Punjab-Haryana High Court
The Divisional Forest Officer vs Sh. Gurmeet Singh And Another on 16 August, 2013
Author: Rameshwar Singh Malik
Bench: Rameshwar Singh Malik
Civil Writ Petition No. 17835 of 2013 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Writ Petition No. 17835 of 2013
Date of Decision: August 16, 2013
The Divisional Forest Officer, (Production), Kurukshetra & others
........Petitioner
Versus
Sh. Gurmeet Singh and Another
.........Respondents
CORAM: HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK
Present: Mr. Sunil Nehra, Sr. DAG, Haryana, for the
petitioners.
*****
RAMESHWAR SINGH MALIK J. (ORAL)
Feeling aggrieved against the impugned award dated 13.03.2013 (Annexure P-5) passed by learned Labour Court, Ambala, petitioner-Management has approached this Court, by way of instant writ petition under Article 226/227 of the Constitution of India, seeking a writ in the nature of certiorari, for quashing the impugned award.
Brief facts of the case, which are necessary for disposal of the present writ petition can be put into the narrow compass. The respondent-workman joined the service on 04.04.1998 on daily wages basis. His service was terminated by petitioner-Management in the month of May, 2000. He raised an industrial dispute, which was referred to the learned Labour Court. vide award dated 21.04.2004, Anjal Gupta 2013.11.13 10:25 I attest to the accuracy and integrity of this document high court chandigarh Civil Writ Petition No. 17835 of 2013 2 respondent-workman was ordered to be reinstated with continuity of service. Consequently, he was taken back in service. However, on 27.05.2005, the petitioner-Management issued a letter of retrenchment to the respondent-workman. The workman filed Civil Writ Petition No. 9873 of 2005 before this Court and letter of retrenchment was initially stayed by this Court.
Thereafter, the writ petition was disposed of, vide order dated 20.10.2005, directing the respondents to reconsider the case of workman for regularization of his services, as per relevant policy decision of the State Government. However, services of respondent- workman were again terminated, vide order dated 07.01.2008. He again raised an industrial dispute by way of his demand notice (Annexure P-1), which was replied by the petitioner-Management, vide Annexure P-2. Reconciliation proceedings having failed, industrial dispute was referred to the learned Labour Court. Respondent-workman filed his claim statement (Annexure P-3), which was replied by the petitioner-Management, vide its written statement(Annexure P-4). Parties led their respective evidence.
After hearing both the parties and appreciating the evidence brought on record, the learned Labour Court recorded a plausible finding that the petitioner-Management violated the mandatory provisions of Section 25-F of the Industrial Disputes Act, 1947 (for short ' the I.D. Act). Reinstatement with continuity of service and 50% back wages was ordered, vide impugned award dated 13.03.2013 (Annexure P-5). Hence, this writ petition. Anjal Gupta 2013.11.13 10:25 I attest to the accuracy and integrity of this document high court chandigarh Civil Writ Petition No. 17835 of 2013 3
Learned counsel for the petitioner submits that since the respondent-workman failed to discharge his initial onus to prove that he completed 240 days in the preceding twelve calendar months before his termination, finding recorded by the learned Labour Court was erroneous. He further submits that once respondent No.1 failed to discharge his onus, the learned Labour Court illegally shifted the onus on the petitioner-Management. He submits that even the back wages granted by the learned Labour Court were on higher side. To substantiate his arguments, learned counsel for the petitioner relies upon the judgments of the Hon'ble Supreme Court in Essen Deinki Versus Rajiv Kumar 2002 (8) SCC 400 and Surenderanagar District Panchayat Versus Dayabhai Amarsinh 2005(8) SCC 750. He finally prays for setting aside the impugned award, by allowing the present writ petition.
Having heard the learned counsel for the petitioner at considerable length, after careful perusal of the record of the case and giving thoughtful consideration to the contention raised, this Court is of the considered opinion that in view of given fact situation of the case, no interference is warranted at the hands of this Court, while exercising its writ jurisdiction under Article 226/227 of the Constitution of India. To say so, reasons are more than one, which are being recorded hereinafter.
It is a matter of record that petitioner-Management terminated the services of respondent-workman, at an earlier point of time also. He was directed to be reinstated by the learned Labour Anjal Gupta 2013.11.13 10:25 I attest to the accuracy and integrity of this document high court chandigarh Civil Writ Petition No. 17835 of 2013 4 Court and thereafter, he was allowed to re-join the duty. Initially, respondent-workman joined his service on 04.04.1998 on daily wage basis with the petitioner-department. His services were terminated in May, 2000, which was set aside by the learned Labour Court, vide award dated 21.04.2004 and he was directed to be reinstated with continuity of service. It is also a matter of record that when the petitioner-Management issued a letter intending to terminate the services of respondent-workman, it was stayed by this Court in CWP No. 9873 of 2005 filed by respondent-workman.
While disposing of the writ petition, this Court directed the petitioner-Management to consider the claim of the workman for regularization of his service on the basis of the relevant policy of the State Government. However, the services of respondent-workman were again terminated, vide order dated 07.01.2008 and by that time, he had rendered about 10 years of service. Learned Labour Court rightly appreciated the abovesaid factual aspect of the matter while passing the impugned order, which deserves to be upheld.
In its reply (Annexure P-2) to the demand notice (Annexure P-1), petitioner-Management levelled the allegation of absence against the respondent-workman in the preliminary objection taken in the reply. The relevant averments taken in reply (Annexure P-2), reads as under:
"In the mean time workman was found absent on 6.1.08 in the sale depot Jyotisar. Govt. property worth lakhs of rupees had been left unguarded by the concerned workman so he was disengaged from work"Anjal Gupta 2013.11.13 10:25 I attest to the accuracy and integrity of this document high court chandigarh Civil Writ Petition No. 17835 of 2013 5
Again in para Nos. 4, 7, 8 and 10 of the reply(Annexure P-2), petitioner-Management alleged that respondent-Workman was habitual absentee and he was discharged from duty for sheer negligence.
The relevant averments taken in para Nos. 7 and 8 at page 26 of paper book, read as under:
"As stated in reply of Para No.4 of the demand notice the, workman was habitual to remain absent from duty. On inspection, dated 6.1.2008 the workman was found absent from duty sale depot Jyotisar where he was engaged. The workman remained absent willfully without any information to the incharge of depot hence disengaged from work."
"The workman was diputed for watch and ward duty for forest produce lying in lots at sale depot Jyotisar. the workman remained wilfully absent and thus discharged from duty for sheer negligence in watch and ward duty for govt. property worth lakhs lying in open."
On the other hand, the averments taken by the respondent-workman in para no. 14 of his demand notice that he had completed 240 days of continuous service without any break in one calendar year, was not properly denied by the petitioner- Management. Para No.14 of the demand notice(Annexure P-1) and corresponding para No. 14 of the reply(Annexure P-2), read as under:
"That I have completed more than 240 days in continuous service without any break in a calendar year."
"That the contents of Para No.14 of the demand notice are wrong and hence denied."Anjal Gupta 2013.11.13 10:25 I attest to the accuracy and integrity of this document high court chandigarh Civil Writ Petition No. 17835 of 2013 6
Similarly, in the claim petition (Annexure P-3) filed before the learned Labour Court, the respondent-workman has taken following averments in para nos. 7 and 8 of the claim petition:
"That the juniors to the petitioner are still working in the department and are retained there.
That the petitioner has completed more than 240 days in continuos service in one Calendar year and hence the petitioner is deemed to be regular and confirm employee under the respondent. Hence the termination of the services of the petitioner by the respondents is illegal, null and void, arbitrary, and liable to be set aside."
The corresponding reply to the abovesaid claim petition in para Nos. 7 and 8 of the reply (Annexure P-4) submitted by the petitioner-Management, reads as under:
"7.That the contents of para no.7 of the claim petition are wrong and hence denied.
8. That the contents of para no. 8 of the claim petition are wrong and hence denied. There are so many breaks in the service of the workman.
It is again an admitted position on record that despite the abovesaid specific allegation of being habitual absentee against respondent-workman, no domestic inquiry was held by the petitioner-
Management. While appearing before the learned Labour Court as WW-1, he proved in his affidavit Ex. WW-1/A, categorically stating that he had completed 240 days of continuous service in every calendar year before termination of his service. On the other hand, when the witness of the petitioner-Management appeared as MW-1, Anjal Gupta 2013.11.13 10:25 I attest to the accuracy and integrity of this document high court chandigarh Civil Writ Petition No. 17835 of 2013 7 he deposed in his cross-examination that the department did not maintain any attendance record or muster roll pertaining to the workers.
The relevant findings recorded by the learned Labour Court in para nos. 9,10 and 11 of the impugned award, read as under:
"9. Keeping in view the arguments extended by both the parties, in my considered opinion the fact of the workman being in service of the respondents as a daily wager and further his services having been terminated vide order dated 7.1.2008 (Mark-D) are admitted facts. That a perusal of Mark-D reveals that the workman had been removed from service by alleging that he had absented from duty on 6.1.2008 without any intimation to the concerned authorities and the said order being punitive in nature, the respondents should have given the workman an opportunity of being heard and in the absence of which the said order is violative of the principles of natural justice.
10. Now moving on to the contention regarding the workman having completed 240 days continuous service or not, the workman has in his claim statement as well as in his affidavit Ex. WW-1/A categorically stated that he had completed 240 days continuous service in every calendar year and once when the workman has stated so, the onus then shifted on the respondents to have proved otherwise by bringing forward attendance register, muster roll etc. but no such document has been brought forward by the respondents inasmuch as MW-1 has in his cross-examination deposed that the department did not maintain any attendance record or muster roll pertaining to the workers. At this stage reliance is being placed on the following authority of the Hon'ble Supreme Court 2010 Anjal Gupta 2013.11.13 10:25 I attest to the accuracy and integrity of this document high court chandigarh Civil Writ Petition No. 17835 of 2013 8 (2) RSJ 184, Director Fisheries Terminal Division Versus Bhikubhai Meghajibhai Chavda.
11.Keeping in view my observations above, in my opinion the termination order dated 7.1.2008 was illegal inasmuch as no opportunity of being heard was provided to the workman or one month notice or salary in lieu thereof or any retrenchment compensation having been paid to the workman, as such the said termination order being in violation of section 25-F of the Act, the workman becomes entitled to reinstatement as prayed for."
Keeping in view the abovesaid factual background of the present case, pleadings and evidence of the parties, this Court feels no hesitation to conclude that the learned Labour Court committed no error of law, while recording the abovesaid cogent findings against the petitioner-Management and in favour of the respondent-Workman. Once it was the own pleaded case of the petitioner before the learned Labour Court that services of respondent-workman were terminated on account of his alleged willful absence, it was obligatory for the petitioner-Management to conduct the domestic inquiry.
To terminate the services of workman on account of an alleged misconduct and without conducting inquiry, will certainly result in glaring violation of the basic principles of natural justice. Golden Rule of audi alteram partem would stand violated. Thus, the impugned award suffers from no illegality and the same deserves to be upheld.
The argument raised by learned counsel for the petitioner that onus was wrongly shifted by the learned Labour Court Anjal Gupta 2013.11.13 10:25 I attest to the accuracy and integrity of this document high court chandigarh Civil Writ Petition No. 17835 of 2013 9 on the petitioner-Management, has been found to be without any force. In view of the factual background of the case, followed by pleadings and evidence led by the parties, it becomes clear that the petitioner-Management has violated the mandatory provisions of law. Once the categoric averments taken by the workman that he had completed 240 days service in the preceding twelve calendar months, were not specifically denied by the petitioner-Management in its reply (Annexure P-2), filed to the demand notice(Annexure P-1) or in its written statement (Annexure P-4) filed to the claim petition (Annexure P-3) reproduced above, it does not lie in the mouth of the petitioner-Management to raise this issue before this Court, particularly when its own witness MW-1 has deposed in his cross- examination that the department was not maintaining any attendance record or muster roll pertaining to the workers. Thus, the petitioner cannot be permitted to draw any benefit out of its wrong.
So far as the judgments relied upon by learned counsel for the petitioner are concerned, there is no dispute about law laid down therein. However, on careful perusal, it has been found that both these judgments were rendered in entirely different set of facts, than the peculiar facts and circumstances of the present case. Thus, the judgments are distinguishable on facts. In the present case, the respondent-Workman has specifically pleaded his categoric averments which were not properly denied by the petitioner- Management, as noticed hereinabove. Further, he appeared as witness and deposed before the Court duly proving his affidavit in the Anjal Gupta 2013.11.13 10:25 I attest to the accuracy and integrity of this document high court chandigarh Civil Writ Petition No. 17835 of 2013 10 evidence. Another very material aspect of the matter was that when the witness of the petitioner-Management appeared, he deposed in his cross-examination that the department was not maintaining any attendance record or muster roll pertaining to the workers. If that is true, then the learned Labour Court committed no error of law while shifting the onus on the petitioner-Management to disprove that the respondent workman did not work for 240 days, in the preceding twelve calendar months, at the time of the termination of his service.
Further, 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.
Respondent-workman had rendered about 10 years of service. He had been forced to face an avoidable and unwarranted litigation right from May, 2000, when his services were terminated for the first time. He had to approach the learned Labour Court and was directed to be reinstated with continuity of service vide award dated 21.04.2004. Again, having been served with a letter dated 25.07.2005 for retrenchment, he approached this Court by way of CWP No. 9873 of 2005, which was disposed of with a direction to the petitioner-Management for considering him for regularization of services. However, his services were again terminated on Anjal Gupta 2013.11.13 10:25 I attest to the accuracy and integrity of this document high court chandigarh Civil Writ Petition No. 17835 of 2013 11 07.01.2008 and that too on the basis of an alleged misconduct of habitual absentee but without holding any inquiry.
Thus, in this background of the matter, it cannot be said that 50% back wages granted by the learned Labour Court was on higher side. Further, learned counsel for the petitioner, could not put into service, any argument so as to persuade to this Court to take a different view than the one taken by the learned Labour Court. No jurisdictional error or patent illegality apparent on the record of the case, has been pointed out in 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 in the given fact situation of the case, the instant 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.
August 16, 2013 (RAMESHWAR SINGH MALIK)
ANJAL JUDGE
Anjal Gupta
2013.11.13 10:25
I attest to the accuracy and
integrity of this document
high court chandigarh
Civil Writ Petition No. 17835 of 2013 12
Anjal Gupta
2013.11.13 10:25
I attest to the accuracy and
integrity of this document
high court chandigarh