Punjab-Haryana High Court
Central Institute For Research On ... vs Ishwar Singh And Another on 22 October, 2013
Author: Rajive Bhalla
Bench: Rajive Bhalla
L.P.A. No.253 of 2013 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
(1)
L.P.A. No.253 of 2013 (O&M).
Decided on:-October 22, 2013.
Central Institute For Research on Buffaloes, Hisar. .........Appellant.
Versus
Ishwar Singh and another. .........Respondents.
CORAM: Hon'ble Mr. Justice Rajive Bhalla
Hon'ble Mr. Justice Dr. Bharat Bhushan Parsoon.
*****
Argued by:- Mr. Raj Kumar Sharma, Advocate for the appellant.
Mr. Surinder Sharma, Advocate for the respondents.
(2)L.P.A. No.287 of 2013 (O&M).
Decided on:-October 22, 2013.
Ishwar Singh. .........Appellant.
Versus
The Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court-I, Chandigarh and another .........Respondents.
CORAM: Hon'ble Mr. Justice Rajive Bhalla Hon'ble Mr. Justice Dr. Bharat Bhushan Parsoon.
***** Argued by:- Mr. Surinder Sharma, Advocate for the appellant.
Mr. Raj Kumar Sharma, Advocate for respondent No.2.
Yag Dutt 2013.11.13 13:54 I attest to the accuracy and integrity of this document L.P.A. No.253 of 2013 -2-Dr. Bharat Bhushan Parsoon, J Both these Letters Patent Appeals arising out of adjudication of Civil Writ Petitions No.9204 and 12300 of 2010 vide judgment dated 12.3.2012 passed by Hon'ble Single Bench of this Court are being taken up together as these are inter-connected.
2. LPA No.253 of 2013 has been filed by the appellant i.e. Central Institute For Research on Buffaloes, Hisar (hereinafter referred to as, the Management) whereas LPA No.287 of 2013 is preferred by Ishwar Singh (hereinafter referred to as, the workman). The Management seeks setting aside of the impugned judgment dated 12.3.2012 whereby the workman has sought modification therein seeking back wages in addition to his reinstatement already ordered.
3. Put in a narrow compass, facts so far as necessary for decision of these appeals, are as below:
The workman, an Ex-serviceman having 16 years of service in Indian Army to his credit, came on the rolls of the Management on 6.9.1988. However, his services were terminated on 22.10.1992. He had challenged his termination order in a civil court. Having won the litigation and possessed with order of reinstatement in service, on 17.11.1989 he came to join the Management but he was not permitted to work. He had been moving from pillar to post to secure his employment with the Management but to no avail. Even when he moved the authorities seeking his employment back with the Management, none helped him. He was constantly refused permission to work by the Management. Such applications were moved by him every now and then and latest was moved on 6.11.1992. It had also brought no fruits.
Having been distressed and facing deprivation, the workman gave legal notices on 25.11.1992 and 12.3.1993 seeking reinstatement into Yag Dutt 2013.11.13 13:54 I attest to the accuracy and integrity of this document L.P.A. No.253 of 2013 -3- service with consequential benefits. With his initiative, Government of India referred the industrial dispute raised by him for adjudication to the Industrial Tribunal-cum-Labour Court (hereinafter referred to as, the Tribunal). Vide notification dated 16.11.1994, following dispute was referred to the Tribunal:
"Whether the action of the management of Central Institute of Research on Buffaloes, Hisar in termination the services of Sh. Ishwar Singh, Ex.Chowkidar w.e.f. 22.10.1992 is just, fair and legal? If not, to what relief the workman concerned is entitled and from which date?"
Tough stand taken by the Management against demand of the workman resulted in long drawn proceedings before the Tribunal. Stand of the Management that the workman was not specifically appointed as Chowkidar-cum-Security Guard but, in fact, had been appointed merely as Group-D employee and that he had refused to perform the work entrusted to him and then had left the place of work himself, thus voluntarily surrendering his services, did not find favour with the Tribunal, which after evaluating evidence produced by the parties and appreciating their rival claim, ordered reinstatement of the workman into service but denied him back wages though his seniority and pay was protected.
The petition preferred by the Management for quashing of Award dated 24.11.2009 (Annexure P-8) and petition preferred by the workman for full back wages, were both dismissed.
4. Consistent stand of the Management is that the workman was only a daily wager who was working on muster roll and that he had worked intermittently from 1988 to 1992. It is averred that since he was a casual labourer, he could be deputed anywhere to work but when was asked to perform some specific duties by the Farm Manager, he refused to do so on the pretext that he was to perform only security duty. It is claimed that the workman did not perform the duties assigned to him and never came back to Yag Dutt 2013.11.13 13:54 I attest to the accuracy and integrity of this document L.P.A. No.253 of 2013 -4- work. It is averred that when despite issuance of notices, the workman did not come to work, his services were terminated on 22.10.1992. Referring to his statement of claim of 1.1.1996, it is canvassed by the Management that there is admission of the workman that he was engaged by verbal orders and had also admitted service of termination order. It is urged that the Tribunal did not appreciate these facts and passed Award on 24.11.2009 in an illegal manner. It is claimed that the impugned judgment dated 12.3.2012 of this Court is also unsustainable in the eyes of law as it has ignored the fact that the Management had been making efforts to bring back the workman to work but he had not joined his duties. It is claimed that if the workman had any grievances, he could represent after joining but was not supposed to remain absent from duties.
5. Stand of the workman, on the other hand, is that since he had been out of job throughout, his reinstatement ordered by the Tribunal with seniority and protection of pay, should have been with back wages. It is urged that even if full back wages were not to be allowed at least, he was to be granted at least 50% back wages. Thus, the workman seeks modification of the Award.
6. We have heard counsel for the parties while going through the paper books.
7. There is categorical finding of the Tribunal that the workman had been working with the Management as Security Guard-cum-Chowkidar since 6.9.1988. He had 16 years of Army service to his credit before joining the Management. Making reference to a policy decision regarding recruitment of casual workers and daily wagers by the Ministry of Personnel/Grievances of Pensions (Department of Personnel and Training) contained in Circular letter dated 7.6.1988, the Tribunal came to the conclusion that there was merit in the claim of the workman.
8. By now, there is no dispute that the workman had completed Yag Dutt 2013.11.13 13:54 I attest to the accuracy and integrity of this document L.P.A. No.253 of 2013 -5- 240 days in a year preceding the date of his retrenchment. He was thus entitled to protection of Section 25(F) of the Industrial Disputes Act, 1947. When oral as well as documentary evidence was appreciated by the Tribunal, it found that name of the workman was at serial No.20 as Chowkidar in Forage Production Section. He was in DPL category as Chowkidar. The Tribunal noticed with concern that when the workman had been approved on 5.8.1991 for DPL as Chowkidar in Forage Production Section, why denying him the work assigned to him, any other job was being given to him. Findings of the Tribunal in this context are as below:
"Without disputing the nature of appointment, the workman was working as a chowkidar after 5.8.1991, when he was approved for DPL as chowkidar by the management of respondent. Thus, there is no force in the contention of the management that workman was group-D employee after 5.8.1991 and any work of group-D employee can be entrusted to him. After 5.8.1991 the workman could have entrusted the work of chowkidar only and not otherwise."
9. Evaluating the entire set of facts and circumstances, the Tribunal had come to a firm finding that termination of the workman was illegal and void. Relevant findings in the Award are to the following effect:
"Admittedly, no notice, one month wages in lieu of the notice and terminal dues were given/paid to the workman before termination of his services which renders his termination illegal and void being against the provisions of the Act. The Industrial Disputes Act does not bar the termination of the services of a daily waged worker but only regulates it. The services of a daily wages worker can be terminated as per the provisions of the Act, after giving one month notice or one month wages in lieu of the notice and lawful termination. It was not done by the management which makes the termination of the workman void and illegal."
10. Examining and evaluating options of reinstatement and compensation, the Tribunal had ordered reinstatement of the workman within one month but had denied back wages to him.
Yag Dutt 2013.11.13 13:54 I attest to the accuracy and integrity of this document L.P.A. No.253 of 2013 -6-11. Contention of the Management that the workman was called upon to come back to work and thus there was nothing remiss on the part of the Management and that this aspect was ignored by the Tribunal, is of no merit. Perusal of the Award shows that this aspect was considered at length by the Tribunal and plea of the Management was rightly rejected. Relevant findings of the Tribunal in this context are to the following effect:
"The cumulative effect of entire evidence on record is that workman was asked to perform the work as 'Chowkidar', whereas it was the adamancy of the management to engage him as group-D employee. He was also directed by the management to discharge the function of a group 'D' employee other than the 'Chowkidar' and it was illegal act of the management. The opportunity was afforded to the workman as group D employee, but not as to work a chowkidar to which the workman has rightly refused. Thus, I am of the view that the workman has not surrendered his work but he was not permitted to work for which he was approved as DLP worker by the management and it amounted to the retrenchment of the workman."
12. When entire spectrum of facts is interfaced with the chain of events and circumstances, it clearly emerges that the Management had wrongly been insisting that the workman clean dung and provide fodder to animals whereas by the own showing of the Management, it is clear that the workman was recruited as Chowkidar and not in general category of Group- D employee.
13. So far as claim of the workman for back wages, if not full, to the extent of 50% is concerned, there is no categoric statement of the workman that he had not been gainfully employed after termination of his service. Instead of making such positive assertion, he has merely side- tracked the issue by urging that it was for the Management to prove that he was not gainfully employed. Prayer for back wages in the given set of circumstances had not found favour either with the Tribunal or with the learned Single Bench. It may be noticed that date of termination of the Yag Dutt 2013.11.13 13:54 I attest to the accuracy and integrity of this document L.P.A. No.253 of 2013 -7- workman is 22.10.1992. Date of decision of the Tribunal is 24.11.2009 whereas the date of decision of learned Single Judge is 12.3.2012. Applying the principle of 'No work, no wages', the learned Single Judge did not grant back wages to the workman. Relevant findings in this context are as under:
"In the present case, the workman has not shown to this Court that he was not engaged in any employment during the period from 1992 till the reference was decided i.e. 24.11.2009. It means 17 years have lapsed during the intervening period and it is beyond comprehension that the workman remained without work during all this period.
For these reasons, this Court is of the view that the workman is not entitled to back wages, the doctrine of 'No Work No Wages' applies."
14. Even during hearing before us, counsel for the workman has not been able to make out a case for back wages for him as it could not be claimed with confidence and assertion that the workman had not been employed gainfully during this period.
15. Resultantly, we find no error of fact or law in the findings recorded by the learned Single Judge. Thus, the appeal, being devoid of merit, is dismissed.
(Dr. Bharat Bhushan Parsoon) Judge (Rajive Bhalla) Judge October 22, 2013 'Yag Dutt'
1. Whether Reporters of local papers may be allowed to see the judgment?
2. Whether to be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Yag Dutt 2013.11.13 13:54 I attest to the accuracy and integrity of this document