Punjab-Haryana High Court
The Haryana State Cooperative Handloom ... vs Presiding Officer on 26 March, 2013
Author: G.S.Sandhawalia
Bench: G.S.Sandhawalia
CWP No.15124 of 1995 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CWP No.15124 of 1995
Date of decision:26.03.2013
The Haryana State Cooperative Handloom Weavers
Apex Society Ltd. Panipat .....Petitioner
Versus
Presiding Officer, Industrial Tribunal .....Respondent
CORAM : HON'BLE MR.JUSTICE G.S.SANDHAWALIA
Present: Mr.S.S.Dalal, Advocate, for the petitioner.
Mr.R.S.Chahar, Advocate, for respondent No.2.
****
G.S.Sandhawalia J. (Oral)
1. The present writ petition has been filed under Articles 226/227 of the Constitution of India for quashing and setting aside the award dated 01.03.1995 (Annexure P-5), passed by the Industrial Tribunal-cum-Labour Court, Hisar, whereby termination of respondent No.2 from service was held to be illegal and it was held that he was entitled to reinstatement with other consequential benefits. However, the back-wages were only granted from 04.10.1989, i.e., the date when demand notice was served and it was held that he was not entitled for any back-wages for the period from 24.06.1987 to 03.10.1989.
2. The case of the petitioner-Society is that respondent No.2 was appointed on 01.10.1986, for a fixed period of 89 days, on purely temporary and ad hoc basis and he was to be considered relieved after the expiry of the said term and in case of unsatisfactory work, his services could be terminated earlier, without assigning any reason thereof. On the expiry of CWP No.15124 of 1995 2 the said term, he was again appointed on 15.01.1987 for the same period and thereafter on 18.04.1987 and his services were terminated on 24.06.1987 on the ground that he was no longer required. Accordingly, the workman approached the labour authorities which led to the passing of the impugned award.
3. The Division Bench of this Court had issued notice of motion on 17.10.1995 to the respondents for back wages only and did not grant any interim protection to the petitioner/management. Counsel for the petitioner is not in a position to state whether the award has been implemented or not. He, however, contested the finding of the Labour Court on merits.
4. Accordingly, he has submitted that the action of the Society was protected under Section 2 (oo) (bb) of the Industrial Disputes Act, 1947 (for brevity, the 'Act') and therefore, there was no violation of Section 25-F of the Act since after the expiry of the contract, the workman had no right. It was, accordingly, contended that this matter was not considered by the Labour Court. His second submission is that since respondent No.2 had not served the petitioner-Society, therefore, the principle of 'no work no pay' would also apply in this case and the award was liable to be quashed.
5. A perusal of the award would go on to show that the Government had referred the dispute for adjudication to the Labour Court, Hisar on 14.03.1990. The workman claimed that the termination of services amounted to retrenchment, being in violation of Section 25-F and 25-G of the Act as employees junior to him had been retained in service. The defence of the petitioner-Society was that the services were terminated in accordance with the terms and conditions of the appointment letter and therefore, there was no violation of the provisions of the Act. CWP No.15124 of 1995 3
6. The Labour Court, Hisar, after examining the evidence and noticing the three term appointment letters and the termination order, came to a factual matrix that the total number of working days of the workman comes to 247 days and, therefore, the workman had put in more than 240 days service during the preceding twelve months from 24.06.1987. The plea of the Management that the provisions of Section 2 (oo) (bb) of the Act would come to their rescue, on the strength of the judgment of this Court in Banarsi Dass vs. Presiding Officer, Labour Court, Ambala 1994 (4) RSJ 465 was repelled on the ground that the workman had got statutory protection under Section 25F of the Act. Since the demand notice had been served on 04.10.1989, though the services were terminated on 24.06.1987, no back-wages were paid to respondent No.2, from the date of termination and he was held entitled for the back-wages from the date of issuance of the demand notice.
7. The factual matrix having been settled regarding the period of service, which was over 240 days prior to termination, therefore, there is no dispute that respondent No.2 would be entitled to the mandatory procedure of notice and pay before retrenchment could be resorted to. The submission of the counsel for the petitioner that it has a protection under Section 2 (oo) (bb) of the Act and its action would not amount to retrenchment is without any basis, in the facts and circumstances of the present case. Admittedly, the petitioner has been engaged for 89 days on three occasions, first on 01.10.1986, thereafter, on 15.01.1987 and lastly, on 18.04.1987. Thus, it is apparent that the Management had been resorting to the unfair labour practice, which is prohibited under Section 25T of the Act. The definition of unfair labour as laid down in the Act is reproduced as under: CWP No.15124 of 1995 4
"2(ra) "unfair labour practice" means any of the practices specified in the Fifth Schedule.
THE FIFTH SCHEDULE [See section 2(ra)] (UNFAIR LABOUR PRACTICES I.- On the part of employers and trade unions of employers xxxx xxxx xxxx
10. To employ workmen as "badlis", casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.
25T. Prohibition of unfair labour practice.-
No employer or workman or a trade union,
whether registered under the Trade Unions
Act, 1926 (16 of 1926), or not, shall commit
any unfair labour practice."
8. This Court can always, in the facts and circumstances, examine the unfair labour practice from the entirety of the facts and circumstances which are brought on record. The appointment letters would show that the appointment of the private respondent was to deny the workman the benefits and privileges of permanent workman and the same is not permitted under the Act. Accordingly, the contention of the counsel for the petitioner that the Society is entitled for protection under Section 2 (oo) (bb) of the Act is not acceptable. The judgment in Banarsi Dass (supra) is not applicable, in the facts and circumstances of the present case as the total working period, in that case, was less than 240 days.
9. On the second issue regarding the entitlement of back-wages, the Hon'ble Apex Court recently in Harjinder Singh Vs. Punjab State Warehousing Corporation 2010 (3) SCC 192 has held that once it is found that the workman was entitled for reinstatement, then the benefits must flow CWP No.15124 of 1995 5 to the workman on the ground that the Industrial Dispute Act is a social welfare legislation and payment of compensation would not be adequate. Relevant portion of the judgment reads as under:
"17. Before concluding, we consider it necessary to observe that while exercising jurisdiction under Articles 226 and/or 227 of the Constitution in matters like the present one, the High Courts are duty bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to sub-serve the common good and also ensure that the workers get their dues. More than 41 years ago, Gajendragadkar, J, opined that "the concept of social and economic justice is a living concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the ideal of welfare State" - State of Mysore v. Workers of Gold Mines AIR 1958 SC 923.
xxxx xxxx xxxx
19. The preamble and various Articles contained in Part IV of the Constitution promote social justice so that life of every individual becomes meaningful and he is able to live with human dignity. The concept of social justice engrafted in the Constitution consists of diverse principles essentially for the orderly growth and development of personality of every citizen. Social justice is thus an integral part of justice in the generic sense. Justice is the genus, of which social justice is one of its species. Social justice is a dynamic devise to mitigate the sufferings of the poor, weak, dalits, tribals and deprived sections of the society and to elevate them to the level of equality to live a life with dignity of person. In other words, the aim of social justice is to attain substantial degree of social, economic and political equality, which is the CWP No.15124 of 1995 6 legitimate expectation of every section of the society. In a developing society like ours which is full of unbridgeable and ever widening gaps of inequality in status and of opportunity, law is a catalyst to reach the ladder of justice. The philosophy of welfare State and social justice is amply reflected in large number of judgments of this Court, various High Courts, National and State Industrial Tribunals involving interpretation of the provisions of the Industrial Disputes Act, Indian Factories Act, Payment of Wages Act, Minimum Wages Act, Payment of Bonus Act, Workmen's Compensation Act, the Employees Insurance Act, the Employees Provident Fund and Miscellaneous Provisions Act and the Shops and Commercial Establishments Act enacted by different States.
xxxx xxxx xxxx
23. 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 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. 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 CWP No.15124 of 1995 7 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."
10. Accordingly, keeping in view the above principles where it was laid down that payment of compensation would not be adequate and that justice is to be given to the workman for the wrongful termination by way of reinstatement and consequential relief of back wages as granted by the Labour Court, the present writ petition is dismissed being devoid of merit.
26.03.2013 (G.S.Sandhawalia) sailesh JUDGE