Himachal Pradesh High Court
Ramesh Chand vs State H.P. & Another on 29 August, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
CWP No: 8656 of 2010
.
Date of Decision: 29th August, 2016
Ramesh Chand ....Petitioner.
Versus
State H.P. & another ...Respondents.
Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
of
Whether approved for reporting?1 Yes.
For the Petitioner : Mr. B.C. Sharma, Advocate.
For the Respondents:
rt Mr. Rupinder Singh Thakur,
Additional Advocate General, for
respondent No.1.
Sh. S.C.Sharma, Advocate, for
respondent No.2.
Sandeep Sharma, Judge (Oral)
By way of present writ petition filed under Article 226 & 227 of the Constitution of India, petitioner has laid challenge to the impugned award dated 17.5.2010, passed by learned Presiding Judge, Industrial Tribunal-Cum-Labour Court, Dharamshala, H.P., in Reference Petition No.21 of 2008, whereby learned Tribunal held the termination of the petitioner illegal and accordingly directed the respondent to re-engage the petitioner forthwith along with the continuity in service Whether reporters of the local papers may be allowed to see the judgment?
yes ::: Downloaded on - 15/04/2017 21:06:08 :::HCHP ...2...
and seniority, except back wages. The petitioner, being aggrieved with the denial of back wages has approached this Court by way of present writ petition seeking therein .
following reliefs:-
(i) The respondent No.2 may be directed to pay `16,90,000/- to the petitioner on account of the over time allowance, leave encashment, loss of earnings, of expenditure incurred for treatment, cost for future treatment, arrears of salary, rt future salary till the age of superannuation etc. as submitted in detail in the body of the petition;
(ii) In the alternative, if future salary till the superannuation of the petitioner is not given, respondent No.2 may be directed to give employment to the wife of the petitioner in place of the petitioner as the petitioner, due to his ill health, is not in a position to work.
(iii) Respondent No.1 may be directed to safeguard the interest of the petitioner;
(iv) Any other relief, as may be deemed fit in the facts and circumstances of the case, may be given to the petitioner.
2. Briefly stated facts, as emerge from the record are that the petitioner was engaged a Chowkidar ::: Downloaded on - 15/04/2017 21:06:08 :::HCHP ...3...
with the respondent in September, 2005, wherein he continued to work as such till August, 2006. The petitioner claimed that his services were illegally terminated in .
August, 2006 in violation of the principle Section 25-F of the Industrial Disputes Act, 1947 (hereinafter to be referred as the 'Act'). Petitioner also claimed that prior to his illegal retrenchment, he had completed 240 days in of the preceding 12 calendar months prior to his termination and as such, respondent was under obligation to issue rt notice under Section 25-F of the Act before termination.
Petitioner also claimed that at the time of his termination, respondent also retained persons juniors to him and as such, violated the principle of "Last Come First Go" as enshrined under Section 25-G of the Act. Petitioner categorically stated that the respondent after his retrenchment, appointed a new person as a Security Guard without affording him any opportunity in violation of Section 25-H of the Act. Petitioner also claimed that the respondent failed to pay an amount of `28,560/- payable to him on account of over time, leave encashment and wages pertaining to weekly and national holidays. Since, respondent failed to redress the grievance of the petitioner, petitioner raised a Industrial Dispute by ::: Downloaded on - 15/04/2017 21:06:08 :::HCHP ...4...
serving a demand notice on the respondent and in this regard appropriate government referred the matter to the Labour Court and made following reference to the learned .
Industrial Tribunal- Cum-Labour Court for adjudication:-
"Whether the action of the Managing Director, M/s Shanker Board Processers, Unit-II, Plot No.37-38, Phase-III, Industrial Estate, Sansarpur Terrace, Tehsil Dehra, District Kangra, H.P. to terminate the service of of Shri Ramesh Chand S/o Shri Charan Dass workman w.e.f.27-08-2006 and not to pay him rtbalance amount to `28,560/- wages without complying the provisions of the Industrial Disputes Act, 1947 as alleged by the workman is proper and justified? If not, what relief of service benefits and amount of compensation the above aggrieved workman is entitled to?"
3. Learned Tribunal on the basis of the evidence adduced on record by the respective parties, passed the impugned award dated 17.5.2010, whereby termination of the petitioner was held to be illegal being in violation to the provisions of the Act and accordingly directed the respondent to re-engage the petitioner forthwith alongwith the continuity in service and seniority, except back wages.
Since, no back wages were granted to the present petitioner, he filed the present petition praying therein for reliefs, as have been reproduced hereinabove. It may be ::: Downloaded on - 15/04/2017 21:06:08 :::HCHP ...5...
noticed here that no appeal whatsoever, has been filed by the respondent against the impugned award, passed by the learned Tribunal, meaning thereby award was .
accepted by the respondent in toto.
4. At this stage, learned counsel representing the petitioner invited the attention of this Court to Annexure P-3 i.e. medical certificate issued by Mohan Dai Oswal of Cancer Treatment & Research Foundation to demonstrate that after passing of impugned award, petitioner was rt unable to resume the duty for medical reasons as contained in Annexure P-3 and as such, he confined his prayer for back wages qua the period he was not allowed to work despite there being sufficient work available with the respondent. Since, the respondent has not laid any challenge to the impugned award, this Court would only consider the prayer of the petitioner for back wages qua the period, he was not allowed to work after his illegal retrenchment.
5. In the present case, petitioner by way of claim petition before the learned Tribunal stated that he was engaged as Chowkidar by the respondent in September, 2005 and he worked as such till August, 2006. He also stated that in August, 2006, respondent without any ::: Downloaded on - 15/04/2017 21:06:08 :::HCHP ...6...
reason illegally terminated his services in violation of the provisions of Section 25-F of the Act. He also stated that prior to his illegal retrenchment, he had completed 240 .
days in the preceding 12 calendar months, and respondent ought to have issued notice under Section 25 of the Act before terminating his services. The Petitioner also claimed that at the time of his retrenchment, of respondent retained persons junior to him and as such, respondent violated the principle of "Last Come First Go"
rt as enshrined under Section 25-G of the Act. Petitioner also claimed that at the time of his retrenchment, respondent appointed a new person as a Security Guard without affording any opportunity to him and as such action of the respondent is in violation of Section 25-H of the Act also.
Besides above, petitioner by way of claim also raised the dispute of non- payment of `28,560/- payable to him as over time, leave encashment and wages pertaining to weekly and national holidays.
6. Respondent by way of reply refuted the claim of the petitioner by stating that petitioner was engaged as unskilled worker on 12.9.2005(reflected as 12.5.2005 in the reply filed to the supplementary claim). Respondent stated that the petitioner was deputed for preparing meals ::: Downloaded on - 15/04/2017 21:06:08 :::HCHP ...7...
for the office staff but during the month of February, 2006 he requested to be deployed as a Security Guard.
Accordingly, in view of the request having been made by .
the petitioner, he was posted as Security Guard.
7. I have heard learned counsel for the parties and have carefully perused the entire record.
8. In order to prove the contents of the claim, of petitioner examined one Sh. Jagdish Ram as PW-1, who stated that the petitioner worked with the respondent-
rt company as a Security Guard for about one and half year.
Similarly, PW-2, Vinesh Kumar also stated that he saw the petitioner working as Security Guard with the respondent in the year, 2005-2006. The petitioner himself appeared as PW-3 and stated that he was appointed in September, 2005. He also stated that in May, 2005 he was appointed as a helper and w.e.f. September, 2005 he was deputed to work as a Security Guard and he worked as such till 28th August, 2006.
9. Conjoint reading of the aforesaid statements having been rendered by the petitioner's witnesses suggest that the petitioner continued to work with the respondent from May, 2006, till August, 2006 without any break.
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10. On the other hand, respondent, Managing Director of the Company appeared himself as RW-1 and stated that petitioner was employed as daily wager on .
12.9.2005. He also stated that in February, 2006, petitioner expressed his desire to be posted as Security Guard because of his some domestic problem, accordingly, he was posted as such on the main gate. He of also stated that petitioner was asked to furnish his Himachal bona-fide certificate and register his name with rt the local employment exchange but he failed to produce the same. He also stated that on 20.2.2006, petitioner told him that he does not want to work in the factory and his wages may be paid to him. The respondent also placed on record extract of the attendance register Ex.RW1/A to Ex.RW1/F and register relating to payment of wages Ex.RW1/G to Ex.RW1/M, voucher Ex.RW1/N and a letter dated 2.3.2006 written by the petitioner Ex.RW1/O.
11. Careful perusal of the aforesaid statement having been rendered by RW-1, clearly suggests that petitioner was employed as daily wager on 12.9.2005 and continued to work as such till August, 2006. Though, respondent stated that he worked with the respondent till February, 2006 but careful perusal of the statement of ::: Downloaded on - 15/04/2017 21:06:08 :::HCHP ...9...
RW-1, nowhere suggest that after February, 2006 petitioner was not assigned the job of Security Guard.
Perusal of the extract of attendance register suggests that .
the respondent only placed on record extract of attendance register till February, 2006, whereas to negate the claim put forth on behalf of the petitioner that he worked with the respondent till August, 2006, respondent of ought to have placed on record attendance register till August, 2006. Hence, this Court is in agreement with rt findings returned by the learned Tribunal, wherein it was concluded that the petitioner has succeeded in discharging his initial onus by producing ocular evidence to suggest that he worked till August, 2006. Otherwise also perusal of the statement of RW-1, nowhere suggest that the petitioner did not report for duties after 2nd February, 2006 because RW-1 categorically stated that in February, 2006 petitioner expressed his desire to be posted as Security Guard because of his some domestic problem and accordingly he was posted as such on the main gate with the condition that he would furnish his Himachal Bona-fide certificate and register his name with the local employment exchange. Though, RW-1 stated that on 20-2-2006 petitioner stated that he does not want ::: Downloaded on - 15/04/2017 21:06:08 :::HCHP ...10...
to work in the factory but there is nothing in his statement suggestive of the fact that after 20th February, 2006 petitioner never turned up for work and his name was .
struck off from the roll of the corporation. Similarly, respondent with a view to refute the claim of the petitioner only placed on record extract of attendance register up to February, 2006, whereas they were of expected to place on record extract of attendance register upto August, 2006 to refute the contention of the rt petitioner that he worked till August, 2006.
12. Similarly, perusal of the impugned award passed by learned Tribunal suggest that respondent only placed on record cash voucher dated 2.3.2006 showing the payment of `1575/- in favour of the petitioner as full and final payment as per his own request after leaving the job vide EX.RW1/N and Ex.RW1/O. But careful perusal of the findings returned by learned Tribunal in para-16 of the impugned award suggest that documents Ex.RW1/N and EX.RW1/O were contrary to the stand taken by the respondent, wherein respondent stated that after 22nd February, 2006 petitioner never turned up for work.
13. Learned Tribunal after perusing the record detected the discrepancies in the aforesaid documents, ::: Downloaded on - 15/04/2017 21:06:08 :::HCHP ...11...
i.e. payment of wages register, perusal whereof suggested that claim was not paid after February, 2006, whereas cash voucher is dated 2.3.2006. Similarly, impugned .
award nowhere suggest that the case, if any, was set up by the respondent that the petitioner himself abandoned the job. RW-1 though stated that the petitioner expressed his intention to quit on 20.2.2006 but respondent nowhere of stated that after 20th February, 2006 petitioner himself abandoned the job and never turned up for work. It is well rt settled that onus of proving abandonment, if any, by workman is to be discharged by employer by leading cogent and convincing evidence. Moreover, there is no document suggestive of the fact that at any point of time after alleged abandonment of work by petitioner-
workman, notice, if any, was issued by the employer asking/advising petitioner-workman to assume duty, failing which action shall be taken against him. In this regard, reliance is placed upon the judgment passed by Bombay High Court in case titled Ocean Creations Vs. Manohar Gangaram Kamble 2013 SCC Online Bom 1537:2014)140 FLR 725. It is profitable to reproduce paras No.8,9 and 10 of the judgment herein:-
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"8. The legal position is also settled that 'abandonment or relinquishment of service' is always a question of intention and normally such intention cannot be attributed to an employee without adequate evidence in that behalf. This is a question of fact which is to be determined in the .
light of surrounding circumstances of each case. It is well settled that even in case of abandonment of service, unless the service conditions make special provisions to the contrary, employer has to give notice to the workman calling upon him to resume duties and where he fails to resume duties, to hold an enquiry before terminating services on such ground.
9. In somewhat similar circumstances a Division Bench of of this court comprising P.B.Sawant, J.(as he then was) and V.V.Vaze, J. in the case of Gaurishanker Vishwakarma v. Engle Spring Industries Pvt. Lted. Observed thus: rt ".....it is now well settled that even in the case of the abandonment of service, the employer has to give a notice to the workman calling upon him to resume his duty and also to hold an enquiry before terminating his service on that ground. In the present case the employer has done neither. It was for the employer to prove that the workman had abandoned the service..... It is therefore difficult to believe that the workman who had worked continuously for six to seven years, would abandon his service for no rhyme or reason. It has also to be remembered that it was the workman who had approached the Government Labour Officer with a specific grievance that he was not allowed to join his duty. It was also his grievance that although he had approached the company for work from time to time, and the company's partner Anand had kept on promising him that he would be taken in service, he was not given work and hence he was forced to approach the Government Labour Officer. In the circumstances, it is difficult to believe that he would refuse the offer of work when it was given to him before the Labour Officer...."
10. Again a learned Single Judge of this court R.M.Lodha, J( as he then was) in the case of Mahamadsha Ganishah ::: Downloaded on - 15/04/2017 21:06:08 :::HCHP ...13...
Patel v. Mastanbaug Consumers' Co-op. Wholesale & Retail Stores Ltd. Observed thus:-
"....The legal position is almost settled that even in the case of abandonment of service, the employer .
has to give notice to the employee calling upon him to resume his duty. If the employee does not turn up despite such notice, the employer should hold inquiry on that ground and then passs appropriate order of termination. At the time when employment is scarce, ordinarily abandonment of service by employee cannot be presumed. Moreover, abandonment of service is always a matter of intention and such intention in the absence of of supportable evidence cannot be attributed to the employee. It goes without saying that whether the employee has abandoned the service or not is always a question of fact which has to be adjudicated on the basis of evidence and attending rt circumstances. In the present case employer has miserably failed to discharge the burden by leading evidence that employee abandoned service. The Labour Court has considered this aspect, and, in my view rightly reached the conclusion that the employer has failed to establish any abandonment of service and it was a clear case of termination. The termination being illegal, the Labour Court did not commit any error in holding the act of employer as unfair labour practice under Item-I, Schedule IV of the MRTU & PULP Act....."
14. Similarly, in para-17 of the impugned award, learned Tribunal concluded that RW-1 in his statement stated that many people were employed by the Management after the termination of the petitioner and as such, there is complete violation of Sections 25-H and 25- G of the Act and it stands proved on record that the services of the petitioner were illegally terminated in August, 2006. Since, the petitioner worked with the ::: Downloaded on - 15/04/2017 21:06:08 :::HCHP ...14...
respondent, respondent was under obligation to afford opportunity to the petitioner for job, if, available in terms of section 25-H of the Act. In view of the aforesaid .
background, learned Tribunal though held petitioner entitled for re-engagement but denied back wages.
Interestingly, in para-19 of the impugned award, learned Tribunal while rejecting the prayer of the monetary claim of as set up in the claim petition came to the conclusion that the petitioner failed to prove as to what was due him from rt the Management and on what account. This Court finds that initially the petitioner claimed an amount of `76110/under various head and thereafter vide supplementary claim he confined his claim to `28,560/-
specifically stating therein that the amount as due as overtime, leave encashment and for wages in respect of the holidays. But learned Tribunal denied the aforesaid benefits on the ground that the petitioner has failed to prove on what basis he has worked out the amount which is being claimed by him. But fact remains that respondent nowhere disputed the aforesaid claim of the petitioner.
RW-1, Managing Director of the company while appearing as RW-1 only stated that after 20th February, 2006 petitioner told him that he does not want to work in the ::: Downloaded on - 15/04/2017 21:06:08 :::HCHP ...15...
factory and his wages were paid to him vide voucher dated 2.3.2006. Perusal of the statement of RW-1, nowhere suggest that he ever disputed the aforesaid .
monetary claim put forth on behalf of the petitioner and as such, this Court sees no justification in denying the monetary benefits claimed by the petitioner as referred hereinabove.
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15. After careful perusal of the impugned award, wherein entire evidence has been discussed, it is not rt understood on what basis learned Tribunal came to the conclusion that there is violation of Section 25-H of the Act only because careful perusal of the evidence discussed in the impugned award itself shows that there is complete violation of Sections 25-F, 25-G and 25-H. Similarly when on the basis of the evidence adduced on record learned Tribunal came to the conclusion that the termination is bad being in violation of various provision of the Act, how learned Tribunal could deny the benefit of back wages, especially when the petitioner was granted the benefits of continuity in service and seniority. The benefit of continuity in service and seniority could only be granted by the Court if it was satisfied that workman/petitioner was not allowed to work during the retrenchment period ::: Downloaded on - 15/04/2017 21:06:08 :::HCHP ...16...
despite there being sufficient work available with the management. In the present case, learned Tribunal while holding the termination of the petitioner bad came to the .
conclusion that the termination was in violation of Section 25-H of the Act, meaning thereby, learned Tribunal was convinced that after retrenchment of the petitioner new Security Guard was appointed, which clearly suggest that of at the time of termination of the petitioner, work was available but for some extraneous reasons services of the rt petitioner were terminated without issuing notice under Section 25-F of the Act. Otherwise, also this Court after perusing the evidence as has been discussed above is fully convinced that the respondent-company was unable to prove that at the time of retrenchment of the petitioner, no work was available and no persons junior to him were retained. Once, the petitioner was able to prove on record that at the time of his termination, persons junior to him were retained and even after that new security guard was appointed in violation of Section 25-H of the Act, learned Tribunal ought to have granted him benefit of back wages also. Apart from above, when learned Tribunal on the basis of the evidence held the petitioner entitled to benefit of continuity in service and seniority, there was no ::: Downloaded on - 15/04/2017 21:06:08 :::HCHP ...17...
occasion whatsoever, to deny the benefit of back wages because benefit of continuity of service could only be granted, if tribunal was satisfied that during retrenchment .
period petitioner was purposely stopped from discharging his duty despite there being availability of sufficient work.
16. In this regard reliance is placed on the judgment of the Hon' ble Apex Court in Raghubir Singh vs. of General Manager, Haryana Roadways, Hissar, 2014(6) SLR 6 (S.C.), wherein the Court held:
rt "39. Now, it is necessary for this Court to examine another aspect of the case on hand, whether the appellant is entitled for reinstatement, back wages and the other consequential benefits. In the case of Deepali Gundu Surwase V. Kranti Junior Adhyapak Mahavidyalaya (D. Ed) and Ors.,(2013)10 SCC 324:
[2013(6) SLR 642 (SC), this Court opined as under:-
"22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer employee relationship, the latter's source of income gets dried up. Not only the concerned employee, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi judicial body or Court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the ::: Downloaded on - 15/04/2017 21:06:08 :::HCHP ...18...
employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same .
emoluments. Denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the concerned employee and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments.
23. A somewhat similar issue was considered by a three Judge Bench in Hindustan Tin Works Pvt. Ltd. v. Employees of Hindustan Tin Works Pvt. Ltd. (supra)......The relief of reinstatement with continuity of of service can be granted where termination of service is found to be invalid. It would mean that the employer has taken away illegally the right to work of the workman contrary to the relevant law or in breach of contract and simultaneously deprived the workman of his earnings. If thus the employer is found to be in the rt wrong as a result of which the workman is directed to be reinstated, the employer could not shirk his responsibility of paying the wages which the workman has been deprived of by the illegal or invalid action of the employer. Speaking realistically, where termination of service is questioned as invalid or illegal and the workman has to go through the gamut of litigation, his capacity to sustain himself throughout the protracted litigation is itself such an awesome factor that he may not survive to see the day when relief is granted. More so in our system where the law's proverbial delay has become stupefying. If after such a protracted time and energy consuming litigation during which period the workman just sustains himself, ultimately he is to be told that though he will be reinstated, he will be denied the back wages which would be due to him, the workman would be subjected to a sort of penalty for no fault of his and it is wholly undeserved. Ordinarily, therefore, a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule. Any other view would be a premium on the unwarranted litigative activity of the employer. If the employer terminates the service illegally and the termination is motivated as in this case viz. to resist the workmen's demand for revision of wages, the termination may well amount to unfair labour practice. In such circumstances reinstatement being the normal rule, it should be followed with full back wages..... In the very nature of things there cannot be a strait-jacket formula for awarding relief of back wages. All relevant ::: Downloaded on - 15/04/2017 21:06:08 :::HCHP ...19...
considerations will enter the verdict. More or less, it would be a motion addressed to the discretion of the Tribunal. Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. At that stage .
the Tribunal will exercise its discretion keeping in view all the relevant circumstances. But the discretion must be exercised in a judicial and judicious manner. The reason for exercising discretion must be cogent and convincing and must appear on the face of the record. When it is said that something is to be done within the discretion of the authority, that something is to be done according to the Rules of reason and justice, according to law and not humour. It is not to be arbitrary, vague and fanciful but legal and regular.....
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24. Another three Judge Bench considered the same issue in Surendra Kumar Verma v. Central Government Industrial Tribunal-cum-Labour Court, New Delhi (supra) and observed: Plain common sense dictates that the rtremoval of an order terminating the services of workmen must ordinarily lead to the reinstatement of the services of the workmen. It is as if the order has never been, and so it must ordinarily lead to back wages too......In such and other exceptional cases the court may mould the relief, but, ordinarily the relief to be awarded must be reinstatement with full back wages. That relief must be awarded where no special impediment in the way of awarding the relief is clearly shown. True, occasional hardship may be caused to an employer but we must remember that, more often than not, comparatively far greater hardship is certain to be caused to the workmen if the relief is denied than to the employer if the relief is granted."
(Emphasis supplied by this Court)"
(pp.23-25)
17. In the aforesaid background, this Court sees no Justification in the order passed by the learned Labour Court, whereby respondent-workman has been denied benefit of back wages from the date of retrenchment i.e. 27.8.2006 despite holding him entitled to benefit of continuity of service and seniority.::: Downloaded on - 15/04/2017 21:06:08 :::HCHP
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18. Consequently, in view of the detailed discussion made hereinabove, the present petition is .
allowed and the petitioner is held entitled to the full back wages alongwith 6 % interest per annum.
Accordingly, the present petition is disposed of alongwith pending application(s), if any.
of
(Sandeep Sharma )
August 29, 2016 Judge
(shankar) rt
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