Punjab-Haryana High Court
The Executive Engineer vs Surinder And Another on 25 September, 2013
Author: Rajive Bhalla
Bench: Rajive Bhalla
LPA No.367 of 2013 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
LPA No.367 of 2013(O&M)
Decided on: 25.09.2013
The Executive Engineer, Operation Division,
UHBVNL, Narwana, Jind ..... Appellant
VERSUS
Surinder and another ..... Respondents
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MR. JUSTICE DR. BHARAT BHUSHAN PARSOON
Present: Mr.D.S.Nalwa, Advocate, for the appellant
Mr.J.K.Goel, Advocate, for respondent No.1.
*******
RAJIVE BHALLA, J. (ORAL)
By way of this order, we shall dispose of LPAs No.367, 368, 370, 446 of 2013 filed by the management, and LPAs No.264, 380 and 571 of 2013, filed by the workmen. Facts are being taken from LPA No.367 of 2013.
Counsel for the appellant-management submits that the award passed by the Industrial Tribunal-cum-Labour Court, Hisar (hereinafter referred to as the Labour Court), declining reinstatement and instead directing payment of compensation, on the ground that induction of the workman, into service was admittedly contrary to rules has been wrongly set aside by ordering reinstatement with payment of back-wages, though from the date of award. The LPA No.367 of 2013 [2] workmen having admitted, during cross-examination that they were employed without any interview, appointment letter etc., the reinstatement is not warranted. The workmen were employed as part time Malis (Gardeners). The fact that they may have worked for 7 to 11 years, is irrelevant as a workman has admitted in his cross- examination, that his appointment was without any advertisement, interview or any other legal process. This apart, the workmen are not entitled to reinstatement as posts against which they were working were abolished by merger. It is further argued that mere violation of Section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as the 'Act') does not entail automatic reinstatement. In the cases of a daily rated worker, the general norm is compensation but only after considering the mode and manner of appointment, the nature of employment and the length of service. Counsel for the appellant-management places reliance upon judgment of the Hon'ble Supreme Court in "Asst. Engineer, Rajasthan Dev. Corp. and Anr. V/s Gitam Singh", 2013 (2) SCT 30. Another argument pressed into service is that onus to prove that they were not gainfully employed during the relevant period lay upon the workmen. The workmen have not proved that they were not gainfully employed during the relevant period. The appeals filed by the management may be allowed, the impugned order may be set aside and order passed by the Labour Court may be restored.
LPA No.367 of 2013 [3]
Counsel for the workmen submits that counsel for the appellants-management has advanced arguments as if the writ petition was filed by the management. The writ petitions were filed by the workmen impugning denial of reinstatement and back-wages. The finding by the Labour Court that services of the workmen were terminated in violation of Section 25-F of the Act, was not challenged by the management and has, therefore, attained finality. The mere fact that the workmen were daily-wagers, is irrelevant as they have all rendered 7 to 11 years of service. The management did not raise any plea, in reply to the claim petition, that appointments were contrary to rules and regulations or were in any manner violative of Articles 14 and 16 of the Constitution of India. The admission during cross-examination that interview was not conducted, is irrelevant as the management has not pleaded in its reply to the claim petition that appointment of the workman was illegal. It is further submitted that even if factors referred to in the judgment in Asst. Engineer, Rajasthan Dev. Corp. and Anr. V/s Gitam Singh's case (supra) are taken into consideration, the impugned order cannot be faulted as the workmen had worked for periods of 7 to 11 years. It is further submitted by reference to Annexure P-8, appended with the writ petition, that the management has reinstated similarly situated employees who filed writ petitions, but in cases of employees who approached the Labour Court, the LPA No.367 of 2013 [4] management is contesting the matter.
As regards the appeals filed by the workmen, it is contended that back-wages should have been granted from the date of termination and not from the date of award as no fault can be found with the workmen and while filing statement of claim and deposing before the Labour Court, the workmen have pleaded and deposed that they were not gainfully employed during the relevant period.
We have heard counsel for the parties, perused the impugned order, the award and find no reason to accept the appeals filed by the management or the appeals filed by the workmen.
The findings recorded by the Labour Court that termination of services, were in violation of Section 25-F of the Act, have not been challenged by the management and have thus attained finality. The only dispute is whether Labour Court award denying reinstatement and instead awarding compensation should have been modified by ordering reinstatement. The Labour Court had denied reinstatement to the workmen on the ground that it was admitted during cross-examination that appointment was not preceded by an interview, appointment letter etc. While setting aside this finding, the learned Single Judge has held that the Labour Court failed to discern that in the reply filed to the claim petition, no such averment has been made by the management. A relevant extract from the LPA No.367 of 2013 [5] impugned order, reads as follows:-
"On consideration of the matter, I do not find any merit in the contention raised by learned counsel for respondent no.1. There was no plea raised by it that the employment of the petitioner was not in accordance with rules or norms for public appointment. In the absence of any material, which was required to be pleaded and set up by respondent no.1 at the first instance, the learned court below could not come to the conclusion that the said appointment was back door entry and was not in accordance with law. Such a finding has to be negated, as it is unsustainable in law, in view of law laid down by Hon'ble the Supreme Court in the above mentioned decisions.
In the present case, the facts reveal that the petitioner had been in continuous employment for more than six years, when his services were terminated. Findings recorded to that effect have not been challenged by the management. The aforesaid decisions are fully applicable in the facts and circumstances of the present case."
A perusal of the above extract reveals that the management had not pleaded that employment of the petitioner/workmen was contrary to rules or regulations. It is true that an admission is the best evidence of a fact but it is equally true LPA No.367 of 2013 [6] that evidence that is beyond pleadings cannot be considered or relied by a Court or a Tribunal. Counsel for the appellant-management despite our request to refer to any averment, in the reply filed before the Labour Court, that employment of the workmen was contrary to rules etc., is unable to point out any such plea or averment. This apart, the management has not produced any material to prove that appointments were contrary to rules but has in fact admitted that the workmen were employed against existing posts while taking a stand that the posts against which the workmen were appointed have been merged/abolished. We, therefore, find no error in the finding recorded in the impugned order.
The argument that violation of Section 25-F of the Act, does not entail automatic reinstatement, is too well known for us to dialate upon but the question that arises is whether a daily rated workman cannot be reinstated, whatever be the merits of the case. The Hon'ble Supreme Court while considering a similar controversy relating to relief to be granted to a daily rated workman, has in Asst. Engineer, Rajasthan Dev. Corp. and Anr. V/s Gitam Singh's case (supra), laid down certain parameters. A relevant extract from the judgment, reads as follows: -
"26. From the long line of cases indicated above, it can be said without any fear of contradiction that this Court has not held as an absolute proposition that in cases of LPA No.367 of 2013 [7] wrongful dismissal, the dismissed employee is entitled to reinstatement in all situations. It has always been the view of this Court that there could be circumstance(s) in a case which may make it expedient to order reinstatement. Therefore, the normal rule that dismissed employee is entitled to reinstatement in cases of wrongful dismissal has been held to be not without exception. Insofar as wrongful termination of daily-rated workers is concerned, this Court has laid down that consequential relief would depend on host of factors, namely manner and method of appointment, nature of employment and length of service. Where the length of engagement as daily wager has not been long, award of reinstatement should not follow and rather compensation should be directed to be paid. A distinction has been drawn between a daily wager and an employee holding the regular post for the purpose of consequential relief."
A perusal of the above extract reveals that there is no prohibition to reinstate a daily rated worker but while considering relief to be granted to a daily-rated worker, the following factors are to be considered: (a) manner and method of appointment (b) nature of employment, and (c) length of service, and where length of engagement as daily-wager has not been long, award of reinstatement LPA No.367 of 2013 [8] should not follow and rather compensation should be paid to such a workman.
Admittedly, the workmen were appointed against existing vacant posts and have worked for varying periods from 7 to 11 years. The management has not pleaded or adduced any material before the Labour Court, before the learned Single Judge or in this appeal that induction of the workmen into service was illegal. The learned Single Judge has, therefore, rightly set aside that part of the award of the Labour Court awarding compensation and instead directed reinstatement. It would be appropriate to point out that the management has reinstated four workmen subject to the outcome of the appeal and other similarly situated workmen who filed writ petitions without challenging their reinstatement any further.
The argument relating to abolition of post, has to be rejected as the so called abolition of post was actually a merger of posts and no material has been placed before us to prove as to which post was merged and which survived. Even otherwise, this argument is not available to the management as the management has not challenged the finding recorded by the Labour Court relating to illegality of the termination and is raised in an attempt to persuade us to deny reinstatement and back-wages to the workmen, who have been harassed for the last more than one and a half decade.
The appeals filed by the workmen are devoid of any merit as LPA No.367 of 2013 [9] discretion exercised by the learned Single Judge while reinstating them and limiting back-wages to the date of the award, cannot be said to be illegal, arbitrary or violative of any principle of law.
As regards the plea that onus to prove that the workmen were not suitably employed during the relevant period, suffice it to state that the workmen pleaded that they were not suitably employed during the relevant period. Even otherwise, back-wages have been confined to the date of the award.
In this view of the matter, while affirming order dated 12.09.2012, passed by the learned Single Judge, the appeals filed by the management and the workmen are dismissed.
[ RAJIVE BHALLA ]
JUDGE
25.09.2013 [ DR. BHARAT BHUSHAN PARSOON ]
shamsher JUDGE
Singh Shemsher
2013.11.07 16:55
I attest to the accuracy and
integrity of this document
Chandigarh