned counsel for the petitioner relies on the decision of the Supreme Court in Asst. Engineer, Rajasthan Dev. Corp. and another v. Gitam Singh; JT 2013 (2) SC 231 to contend that violation of Section 25-F of the Act would not automatically lead to reinstatement and many factors would have to be considered. The period of service in the present case is from 1.7.1987 to 1.6.1990. This period was certified as worked by the Director Research Institute, Karnal in the certificate issued to the petitioner vide letter dated 29.5.1990. The letter also says that the services of the workman remained satisfactory. The certificate of number of days worked is found at pages 36-37 of the paper book.
I have heard learned counsel for the parties. This is a case where the Civil Writ Petition No.10440 of 2010 -3- evidence of the management was closed by order in 2008. The management took no steps praying for recall of the order. It continued with the proceedings thereafter and was represented by its authorized representative at the time of passing of the final award on 18.12.2009. The respondent having worked for three years had settled industrial rights on him. There was breach of Section 25-F of the Act. The petitioner has not questioned the nature and character of the entry into service by the petitioner. The petitioner being an authority of the State it was expected to keep the record and produce it in its evidence before the labour Court when called upon since it was drawn in protracted litigation that ensued before the Central Administrative Tribunal, Chandigarh and thereafter on its failure before the Labour Court. In the circumstances, to draw adverse inference against the workman, the management failures cannot be used against the workman and this contention of the petitioner deserves to be rejected.
Learned counsel for the respondent-workman has pointed out that against the illegal termination, his client had filed an OA before the Central Administrative Tribunal, Chandigarh in 1990 but the same was dismissed on 15.7.1997 on the ground that industrial rights could not be agitated before the service law Tribunal. It was in this manner that against the 1990 termination, the workman raised a demand notice before the Assistant Labour Commissioner, Rohtak and the management in the year 1997 which came to be referred in 2000. The labour court has awarded reinstatement with 50% back wages.
The question is what is to be done of the period 1990 to 1997 when admittedly the petitioner was pursuing a remedy in a wrong forum. Can the management be saddled with arrears of back wages ordered to cover this period. I think not. It may not be fair and reasonable. Therefore, in order to balance out the equities, 50% back wages ordered by the Labour Court deserve to run from the date of demand notice served in 1997. Accordingly, the period 1990 to 1997 stands blacked out and shall not be counted towards any monetary benefits. Civil Writ Petition No.10440 of 2010 -4- Resultantly, the impugned labour Court award is upheld qua reinstatement as there is no error apparent but stands modified with respect to back wages as indicated above by partly allowing the writ petition. In other words 50% back wages would mean 50% back wages calculated from 1997 onwards. The amount payable be now calculated without interest and paid to the workman within 3 months from the date of receipt of a certified copy of this order.
This petition stands disposed of in the above terms.
( RAJIV NARAIN RAINA ) JUDGE 03.04.2013 rajeev