Punjab-Haryana High Court
Gurbhajan Singh vs Presiding Officer on 2 April, 2013
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
C.W.P. No.6685 of 2000 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
C.W.P. No.6685 of 2000
Date of Decision: April 02, 2013
Gurbhajan Singh
... Petitioner
Versus
Presiding Officer, Labour Court, Patiala
and another
....Respondents
CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL
Present: Mr.Arun Palli, Senior Advocate,
with Mr. Jai Bhagwan, Advocate,
for the petitioner.
Mr. M.S. Joshi, Advocate,
for respondent No.2.
..
SATISH KUMAR MITTAL, J.
The workman has filed this writ petition under Articles 226 and 227 of the Constitution of India for setting aside the Award dated 11.2.2000 (Annexure P-7) passed by the Labour Court, whereby the reference made by the Government on the demand notice raised by the workman, has been decided against the workman being not maintainable on account of giving wrong date of termination.
In the present case, the workman had worked with the Management (The Guru Nanak Truck Operators Union, Sunam) from 15.9.1986 to 30.6.1994 as Munshi. It is the case of the workman that on 1.7.1994 his services were abruptly terminated by the management without issuing any notice or holding any enquiry and even without paying any retrenchment compensation. At that time he was drawing salary of C.W.P. No.6685 of 2000 -2- Rs.1300/- per month. The workman without any loss of time in the month of November, 1994 raised an industrial dispute by serving a demand notice on the management. When re-conciliation failed, the appropriate Government referred the industrial dispute for adjudication to the Labour Court under Section 10(1)(c) of the Industrial Disputes Act, 1947 (hereinafter referred to as `the Act') which reads as under:-
"Whether termination of services of Sh. Gurbhajan Singh workman is justified and in order? If not, to what relief is he entitled?"
Before the Labour Court the workman submitted his claim statement, copy of which has been annexed with the petition as Annexure P1. In the claim statement, it was stated by the workman that his services were wrongly and illegally terminated on 1.7.1994 without any notice or enquiry and even without payment of retrenchment compensation. In reply to the said claim statement, the respondent-management took the stand that the management did not terminate the services of the workman. Rather he himself absented from duty w.e.f. 1.7.1994 without taking any leave. According to the management, the workman had voluntarily left the job. Therefore, the reference was not maintainable.
It is specifically mentioned here that in the reply filed by the management no stand was taken by the management that the services of the workman were terminated on 8.8.1994 or his name was struck-off when he remained absent from duty for seven days. It has been stated that when the workman was asked to reply to a complaint received against him from some employees of the Irrigation Department that he was demanding illegal gratification, he himself left the job and did not join the duty after 1.7.1994. C.W.P. No.6685 of 2000 -3-
On the aforesaid pleadings, the Labour Court framed the following issues:-
"1. Whether the reference is bad in law as alleged?
2. Whether the order of termination of services of the workman is justified and in order?
3. Relief."
Later on, following two additional issues were also framed:-
"1. Whether the applicant is not a workman as stipulated under the I.D. Act, 1947? OPR
2. Whether the respondent is not an `Industry' under the Industrial Disputes Act? OPR"
The Labour Court after taking into consideration the evidence led by the parties, decided the aforesaid two additional issues against the management. It was further held that services of the workman were terminated on 8.8.1994 and not on 1.7.1994 without issuing any notice or without holding any enquiry, and the said termination was held to be illegal. The issue with regard to justifiability of termination of the services of the workman was decided against the management and it was held that services of the workman were not validly terminated on 8.8.1994. In spite of giving the said finding, the Labour Court declined the relief on the ground that the reference was not maintainable on account of wrong date of termination given by the workman. Hence, the petitioner has filed the instant writ petition.
Learned counsel for the workman vehemently argued that the learned Labour Court has grossly erred in law while answering the reference against the workman on the aforesaid ground, particularly when a finding has been recorded that the termination of services of the workman C.W.P. No.6685 of 2000 -4- was absolutely illegal, without holding any enquiry and without paying the retrenchment compensation. The learned counsel argued that the Labour Court while adjudicating the reference sent to it cannot hold the reference being not maintainable when the date of termination pleaded by the workman was not found to be correct or the date of termination given by the management is found to be correct. The learned counsel argued that in the present case the appropriate government did not mention any date of termination in the reference. The dispute referred was `whether the termination of services of the workman was justified or not, if it was not justified, then what relief could have been granted to him.' According to the learned counsel, in the reference it was not mentioned at all whether the termination of the services of the petitioner on 1.7.1994 was justified or not. Therefore, the Labour Court was not justified in declining the reference while holding the reference beyond the scope of adjudication. On facts, the learned counsel argued that the Labour Court has gone beyond the evidence on record while observing that the management has proved on record by documentary evidence that the services of the petitioner were terminated on 8.8.1994. No specific order has been placed on record. According to the learned counsel, even the witnesses examined by the management do not prove these facts. He referred to the statements of three witnesses examined by the management, copies of which have been annexed with the petition as Annexures P-4 to P-6.
On the other hand, learned counsel for the respondent-
management reiterated the stand taken by the management in the written statement and contended that in the facts and circumstances of the case, the reference has rightly been declined by the Labour Court. C.W.P. No.6685 of 2000 -5-
I have heard the learned counsel for the parties and gone through the record of the case. It has not been disputed before this Court or before the Labour Court that the workman had worked from 15.9.1986 to 30.6.1994. It is the case of the workman that on 1.7.1994 his services were terminated without issuing any notice or holding any enquiry or paying any retrenchment compensation. On the other hand, it is the case of the management that the services of the workman were never terminated. Rather, he himself remained absent from duty from 1.7.1994 to 7.8.1994 without any intimation or leave. He himself had left the job. Undisputedly, it is not the case of the management that the services of the workman were terminated on a particular date after holding an enquiry.
After going through the evidence, I found that the management has absolutely failed to establish that the services of the workman were terminated on 8.8.1994 by a specific order after holding the enquiry. MW1- Phauja Singh, who was the Manager of the management/Truck Union, has only stated that he received a complaint against the workman, copy of which was placed on record. In cross-examination, he stated that on the said complaint no enquiry was held against the workman. MW2-Gulshan Kumar, who was the Ex.President of the management/Truck Union has stated that when the workman was asked verbally to give his explanation on the complaint, he did not turn up and absented from duty w.e.f. 1.7.1994 without any intimation or leave. This witness did not state that for the unauthorised absence from duty an enquiry was held against the workman or his services were terminated on 8.8.1994 on that account by the management by passing a specific order. Rather in cross-examination he stated that no enquiry was held into the complaint. He further stated that he C.W.P. No.6685 of 2000 -6- did not bring the attendance register to prove that the workman himself had absented from duty and left the job on his own accord. He further stated that no letter was written to the workman regarding his absence from duty. The third management witness Shri Baljit Singh, who was one of the members of the Truck Union, has stated that the workman remained absent from duty from 1.7.1994 to 7.8.1994 and thereafter his name was struck-off. No specific order with regard to termination of the services of the workman was placed on record. When the said witness was cross-examined by the workman whether he had brought the original record of the photostat copies of the registers Ex.M/2 to M/5 produced by him, he stated that he had not brought the original record of the said documents and it was wrongly stated by him in his examination-in-chief that he had brought the original of the record. Therefore, even the photostat copies which were taken on record were not proved in accordance with law. In cross-examination, the said witness has admitted that he never remained office bearer of the management/Truck Union. In view of these evidence, in my opinion, the Labour Court has recorded a wrong finding of fact that the management had proved on record that the services of the workman were terminated on 8.8.1994 and not on 1.7.1994, and after recording the said finding the Labour Court has wrongly come to the conclusion that the reference made by the appropriate Government is bad on account of giving wrong date of termination.
Even otherwise, it is settled law that the parties cannot be allowed to challenge the very basis of the dispute set out in the order of reference. The pleadings of the parties can be looked into to clarify the points of dispute set out in the order of reference, but cannot be allowed to C.W.P. No.6685 of 2000 -7- alter the terms of reference or the basis of the reference. However, it is always open for the Labour Court to go into the matters incidental to the dispute. In the instant case, from the perusal of the wording of the reference, it is absolutely clear that the entire reference was confined to the issue with regard to the justifiability of the termination of the services of the workman. No dispute was referred to the Labour Court with regard to the date of termination of the services of the workman. In the facts and circumstances of the case, the reference was simple as to whether the termination of the services of the workman was justified or not. Not only the reference was clear but the stand taken by the parties in their pleadings and in their evidence before the Labour Court was also clear. The stand of the workman was that his services were terminated on 1.7.1994 without issuing any notice, holding any enquiry or payment of retrenchment compensation. On the other hand, the stand of the management was also clear that the management did not terminate the services of the workman, but it is the workman who himself had abandoned the job and did not turn up to report for duty. It was not the case of the management that the services of the workman were terminated on 8.8.1994. Therefore, in these facts the Labour Court was not justified while coming to the conclusion that the reference was not maintainable on account of giving wrong date of termination, particularly when a clear finding of fact has been recorded that the alleged termination of the services of the workman was totally illegal, unjustified and against the provisions of the Act. Section 10(4) of the Act provides that 'where the appropriate Government has specified the points of dispute for adjudication, the Labour Court or the Tribunal or the National Tribunal, as the case may be, shall confine its adjudication to those points and matters C.W.P. No.6685 of 2000 -8- incidental thereto.' Thus, it is clear from the said sub-section that it is open for the appropriate Government to refer the dispute or any matter appearing to be connected therewith for adjudication and the Tribunal must confine its adjudication to the points of dispute referred and matters incidental thereto. In other words, the Tribunal is not free to enlarge the scope of the dispute referred to it but must confine its attention to the points specifically mentioned and anything which is incidental thereto.
In the present case, the reference made by the appropriate Government is clear. No point or issue was raised with regard to date of termination. In spite of that clear reference, the Labour Court has committed grave illegality while enlarging the scope of the dispute with regard to the date of termination of services of the workman and then wrongly coming to the conclusion that the services of the workman were terminated on 8.8.1994, and thereafter illegally answering the reference against the workman by dismissing the same on the ground that it was not maintainable on account of wrong date of termination. Thus, in my opinion, the aforesaid conclusion drawn by the Labour Court with regard to maintainability of the reference deserves to be set aside.
In view of the aforesaid, the writ petition is allowed and the impugned award dated 11.2.2000 passed by the Labour Court is set aside. The petitioner/workman is ordered to be reinstated with continuity of service. Keeping in view the fact that the workman had put in about eight years of continuous service, and further that after termination of the services, he immediately raised the industrial dispute, he is ordered to be paid 50% back wages from the date of demand notice. The amount, if any, C.W.P. No.6685 of 2000 -9- paid by the management under Section 17-B of the Act, be adjusted towards the said payment.
April 02, 2013 (SATISH KUMAR MITTAL) vkg JUDGE