Punjab-Haryana High Court
Divisional Forest Officer vs Sh. Balwan And Another on 8 July, 2013
Author: Rameshwar Singh Malik
Bench: Rameshwar Singh Malik
Civil Writ Petition No. 14196 of 2013 & other connected cases 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Writ Petition No. 14196 of 2013
Date of Decision: 08.7.2013
Divisional Forest Officer, Panipat
.....Petitioner.
Versus
Sh. Balwan and another
.....Respondents
2 Civil Writ Petition No. 14192 of 2013
Divisional Forest Officer, Panipat
.....Petitioner.
Versus
Sh. Kuldeep and another
.....Respondents.
3 Civil Writ Petition No. 14264 of 2013
Divisional Forest Officer, Panipat
.....Petitioner.
Versus
Sh. Rajbir and another
.....Respondents.
4 Civil Writ Petition No. 14265 of 2013
Divisional Forest Officer, Panipat
.....Petitioner.
Versus
Dharmveer Singh and another
.....Respondents.
Kumar Amit
2013.08.22 11:06
I attest to the accuracy and
integrity of this document
Civil Writ Petition No. 14196 of 2013 & other connected cases 2
5 Civil Writ Petition No. 14266 of 2013
Divisional Forest Officer, Panipat
.....Petitioner.
Versus
Bhullan and another
.....Respondents.
6 Civil Writ Petition No. 14273 of 2013
Divisional Forest Officer, Panipat
.....Petitioner.
Versus
Om Parkash and another
.....Respondents.
7 Civil Writ Petition No. 14277 of 2013
Divisional Forest Officer, Panipat
.....Petitioner.
Versus
Satpal and another
.....Respondents.
CORAM: HON'BLE MR.JUSTICE RAMESHWAR SINGH MALIK
Present: Mr. Ajay Gulati, DAG, Haryana.
***
1.Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
*** RAMESHWAR SINGH MALIK J.
This batch of seven identical writ petitions has been filed by the Divisional Forest Officer, Panipat, against the similar awards passed by the Industrial Tribunal-cum-Labour Court, Panipat. Since all these seven cases are based on similar facts and common Kumar Amit 2013.08.22 11:06 I attest to the accuracy and integrity of this document Civil Writ Petition No. 14196 of 2013 & other connected cases 3 question of law arises, all these cases are being decided vide this common order. However, for the facility of reference, facts are being culled out from CWP No. 14196 of 2013.
Facts first.
The petitioner Management engaged the respondent workman as daily wager w.e.f. 1.1.1995 and he continued up to 30.9.2004. It was the further pleaded case of the workman that he had been drawing monthwise salary. Although he had completed more than 240 days in most of the years while in service, yet neither one month notice was issued nor any salary in lieu thereof, was paid to him. Retrenchment compensation was also not paid, thereby violating the mandatory provisions of Section 25 (F) of the Industrial Disputes Act, 1947 ('the Act' for short). It was also pleaded that very many juniors of respondent No.1 were retained and many were employed even after his termination. Name of some persons were pointed out and the specific averments taken in this regard were not denied by the petitioner Management. Thus, provisions of Sections 25-H, 25 G and 25 N were also violated.
The industrial dispute having been referred, parties led their respective evidence before the learned Labour Court. The petitioner Management pleaded that the workman did not complete 240 days in the preceding 12 calendar months, because of which Section 25-F of the Act, would not be attracted. The work was seasonal in nature. The workmen were used to be engaged by the Forest Guard, as and when their services were required. There was no violation of any provisions of law including Section 25-F of the Act. Kumar Amit 2013.08.22 11:06 I attest to the accuracy and integrity of this document Civil Writ Petition No. 14196 of 2013 & other connected cases 4 Respondent No.1 filed his replication reiterating the stand taken in his claim statement. Putting the parties to trial, the learned Labour Court framed the following four issues:-
"1. Whether the services of Sh. Balwan have been terminated validly or not if not, whether he is entitled to any relief?
2. Whether the reference is not maintainable as alleged?
3. Whether the department of Forest Govt. of Haryana is not an industry as defined under Section 2 (s) of the ID Act, 1947 as alleged?
4. Relief."
Parties led their respective evidence. The first issue, being the crucial one, was decided against the petitioner Management. Issue No. 2 was not pressed and accordingly, it was decided against the petitioner Management. Onus to prove issue No. 3 was on the petitioner Management, who failed to lead any cogent evidence in this regard, because of which this issue was also decided in favour of respondent No.1 and against the petitioner Management. Reference was answered in favour of the workman, directing his reinstatement with continuity of service and 50% back wages, from the date of demand notice.
Feeling aggrieved against the impugned award dated 28.10.2011, the petitioner Management has approached this Court. That is how, this Court is seized of the matter.
Learned counsel for the petitioner strenuously argued Kumar Amit 2013.08.22 11:06 I attest to the accuracy and integrity of this document Civil Writ Petition No. 14196 of 2013 & other connected cases 5 that since respondent No.1 did not complete 240 days in the preceding 12 calendar months before termination of his services, provisions of Section 25-F of the Act, would not be attracted. The workmen were used to be engaged by the Forest Guard, as and when the work would be available. Since initially the onus was on respondent No.1 to prove that had he completed 240 days in the preceding 12 calendar months and the same was not discharged by him, the impugned award passed by the learned Labour Court was illegal. He next contended that since the work in the petitioner-Forest Department was of seasonal nature, the impugned award of reinstatement with 50% back wages, was not justified in the fact situation of the present case. Although the learned counsel for the petitioner could not deny the material fact of availability of work, after the termination of services of respondent No.1, yet he submitted that provisions of Section 25-H of the Act, would not be attracted in view of the peculiar fact situation of the case.
Learned counsel for the petitioner painstakingly argued that for the sake of argument only and not on merits, even if violation of Section 25-F or 25-H or both was admitted, yet respondent No.1 could have been awarded only the compensation and not reinstatement. He concluded by submitting that even in the cases of violation of Section 25-F of the Act, the powers of the learned Labour Court was only for granting compensation and not the reinstatement. He places reliance on Section 11-A of the Act and submits that since the learned Labour Court has ordered reinstatement with 50% back wages in the present case, instead of awarding compensation in Kumar Amit 2013.08.22 11:06 I attest to the accuracy and integrity of this document Civil Writ Petition No. 14196 of 2013 & other connected cases 6 favour of the respondent workman, the impugned award was liable to be set aside. To substantiate his arguments, learned counsel for the petitioner relies upon a judgment of the Hon'ble Supreme Court in Bharat Sanchar Nigam Limited Vs. Man Singh, (2012) 1 SCC
558. Having heard the learned counsel for the petitioner at considerable length, after careful perusal of record of the case with his able assistance and giving thoughtful consideration to the contentions raised, this Court is of the considered opinion that no interference is warranted at the hands of this Court in these seven writ petitions and the same are liable to be dismissed. To say so, reasons are more than one, which are being recorded hereinafter.
It is the settled proposition of law by now, that initially burden is on the workman to prove or to show prima facie that he had completed 240 days in preceding twelve calendar months and was removed from service in violation of the provisions of Sections 25-B and 25-F. In these cases, it becomes clear from perusal of the record that initial burden was discharged by respondent-workmen in each case. He specifically named his juniors, including one Rajbir in para 5 of his demand notice, Annexure P-1, which was not denied by the petitioner Management in the corresponding para 5 of its reply, Annexure P-2.
Further, the respondent workman appeared as his own witness as WW1 and proved his affidavit as Ex. WW1/A, to the effect that he was engaged by the petitioner Management on 1.1.1995 and he continuously worked till 30.9.2004. His services Kumar Amit 2013.08.22 11:06 I attest to the accuracy and integrity of this document Civil Writ Petition No. 14196 of 2013 & other connected cases 7 were terminated w.e.f. 1.10.2004 without one month notice or salary in lieu thereof as well as without paying retrenchment compensation. He alleged unfair labour practise, because the petitioner Management used to adopt the policy of hire and fire.
Once the initial onus was discharged by respondent No.1 by leading prima facie evidence, onus would shift on the Management to disprove the case of the workman by leading oral as well as documentary evidence. It is so said, because the workman would be handicap in this regard as the entire relevant record would be in the custody of the Management.
Rajesh Kumar, Range Forest Officer, who appeared as MW1 and got his affidavit exhibited as MW1/A, deposed that respondent No.1 was engaged for various forestry operations. He further deposed that in view of the details given in Annexure R-1 (part of Annexure P-1 herein), the workman did not complete 240 days, because of which the provisions of Sections 25-B and 25-F would not be attracted. He also deposed that the workmen used to be engaged by the Forest Guard, as and when the work would be available.
However, no Forest Guard was produced in the witness box, as to whether he was authorised to engage the workmen and he actually engaged them. This witness admitted in his cross examination that work was still available and they used to engage other persons. However, neither the petitioner Management produced any official record to disprove that respondent No.1 had completed 240 days and provisions of Section 25-H were not violated. No reason is forthcoming in this regard. Kumar Amit 2013.08.22 11:06 I attest to the accuracy and integrity of this document Civil Writ Petition No. 14196 of 2013 & other connected cases 8 During the course of arguments, learned counsel for the petitioner could not deny this fact that in view of the Haryana Forest Policy, 2006, the work was available. The State has decided to bring maximum area under the forest cover. Having said that, this Court feels no hesitation to conclude that the learned Labour Court committed no error of law while holding that it was a case of violation of Section 25-H of the Act.
Thus, even if only for the sake of arguments and not otherwise, it is accepted that respondent No.1 did not lead positive and conclusive evidence, so as to establish the violation of Section 25-F, still violation of 25-H is clearly established by the evidence led by the petitioner management itself. Neither the relevant record about continuity and length of service of respondent No.1 was produced before the learned Labour Court, nor the same has been produced before this Court by the petitioner Management, for the reasons best known to it. In this view of the matter, it is unhesitatingly held that the petitioner Management cannot be permitted to draw benefits out of its own wrong.
So far as the judgment in Man Singh's case (supra), relied upon by the learned counsel for the petitioner is concerned, the facts were entirely different. Service of the respondent-workman in that case was terminated due to non availability of work. The workman therein had rendered the service of only about two years and the industrial dispute was raised after five years. Thus, Man Singh's case (supra), being based on its own peculiar facts, has no application in the present case, as the same is clearly distinguishable Kumar Amit 2013.08.22 11:06 I attest to the accuracy and integrity of this document Civil Writ Petition No. 14196 of 2013 & other connected cases 9 on facts.
Further, it is the settled principle of law that peculiar facts of each case are to be examined, considered and appreciated first, before applying any codified or judgemade law thereto. Sometimes difference of one circumstance or additional fact can make the world of difference, as held by the Hon'ble Supreme Court in Padmausundra Rao and another Vs. State of Tamil Nadu and others, 2002 (3) SCC 533.
The argument raised by the learned counsel for the petitioner that even in the cases where violation of mandatory provisions of Sections 25-F and 25-H is established, still the learned Labour Court under Section 11 (A) of the Act, would have the power to grant compensation only and there was hardly any scope of reinstatement with continuity of service and 50% back wages as directed in the present case, appears attracted at the first blush, but on close examination thereof, the same has been found to be fallacious and cannot be accepted. Similarly, claiming the Forest Department not to be an Industry, the petitioner Management failed to lead any evidence.
From the bare reading of the impugned award, it seems that this issue was not pressed by the petitioner management. While deciding issue No. 3 in this regard, the learned Labour Court has rightly referred and relied upon a Division Bench judgment of this Court in State of Haryana VS. Ram Avtar and another, 2005 (3) RSJ 542 (DB), holding the Forest Department to be an Industry. The Kumar Amit learned Labour Court has rightly referred to the Haryana Forest 2013.08.22 11:06 I attest to the accuracy and integrity of this document Civil Writ Petition No. 14196 of 2013 & other connected cases 10 Policy of 2006, which stipulates that forest wood based industry is based on agro forestry plantation and industries should procure the raw material needed by them, to meet their requirements and the wood from forest should not be made available to industry at concessional rates. This would lead to the conclusion that forest department was selling produce at par with market prices. Once this department was found to be fulfilling all basic requirements of industrial establishment, it would certainly fall within the definition of Industry, in view of the vide scope of its definition provided under Section 2-(j) of the Act.
It is neither pleaded nor argued case on behalf of the petitioner that present one was a case covered under Section 2 (oo) (bb) of the Act. Its own witness had admitted in his statement that work was very much available. It has also not been denied that juniors to respondent No.1 were retained in service, including one Rajbir and even after termination of the services of the respondent- workman, more workmen were engaged. In this view of the matter, it is held that termination of the services of respondent No.1-workman, was direct result of unfair labour practice.
The petitioner Management did not produce any relevant record either before the learned Labour Court or before this Court and for this reason only, an adverse inference can be drawn against the petitioner Management. Once the termination of the services of respondent No.1 has been found to be illegal, normal rule would be reinstatement in service and the relief qua grant of back wages can be moulded in view of the given fact situation of each case. Kumar Amit 2013.08.22 11:06 I attest to the accuracy and integrity of this document Civil Writ Petition No. 14196 of 2013 & other connected cases 11 However, even after violation of Section 25 F of the Act, normal rule of reinstatement is not an absolute one. Exceptions would always be there.
The above said view taken by this Court also finds support from the judgment of the Hon'ble Supreme Court in Harjinder Singh Vs. Punjab State Warehousing Corporation, (2010) 3 SCC 192. The relevant observations made by the Hon'ble Supreme Court, which can be gainfully followed in the present case, read as under:-
"The doctrine of laissez faire was again rejected in Glaxo Labotratories (India) Ltd. v. Presiding Officer (1984) 1 SCC 1, in the following words:
"In the days of laissez-faire when industrial relation was governed by the harsh weighted law of hire and fire the management was the supreme master, the relationship being referable to contract between unequals and the action of the management treated almost sacrosanct.
The developing notions of social justice and the expanding horizon of socio- economic justice necessitated statutory protection to the unequal partner in the industry namely, those who invest blood and flesh against those who bring in capital. Moving from the days when whim of the employer was suprema lex, the Act took a modest step to compel by statute the employer to prescribe minimum conditions of service subject to which Kumar Amit 2013.08.22 11:06 I attest to the accuracy and integrity of this document Civil Writ Petition No. 14196 of 2013 & other connected cases 12 employment is given. The Act was enacted as its long title shows to require employers in industrial establishments to define with sufficient precision the conditions of employment under them and to make the said conditions known to workmen employed by them. The movement was from status to contract, the contract being not left to be negotiated by two unequal persons but statutorily imposed. If this socially beneficial Act was enacted for ameliorating the conditions of the weaker partner, conditions of service prescribed thereunder must receive such interpretation as to advance the intendment underlying the Act and defeat the mischief."
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 Kumar Amit 2013.08.22 11:06 I attest to the accuracy and integrity of this document Civil Writ Petition No. 14196 of 2013 & other connected cases 13 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 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.
Respectfully following the law laid down by the Hon'ble Supreme Court as well as giving due regard to the legislative intent behind the object sought to be achieved, in framing this beneficial piece of legislation, in the form of Industrial Disputes Act, 1947 and applying the same to the fact situation of this batch of seven writ petitions, it is held that service of respondent No.1 was illegally Kumar Amit 2013.08.22 11:06 I attest to the accuracy and integrity of this document Civil Writ Petition No. 14196 of 2013 & other connected cases 14 terminated. Further, learned counsel for the petitioner has failed to point out any jurisdictional error or any patent illegality apparent on record in the impugned award, rendered by the learned Labour Court. Thus, no interference is called for at the hands of this Court, while exercising its writ jurisdiction, under Article 226/227 of the Constitution of India.
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 all these seven writ petitions are wholly misconceived, bereft of merit and without any substance. Thus, these must fail. No case for interference has been made out.
Resultantly, all these seven writ petitions are ordered to be dismissed, however, with no order as to costs.
(RAMESHWAR SINGH MALIK) JUDGE 8.7.2013 AK Sharma Kumar Amit 2013.08.22 11:06 I attest to the accuracy and integrity of this document