The Chief Medical Officer vs Krishan Lal & Another on 27 March, 2014

[Cites 10, Cited by 1]

Punjab-Haryana High Court

The Chief Medical Officer vs Krishan Lal & Another on 27 March, 2014

1. This order shall dispose of a bunch of 5 writ petitions bearing CWP Nos.6190, 6191, 6208, 6220 & 6252 of 2012, involving common questions of facts and law. However, for dictating the order, the facts have been taken from CWP No.6190 of 2012, titled The Chief Medical Officer, Karnal, Vs. Krishan Lal & another.

2. Challenge in the present writ petition, filed by the Department, is to the award dated 14.06.2011 (Annexure P8), whereby reinstatement has been ordered along with continuity of service and 50% back wages, from the date of the demand notice, i.e., 08.12.2000.

3. A perusal of the paperbook would go on to show that respondent No.2-workman was appointed as Health Assistant (Swasthya Sahayak) against a regular post on 25.02.1993. His services were firstly terminated on 12.07.1994 Sailesh ranjan which he challenged before the Labour Court and an award was rendered in his 2014.03.31 11:58 I attest to the accuracy and integrity of this document CWP No.6190 of 2012 & other connected cases -2- favour on 28.10.1996 (Annexure P2) whereby the termination order of the workman was held to be violative of the provisions of Section 25-F of the Industrial Disputes Act, 1947 (for short, the 'Act') and he was held entitled to the wages, from the date of his termination of service till his reinstatement by the Labour Court, Panipat.

4. The defence in the said proceedings was that the service of the workman had been terminated in view of the direction issued by this Court in CWP No.9631 of 1988 wherein direction had been issued on 09.05.1990 to the Government to frame a policy regarding the Health Assistants and to regulate the service conditions. In pursuance of the said direction, policy dated 07.05.1991 had been framed but the workman was wrongly appointed against a regular post. Accordingly, liberty was granted to the Department to terminate the services of the workman, in accordance with law, if the continuation of service of the workman amounted to violation of the order of this Court. The State was unsuccessful in challenging the said award and the CWP No.16382 of 1997, filed by the Department, was dismissed on 05.11.1997 (Annexure P3). Thereafter, the workman was allowed to join his duty on 28.10.1996 and back wages had been paid to him However, after 4 years, again the services of the workman were terminated on 04.09.2000 which led to raising issuance of the demand notice under Section 2-A of the Act on 08.12.2000 (Annexure P5).

5. On the matter being referred to the Labour Court, the workman averred in his claim statement to the same extent and the defence taken was that since there was a contempt petition, i.e., COCP No.775 of 1993, the services of the workman were terminated, being not in compliance with the policy dated 07.05.1991 and in view of the interim orders, passed by this Court on 13.05.1994. Accordingly, his services were terminated and this Court was informed and the Sailesh ranjan contempt petition was disposed of on 06.12.1994 and resultantly, the termination 2014.03.31 11:58 I attest to the accuracy and integrity of this document CWP No.6190 of 2012 & other connected cases -3- order was challenged. It was submitted that the services were terminated in accordance with the terms of Section 25-F of the Act and an amount of `4412/- had been offered to the workman by way of bank draft alongwith retrenchment on 04.09.2000. However, the workman refused to accept the same. The said orders were sent through speed post, which was received back with the report that he is out of station.

6. Before the Labour Court, the workman examined himself as WW1 and deposed in his favour whereas the Department examined Dr.Om Pal. The Labour Court, after examining the record, came to the conclusion that there was nothing to show that the amount of compensation was offered to the workman on 04.09.2000 and that the termination order as well as the draft was tendered to the workman or not and whether he refused to accept the same. It was the duty of the Management to establish this fact. It was held that the petitioner-Department had sought an opportunity from the High Court to prove this fact in CR No.566 of 2011, in which, an order dated 07.04.2011 was passed. The defence that the appointment was in violation of the policy was rejected on the ground that earlier also, the Labour Court had examined the said issue as to why was action was not immediately taken in the year 1998 and he continued to work till 04.09.2000 and and the act of the Department was mala fide. Accordingly, it was held that proper procedure for retrenchment was not followed and Section 25-F of the Act was violated. Reliance was placed upon the judgment of the Apex Court in Anoop Sharma Vs. Executive Engineer, Public Health Division No.1, Panipat (Haryana) 2010 (3) SCC 497 and reinstatement was directed along with continuity of service and back wages to the tune of 50%, from the date of the demand notice dated 08.12.2000.

7. Counsel for the State has vehemently contended that it was an illegal Sailesh ranjan appointment and in violation of the policy and now, after a period of 11 years, 2014.03.31 11:58 I attest to the accuracy and integrity of this document CWP No.6190 of 2012 & other connected cases -4- reinstatement should not have been directed by the Labour Court.

8. Counsel for the respondent-workman, on the other hand, submitted that it was the second time that the services of the workman were terminated, within a short period of 6 years, the initial termination being in the year 1994 and the second termination in 2000 and therefore, there was victimization and he was liable for reinstatement, having served for 7 years, since the earlier award was also in their favour. It was further contended that the Labour Court had only granted 50% back wages and the interest of the State had also been kept in mind.

9. A perusal of the above facts would go on to show that the stand of the State is that a sum of `4412/- was offered vide a draft dated 02.09.2000 and thus, there was violation of Section 25-F of the Act. A factual finding has, thus, been recorded that the said draft was not tendered on the said date and the State had filed a civil revision petition also, to bring on record evidence that the draft was offered on 04.09.2000 but it failed to prove this fact and rather, there was an admission that the draft was tendered in the Court, for the first time, on 23.01.2002. The finding reads as under:

"There is no evidence in court file that amount of compensation was offered to workman on 4-09-2000 forenoon. There is no evidence that said termination order as well as draft was tendered to workman by hand and workman refused to receive the same. It was duty of respondent to establish that this fact on file by leading cogent evidence which is missing despite opportunity having sought by them from Hon'ble High Court to prove this fact in CR No.566 of 2011.

13. Again, the draft is produced as per directions of Hon'ble High Court in Civil Revision No. 566 of 2011 dated April, 07, 2011 by Sh. Manish Kumar MW-2 by way of Ex MW 2/1 to Ex MW 2/5. This witness did not depose that said draft or termination order was tendered to workman by hand and on refusal send by registered post. Rather there is admission that said draft was tendered in court on 31.1.2002. The examination of order dated 4.09.2000 Sailesh ranjan also reveals that there is nothing proved on record that draft as well 2014.03.31 11:58 I attest to the accuracy and integrity of this document CWP No.6190 of 2012 & other connected cases -5- as notice were given by hand to workman who refused to receive and then same was sent by registered post. Order reveals that services of workman were terminated on 4.09.2000 forenoon."

10. There is no gain saying that even earlier, the Labour Court had passed an award dated 28.10.1996, in favour of the workman on the same set of allegations. The workman was successful in getting reinstated. The State was well aware of the legal implications and could have followed the prescribed procedure under Section 25-F of the Act whereby it had not only to give one month's notice, indicating the reason for retrenchment and to dispense with it by giving the wages for the period of notice under Sub-clause (a) of Section 25. Apart from that, the workman was also to be paid compensation which was to be equivalent to 15 days average pay for every year of continuous service or any part thereof, in excess of six months. The workman had worked from 1993 to 2000 and therefore, for the period of 7 years also, compensation by way of 15 days average pay was to be paid under Sub-clause (b) of Section 25. The salutary purpose of these provisions were noticed by the Apex Court in State Bank of India Vs. Shri N.Sundara Money (1976) 1 SCC 822 and in Pramod Jha Vs. State of Bihar (2003) 4 SCC 619. It was held that the purpose of giving notice before the proposed termination and wages for the notice period is that the workman can search for another employment and the payment of compensation after the time when the retrenchment had taken effect would vitiate the retrenchment and it was mandatory and has a beneficial purpose, in the later case. The observations read as under:

"The underlying object of Section 25-F is twofold. Firstly, a retrenched employee must have one month's time available at his disposal to search for alternate employment, and so, either he should be given one month's notice of the proposed termination or he should be paid wages for the notice period. Secondly, the workman must be paid retrenchment compensation at the time of Sailesh ranjan 2014.03.31 11:58 I attest to the accuracy and retrenchment, or before, so that once having been retrenched there integrity of this document CWP No.6190 of 2012 & other connected cases -6- should be no need for him to go to his employer demanding retrenchment compensation and the compensation so paid is not only a reward earned for his previous services rendered to the employer but is also a sustenance to the worker for the period which may be spent in searching for another employment. Section 25-F nowhere speaks of the retrenchment compensation being paid or tendered to the worker along with one month's notice; on the contrary, clause (b) expressly provides for the payment of compensation being made at the time of retrenchment and by implication it would be permissible to pay the same before retrenchment. Payment or tender of compensation after the time when the retrenchment has taken effect would vitiate the retrenchment and non-compliance with the mandatory provision which has a beneficial purpose and a public policy behind it would result in nullifying the retrenchment."

11. As noticed above, in the present case, the workman has been fighting a losing battle time and again and it would be unfair to accept the argument of the State, at this point of time, that the services could be dispensed with by offering compensation in lieu of reinstatement, merely because of the intervening gap of a decade between the termination and the settlement of the dispute, by the Labour Court. It has been time and again held that once the Court finds that there has been victimization, then reinstatement would be the proper remedy rather than offering compensation to give succour to the aggrieved workman since the fight is all between the Management and the workman and the odds are always in favour of the Management. Reference can be made to the observations of the Apex Court in Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) & others 2013 (10) SCC 324 wherein it has been held as under:

"33. The propositions which can be culled out from the aforementioned judgments are:

i) In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.

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v) The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same.

The Courts must always be kept in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.

vi) In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame.

Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited (supra).

vii) The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal (supra) that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an Sailesh ranjan 2014.03.31 11:58 employee/workman."

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12. Accordingly, this Court is of the opinion that there is no scope for interference in the well reasoned order whereby the factual matrix has been well addressed by the Labour Court. It is settled principle of law that this Court would not interfere in the findings of the Labour Court until there is a patent or a grave illegality, staring in the face of this Court. Accordingly, all the writ petitions are hereby dismissed.


            27.03.2014                                                    (G.S.SANDHAWALIA)
            sailesh                                                             JUDGE




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2014.03.31 11:58
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