Punjab-Haryana High Court
Haryana Agro Industries Corporation ... vs Surender Singh And Another on 20 November, 2013
Author: Rameshwar Singh Malik
Bench: Rameshwar Singh Malik
Saluja Mukesh Kumar
CWP NO.25418 of 2013 and others 1 2013.11.26 10:38
I attest to the accuracy and
integrity of this document
HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT
CHANDIGARH
CWP NO.25418 of 2013
Date of decision:20.11.2013
Haryana Agro Industries Corporation Limited and another
...Petitioner(s)
Versus
Surender Singh and another
...Respondent(s)
CWP No.25419 of 2013
Haryana Agro Industries Corporation Limited and another
...Petitioners
Versus
Sushil Kumar and another
...Respondent(s)
CWP No.25428 of 2013
Haryana Agro Industries Corporation Limited and another
...Petitioners
Versus
Sumit Kumar and another
...Respondent(s)
CWP No.25450 of 2013
Haryana Agro Industries Corporation Limited and another
...Petitioners
Versus
Prem and another
...Respondent(s)
CWP No.25453 of 2013
Haryana Agro Industries Corporation Limited and another
...Petitioners
Versus
Vinod and another
...Respondent(s)
Saluja Mukesh Kumar
CWP NO.25418 of 2013 and others 2 2013.11.26 10:38
I attest to the accuracy and
integrity of this document
CWP No.25459 of 2013
Haryana Agro Industries Corporation Limited and another
...Petitioners
Versus
Sher Singh and another
...Respondent(s)
CWP No.25462 of 2013
Haryana Agro Industries Corporation Limited and another
...Petitioners
Versus
Mahavir and another
...Respondent(s)
CWP No.25468 of 2013
Haryana Agro Industries Corporation Limited and another
...Petitioners
Versus
Lala Ram and another
...Respondent(s)
CORAM: HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK
1. To be referred to the Reporters or not ?
2. Whether the judgment should be reported in the Digest ?
Present: Mr.Pankaj Gupta, Advocate,
for the petitioner(s).
RAMESHWAR SINGH MALIK, J. (Oral)
This order shall dispose of the eight identical writ petitions filed by the management challenging the similar awards passed by the learned Labour Court, directing reinstatement of respondents-workmen but without back wages. However, for the facility of reference,the facts are being culled out from CWP No.25418 of 2013.
Facts first. To unravel the controversy between the parties, a Saluja Mukesh Kumar CWP NO.25418 of 2013 and others 3 2013.11.26 10:38 I attest to the accuracy and integrity of this document brief narration of essential facts would be required. Respondent-workman in each case came to be employed by the petitioner-management as Salesman w.e.f. 1.3.2011. to 1.2.2012 except in one case, i.e. CWP No.25450 of 2013 in which Prem(respondent/workman) worked with the petitioner-management w.e.f. 1.4.2011 to 30.9.2011. The services of all the respondents-workmen were terminated abruptly and in violation of the mandatory provisions of Section 25-F of the Industrial Disputes Act, 1947 (`the I.D. Act' for short). Without wasting any time, respondents-workmen submitted the demand notices on 9.2.2012. It was alleged that petitioner- management glaringly violated the provisions of Sections 25-F, 25-G and 25-H of the Act. Neither notice for one month was issued to the respondents-workmen nor any salary in lieu thereof was paid. No retrenchment compensation was paid to any of the respondents-workmen. Conciliation proceedings failed and the industrial dispute was referred by the appropriate government to the learned Labour Court for its adjudication.
After completion of the pleadings, both the parties led their respective evidence before the learned Labour Court. After discharging their initial onus, respondents-workmen moved an application for summoning the relevant official record. Appropriate orders were passed by the learned Labour Court and the relevant record was produced. After hearing both the parties and careful perusal of the record of the case, the learned Labour Court came to the conclusion that the petitioner- management violated the mandatory provisions of law contained in Section 25-F as well as Section 25-H of the I.D. Act. However, the respondents- workmen could not prove the violation of Section 25-G of the I.D. Act. Recording positive findings on the violation of Sections 25-F and 25-H of Saluja Mukesh Kumar CWP NO.25418 of 2013 and others 4 2013.11.26 10:38 I attest to the accuracy and integrity of this document the I.D. Act, the learned Labour Court came to the conclusion that respondents-workmen were entitled for reinstatement but without back wages. It was so ordered by passing the impugned award dated 4.9.2013 (Annexure P-1). Hence, these writ petitions.
Learned counsel for the petitioner-management submits that the respondents-workmen did not complete 240 days of service and they failed to discharge initial onus, which was on the workmen. Since the respondents-workmen could not prove the completion of 240 days on the date of their alleged termination of service, they were not entitled for the statutory protection under Section 25-F of the I.D. Act. Regarding violation of Section 25-H of the Act, learned counsel for the petitioners submits that since fresh employment was only through the outsourcing agency, respondents-workmen would have no case. It was not the case against the petitioner-management that it employed the fresh hands in place of the respondents-workmen. Since the job was assigned to an independent agency, there was hardly any scope for the learned Labour Court to record a finding on the alleged violation of Section 25-H of the I.D. Act. To buttress his arguments, learned counsel for the petitioners relies upon the judgments of the Hon'ble Supreme Court in Assistant Engineer, Rajasthan Dev.Corpn. and another v. Gitam Singh, 2013 (3) RSJ 731 as well as Secretary, State of Karnataka & others v. Umadevi & others, SLJ 2006 (1) 480. Finally, he prays for setting aside the impugned award by allowing these writ petitions.
Having heard the learned counsel for the petitioners at considerable length, after careful perusal of the record of the case and giving thoughtful consideration to the arguments advanced, this Court is of Saluja Mukesh Kumar CWP NO.25418 of 2013 and others 5 2013.11.26 10:38 I attest to the accuracy and integrity of this document the considered opinion that all these writ petitions are misconceived and bereft of merit because of which no interference is called for at the hands of this Court while exercising its writ jurisdiction under Articles 226/227 of the Constitution of India. To say so, reasons are more than one, which are being recorded hereinafter.
It is matter of record and not in dispute that in each case respondents-workmen worked with the petitioner-management w.e.f. 1.3.2011 to 1.2.2012 except in one case, i.e. CWP No.25450 of 2013. However, it is pertinent to note here that in CWP No.25450 of 2013, Prem- respondent/workman, worked from 1.4.2011 to 30.9.2011. In this case, the learned Labour Court ordered the reinstatement because of violation of Section 25-H of the I.D. Act. After going through the official record placed on the file, learned Labour Court came to the conclusion that respondents- workmen remained in employment of petitioner-management continuously w.e.f. 1.3.2011 to 1.2.2012.
It is also matter of record that industrial dispute was raised by the respondents-workmen without any delay, i.e. on 9.2.2012. It is not the case of the petitioner-management that even any attempt was made to comply with the provisions of Section 25-F of the I.D. Act. Thus, the mandatory provisions of law contained in Section 25-F of the I.D. Act stood glaringly violated at the hands of the petitioner-management. Having said that, this Court feels no hesitation to conclude that the learned Labour Court committed no error of law while passing the impugned award and the same deserves to be upheld.
Similarly, so far as contention raised by the learned counsel for the petitioners to justify the action of the petitioner-management under Saluja Mukesh Kumar CWP NO.25418 of 2013 and others 6 2013.11.26 10:38 I attest to the accuracy and integrity of this document Section 25-H of the I.D. Act is concerned, the same has been found without any merit. Firstly, no relevant record was produced before the learned Labour Court to substantiate the plea that the work was, as a matter of fact, assigned to an outsourcing agency. Secondly, even if it is to be accepted for the sake of argument and not otherwise, still the management will not be absolved from its responsibility and obligation to ensure the meticulous compliance of the mandatory provisions of law contained in Section 25-H of the I.D. Act. In this view of the matter, it is unhesitatingly held that in the given circumstances of the case, discussed here-in-above, mandatory provisions of law contained in Section 25-F and Section 25-H of the I.D. Act have been found to be violated by the petitioner-management. Thus, no fault can be found with the impugned awards passed by the learned Labour Court and the same deserve to be upheld.
Coming to the judgments relied upon by the learned counsel for the petitioners, there is no doubt about the law laid down therein. The judgment of the Hon'ble Supreme Court in Gitam Singh's case (supra), in fact, applies in favour of the respondents-workmen and is of no help to the petitioner-management. It has been held by the Hon'ble Supreme Court in Gitam Singh's case (supra) that the normal rule was that of reinstatement in the cases from dismissal but it was not an absolute rule. In given circumstances of each case, there could be some exceptions.
The relevant observations made by the Hon'ble Supreme Court in para 26 of the judgment, which can be gainfully followed in the present case, read as under:-
"26. From the long line of cases indicated above, it can be said without any fear of contradiction that this Court has not held as Saluja Mukesh Kumar CWP NO.25418 of 2013 and others 7 2013.11.26 10:38 I attest to the accuracy and integrity of this document an absolute proposition that in cases of wrongful dismissal, the dismissed employee is entitled to reinstatement in all situations. It has always been the view of this Court that there could be circumstance(s) in a case which may make it inexpedient 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 host 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."
So far as the judgment in Uma Devi's case (supra) is concerned, the same does not apply to the facts of present case. Firstly, if the appointments were made de hors the rules, still the management cannot draw any benefit out of its own wrong. Similarly, at the time of termination of the services of respondents-workmen, the management cannot be permitted to draw any benefit out of the judgment in Uma Devi's case (supra). If the petitioner management is allowed to commit serious illegality one after the other and then allowed to draw benefit out of its own wrong, it will defeat the very object of the I.D. Act.
Further, it is the settled principle of law that peculiar facts of Saluja Mukesh Kumar CWP NO.25418 of 2013 and others 8 2013.11.26 10:38 I attest to the accuracy and integrity of this document 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.
Reverting back to the facts of the present case and respectfully following the law laid down by the Hon'ble Supreme Court in Gitam Singh's case (supra), it is held that the petitioner-management has glaringly violated the mandatory provisions of law contained in Section 25-F as well as Section 25-H of the I.D. Act. Petitioner-management cannot be permitted to take a somersault and to draw benefit out of its own wrongs committed more than once. Further, neither the law nor the equity is in favour of the petitioner-management. It does not appeal to reason as to why poor workman should be made to suffer for the repeated and serious illegalities committed by the petitioner-management, because that will run counter to the scheme and object of the I.D. Act.
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 the above-said eight writ petitions are misconceived, bereft of merit and without any substance. Thus, these must fail. No case for interference has been made out.
Resultantly, all the eight writ petitions stand dismissed, however, with no order as to costs.
20.11.2013 (RAMESHWAR SINGH MALIK) mks JUDGE