Punjab-Haryana High Court
Punjab Urban Planning And Development ... vs Shri Mandeep Singh And Others on 17 December, 2013
Author: Rameshwar Singh Malik
Bench: Rameshwar Singh Malik
Saluja Mukesh Kumar
CWP NO.3973 of 2012 1 2013.12.31 11:25
I attest to the accuracy and
integrity of this document
HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT
CHANDIGARH
CWP NO.3973 of 2012
Date of decision:17.12.2013
Punjab Urban Planning and Development Authority
...Petitioner(s)
Versus
Shri Mandeep Singh and others
...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.D.V.Sharma, Sr. Advocate with
Mr.Harit Sharma, Advocate,
for the petitioner.
Ms.Jigyasa Tanwar, Advocate,
for respondent No.1.
RAMESHWAR SINGH MALIK, J. (Oral)
Feeling aggrieved against the impugned award dated 18.10.2011 (Annexure P-8), petitioner-management has approached this Court by way of instant writ petition under Articles 226/227 of the Constitution of India, seeking a writ in the nature of certiorari for setting aside the impugned award, whereby the respondent-workman was directed to be reinstated with continuity of service and 40% back wages.
To unravel the short controversy involved between the parties, brief narration of essential facts would be required. Respondent-workman was appointed as Ledger Keeper by the petitioner-management on 1.5.1997 on daily wages basis. However, he was being paid the salary per month. Respondent-workman proceeded on ex-India leave w.e.f. 17.3.2000. It was claimed by the respondent-workman that the competent authority, i.e. Shri Saluja Mukesh Kumar CWP NO.3973 of 2012 2 2013.12.31 11:25 I attest to the accuracy and integrity of this document S.S.Bhatal, SDE, granted him the leave. When he returned after availing ex-India leave, he was not allowed by the petitioner-management to rejoin the duty saying that it was a case of abandonment of job. Feeling aggrieved, respondent-workman raised the industrial dispute. Conciliation proceedings failed and thereafter the appropriate government referred the industrial dispute to the learned Labour Court for its adjudication. On completion of the pleadings, both the parties led their respective evidence. After hearing both the parties and going through the evidence brought on record, the learned Labour Court came to the conclusion that the petitioner- management illegally terminated the services of respondent-workman. Reinstatement with continuity of service and 40% back wages were directed vide impugned award dated 18.10.2011 (Annexure P-8). Hence, this writ petition at the hands of the management.
Notice of motion was issued and operation of the impugned award was stayed only qua 40% back wages. Written statement was filed by the respondent-workman. Petitioner-management allowed the respondent-workman to join the services in compliance of the impugned award but subject to final decision of the writ petition, as submitted by the learned senior counsel for the petitioner.
Learned senior counsel for the petitioner submits that the present one was a clear cut case of abandonment of job at the hands of the respondent-workman. He further submits that the alleged order sanctioning the leave was nothing but a forged document. He further submits that the learned Labour Court has proceeded on erroneous approach while passing the impugned award. He places heavy reliance on the pleadings of the parties to contend that the respondent-workman did not deny the specific Saluja Mukesh Kumar CWP NO.3973 of 2012 3 2013.12.31 11:25 I attest to the accuracy and integrity of this document and categoric averments taken in the written statement (Annexure P-3) while submitting his replication (Annexure P-4), thereto. He next contended that since respondent-workman was working on daily wages basis, no domestic enquiry was required to be held, once he himself abandoned the job. Regarding forgery qua document Annexure P-6, he submits that neither it was written on an official letter head of the department nor it was bearing any dispatch number. Similarly, there was too much gap between the signatures and last line of the letter, besides it does not contain details as to from which date to which date the leave was being granted. Although, Annexure P-6 shows that leave was up to 17.3.2000 but respondent workman has actually worked up to 19.3.2000. He also submitted that daily wager was not entitled for ex-India leave. To substantiate his arguments, he relies upon the judgments of the Hon'ble Supreme Court in Himanshu Kumar Vidyarthi and others v. State of Bihar and others, 1997 AIR (SC) 3657 and Executive Engineer (State of Karnataka) v. K. Somasetty, 1997 AIR (SC) 2663, judgments of this Court in Haryana State Minor Irrigation and Tubewells Corporation Ltd. v. Presiding Officer, Labour Court, Hisar, 1998 (4) S.C.T. 447 and Sujan Kaur v. Chand Singh, 2003 (3) RCR (Civil) 660 and judgment of Delhi High Court in Management of the Hindu v. Presiding Officer, Industrial Tribunal No.2, 2002 (2) CLR 227. He concluded by submitting that the cumulative effect of the above-said aspects, will make the document (Annexure P-6) a forged one. Finally, he prays for setting aside the impugned award by allowing the present writ petition.
Per contra, learned counsel for the respondent-workman submits that there was no scope of any forgery in the present case. The Saluja Mukesh Kumar CWP NO.3973 of 2012 4 2013.12.31 11:25 I attest to the accuracy and integrity of this document veracity of the document was duly got examined by Dr. Inderjit Singh as WW-1, who was a Handwriting and Fingerprint Expert. He compared the disputed signatures of Sh. S.S.Bhatal on the identity card, Ex. W/1 and letter dated 16.3.2000 (Annexure P-6). Nothing objectionable was found about the authenticity of the letter issued by the competent authority while sanctioning the leave in favour of the respondent-workman. Respondent- workman himself appeared as WW-2 and duly discharged his onus. Petitioner-management admittedly did not initiate any action against the official, i.e. Sh. S.S.Bhatal, who sanctioned the leave in favour of the respondent-workman. Similarly, even after proving this document before the learned Labour Court, the petitioner-management did not lodge any report with the police against the respondent-workman about the alleged forgery. She further submits that this inaction on the part of the petitioner- management at different points of time, speaks volumes about the truthfulness of document Annexure P-6. She next contended that admittedly respondent-workman has rendered service for more than 2 ½ years. The plea raised by the petitioner-management that it was a case of abandonment of job was totally incorrect because had it been so, respondent-workman would not return to India back and would have never raised the industrial dispute. The petitioner-management also did not conduct any enquiry nor issued any letter to the respondent-workman asking him to join the duty or to explain his alleged absence from duty. The learned Labour Court has correctly appreciated the true factual as well as legal aspect of the matter, while passing the impugned award and the same deserves to be upheld. She prays for dismissal of the present writ petition.
Having heard the learned counsel for the parties at considerable Saluja Mukesh Kumar CWP NO.3973 of 2012 5 2013.12.31 11:25 I attest to the accuracy and integrity of this document length, after careful perusal of the record of the case and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that the present one is not a fit case warranting any interference 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 has gone undisputed on record that the respondent-workman started working with the petitioner-management w.e.f.1.5.1997 and he worked up to 19.3.2000. So far as the alleged forgery in the document (Annexure P-6) was concerned, that aspect has already been gone into by Handwriting and Fingerprint Expert Dr.Inderjit Singh who appeared before the learned Labour Court as WW-1. The argument raised by the learned senior counsel for the petitioner in this regard has been found to be without any force. The expert report cannot be replaced by the general opinion either by the court or any other authority.
Further, the petitioner-management had full opportunity to cross-examine the witnesses before the learned Labour Court. Once this piece of evidence rendered by the expert could not be disputed by the petitioner-management, there was hardly any scope left for this Court to re- appreciate the same without there being any additional material on record. 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.
The next argument raised by learned senior counsel for the petitioner was that it was a case of abandonment of job but the same has also been found to be equally fallacious. It is so said because the Saluja Mukesh Kumar CWP NO.3973 of 2012 6 2013.12.31 11:25 I attest to the accuracy and integrity of this document respondent-workman proceeded on a duly sanctioned leave, returned back from abroad and submitted his joining report without any over stay. Admittedly, no domestic enquiry was conducted against him. It is also not in dispute that petitioner-management did not issue any letter seeking either his explanation for his alleged absence or asking him to join duty. In this view of the matter, it is unhesitatingly held that the learned Labour Court proceeded on factually correct and legally justified approach while passing the impugned award and the same deserves to be upheld for this reason as well.
Before arriving at a judicious conclusion, the learned Labour Court recorded cogent findings and the operative part of the award reads as under:-
"After hearing the parties at length and going through the evidence on record, I find that workman Mandeep Singh proceeded on ex-India leave for 2½ years and that too with the permission of the respondent. He returned on 16.5.2002 without any over stay. Although, the respondent denied this fact, but the identity card Ex. W/1 issued by the respondent shows him to be an employee namely ledger keeper under the respondent. It has been issued by SDE Sh.S.S.Bhatal. Similar is the letter dated 16.3.2000 issued by Sh.S.S.Bathal, SDE himself Ex.W/2 which also goes to prove that workman Mandeep Singh proceeded on 2 ½ years leave w.e.f. 17.3.2000 for going abroad. In this letter Ex.W/2, he has been warned that under no circumstances, he will be allowed extension in leave and if he does not return to India to join duties after the Saluja Mukesh Kumar CWP NO.3973 of 2012 7 2013.12.31 11:25 I attest to the accuracy and integrity of this document leave period, his services will become automatically terminated. In respect of these two documents are forged and fictitious. Department expert's report, however, shows these documents carrying the signatures of Sh.S.S.Bhatal, SDE. The respondent did not examine the said Sh.S.S.Bhatal to deny his signatures on these documents. Thus, it is very much clear that workman Mandeep Singh, Ledger Keeper of the respondent proceeded on 2½ years approved ex-India leave w.e.f. 17.3.2000 and on return within that period, he was not allowed to join duties by the respondent.
Admittedly, he was not charge sheeted nor any inquiry was held against him. In Shri D.K.Yadav vs. M/s J.M.A. Industries Ltd., 1993(4) 126 (SC) striking off the name of a workman for absence from duties, amounts to retrenchment and before terminating his services, reasonable opportunity of hearing will be given. Such an employee cannot be retrenched without holding an inquiry or issuing him a charge sheet. Absence of any inquiry, charge sheet or opportunity of hearing to the workman, makes his termination, illegal and the same is set aside. This issue is decided in favour of the workman and against the respondents.
Relief In view of my findings recorded in the preceding paras, the workman is reinstated in service of the respondent with continuity of service and with 40% back wages for the period he has not actually worked. The respondent Saluja Mukesh Kumar CWP NO.3973 of 2012 8 2013.12.31 11:25 I attest to the accuracy and integrity of this document management is directed to reinstate the workman with continuity of service and pay him 40% of the back wages, within 30 days of the publication of the award. The reference is answered accordingly. No order as to costs."
A bare reading of the above-said observations made by the learned Labour Court would show that the relief was suitably moulded at the time of passing of the award. Respondent-workman was granted only 40% back wages. While issuing notice of motion, this Court did not find it appropriate to stay the operation of the impugned award in toto. It was stayed only qua 40% back wages. Resultantly, the petitioner-management allowed the respondent-workman to join his duty, who is admittedly working with the petitioner-management. Thus, the impugned award deserves to be upheld, for this reason also.
The above-said view taken by this Court also finds support from the judgments of the Hon'ble Supreme Court in Harjinder Singh Vs. Punjab State Warehousing Corporation, 2010 (3) SCC 192 and Devinder Singh Vs. M.C.Sanur, 2011 (6) SCC 584.
The relevant observations made by the Hon'ble Supreme Court in Harjinder Singh's case (supra), which can be gainfully followed in the present case, read as under:-
"30. 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 Saluja Mukesh Kumar CWP NO.3973 of 2012 9 2013.12.31 11:25 I attest to the accuracy and integrity of this document 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 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.
31. 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."Saluja Mukesh Kumar
CWP NO.3973 of 2012 10 2013.12.31 11:25 I attest to the accuracy and integrity of this document Similarly, the Hon'ble Supreme Court in Devinder Singh's case (supra) observed as under:-
13. The source of employment, the method of recruitment, the terms and conditions of employment/contract of service, the quantum of wages/pay and the mode of payment are not at all relevant for deciding whether or not a person is a workman within the meaning of Section 2(s) of the Act.
14. It is apposite to observe that the definition of workman also does not make any distinction between full time and part time employee or a person appointed on contract basis.
There is nothing in the plain language of Section 2(s) from which it can be inferred that only a person employed on regular basis or a person employed for doing whole time job is a workman and the one employed on temporary, part time or contract basis on fixed wages or as a casual employee or for doing duty for fixed hours is not a workman."
So far as the judgments relied upon by the learned senior counsel for the petitioner are concerned, there is no dispute about the law laid down therein. However, a close perusal of these judgments would show that these are distinguishable on facts and are of no help to the petitioner. 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.
Saluja Mukesh Kumar
CWP NO.3973 of 2012 11 2013.12.31 11:25
I attest to the accuracy and
integrity of this document
During the course of hearing, learned senior counsel for the petitioner has failed to point out any jurisdictional error or patent illegality apparent on the record of the case, in the impugned award passed by the learned Labour Court. He also could not press into service any substantive argument so as to convince this Court to take a different view than the one taken by the learned Labour Court. No prejudice has been shown to have been caused to the petitioner-management while passing the impugned award, which deserves to be upheld.
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 the present writ petition is misconceived, bereft of merit and without any substance. Thus, it must fail. No case for interference has been made out.
Resultantly, the instant writ petition stands dismissed, however, with no order as to costs.
17.12.2013 (RAMESHWAR SINGH MALIK) mks JUDGE