Punjab-Haryana High Court
Smt. Chinti Devi vs Presiding Officer on 21 March, 2013
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CWP No.6757 of 2012
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CWP No.6757 of 2012
Date of Decision: 21.03.2013
Smt. Chinti Devi
..... Petitioner
Versus
Presiding Officer, Industrial Tribunal-cum-
Labour Court, Distt. Panipat and another
..... Respondents
CORAM:- HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr. Naveen Daryal, Advocate,
for the petitioner.
Ms. Tanisha Peshawaria, DAG, Haryana.
1. To be referred to the Reporters or not? Yes
2. Whether the judgment should be reported in the Digest? Yes
RAJIV NARAIN RAINA, J.
This Court is flooded with labour litigation involving the Forest Department, Haryana as witnessed in the recent past and having dealt with many writ petitions of late, this Court is veering to the view that the law of the jungle prevails in that Department. There appears to be large scale exploitation of marginalized labour in plantation, weeding, hoeing and culture operations in forest areas across the State. Labour is exploited for many years and then the doors are shut on them forcing them to resort to the tardy process of industrial adjudication which takes many years. This case is no exception. It appears that Sections 25-F, 25-G & 25-H of the Industrial Disputes Act, 1947 have lost meaning in the Forest Department in the State of Haryana. Insensitive caretakers of public office and their field CWP No.6757 of 2012 -2- representatives ensconced in the almost impenetrable shell of Article 311 of the Constitution treat labour as expendable fodder without guilt or remorse, behaving like private entrepreneurs with no social obligations. The basic primary document, the muster rolls, are either fudged or not produced in evidence or are shown selectively to the Court making the task of adjudication a dreadful exercise. It is time to sensitize those who are responsible for implementing the provisions of the said Act and other sister labour laws of the devastating effect of their actions and in-actions, deliberate or otherwise, it is hard to say.
In the written statement filed by the Forest Department before the Labour Court, there is a litany of defenses starting with the muster roll system itself found increasingly becoming ineffective and uneconomical. In 1996 it is said the Forest Department thought of switching over from muster roll system to another system of working. In order to evolve a new system, which was more efficient, a draft policy was thought out to switch over to piece rate contract system. A tall and high sounding defense was taken in the preliminary objections in this case with the written statement filed before the Tribunal in Paragraphs 1 to 7 which deserve to be reproduced:-
"1. The Forest Department has been carrying out various activities as per constitutional mandate enshrined under the Directive Principles and the Fundamental Duties (Article 48 A of Part IV and Article 51 A (g) of Part IV A) of the Constitution of India to protect and improve Forests, Lakes, Rivers and Wildlife of the country in consonance with National Forest policy, 1988 ensuring environment stability and maintenance of ecological balance including atmospheric equilibrium which are vital for sustenance of all life forms like humans, plants and animals and with no profit motive or a desire to generate income as the purpose of industrial activity.
2. That the Forest Department has to depend on State Government CWP No.6757 of 2012 -3- and external agencies for financial help. Most of the activities are being done under various projects financially aided by Government of India, European Union, World Bank etc. All these project/financially aided programmes are only for a particular period.
3. To cope with the financial burden on the State economy and as per the changing requirement of time, restructuring exercise is being undertaken by the Government in all the departments even at the Central government level, to downsize/right size all cadres of employees. In order to rationalize the number of employees and to minimize the burden of State Exchequer, Government has decided to downsize the cadre of employees of its departments and also decided to get the seasonal work done on contract basis by outsourcing the available work to specialized local agencies. Therefore, with a view to adopt a system which is more economical, Government approved the policy of piece rate contract system vide letter dated 6.7.2000 and decided to get all the forestry work done on contract. However, the financial powers of the forest officers were under revision, therefore, the policy of piece rate contract could not be implemented. The Govt. vide notification dated 30.5.2003 revised the financial powers of the forest officers. Copy of notification dated 30.05.2003 is annexed as Annexure R-2.
4. The Government vide letter dated 22.10.2003 directed to implement the policy of piece rate contract w.e.f. 1.12.2003. Therefore, in order to introduce the system, it was decided to retrench all the labourers working in the Department whether on daily wages basis or on regular basis as after the introduction of contract system, no work will be available with the Department for them. Copy of letter dated 22.10.2003 is annexed as Annexure R-3.
5. That the Hon'ble Supreme Court of India while dealing with the cases of regularization of daily wage employees of Haryana State in Piara Singh's case held that it is the prerogative of the executive to abolish or create the posts. Therefore, the petitioner has no right to ask for regularization when the Govt. decided to retrench all the labourers (daily wagers as well as regular) working in the Forest Department and to outsource the work to specialized local agency by inviting tenders from empanelled contractors/Village Forest Committee/Hill Resource Management Society etc.
6. That in order to retrench the labourers as per law, it was decided to issue retrenchment notice and to give compensation before dispensing with their services. Therefore, there is nothing illegal in retrenching the CWP No.6757 of 2012 -4- services of labourers (whether daily wages or regular). It is also pertinent to mention that regular labourers are also being retrenched by abolishing their posts who were regularized. It is also to mention that Forest Department has already abolished 541 posts of regular establishment of various categories of employees.
7. That so far the question of violation of Contract (Regulation & Abolition) Act, 1970 is concerned, it is submitted that the provisions of Act of 1970 are not applicable in the present case as the department has not been engaging labour on contract basis rather various forestry works are being out sourced to local specialized agencies for execution. Therefore, even for the sake of arguments if it is presumed that provisions of Section 7 of Act of 1970 are applicable then the question of registration would only arise when the concerned DFO (employer) prepared a panel of contractors through whom work is to be got executed because while applying for registration under the Act of 1970, the list of empanelled Contractors is to be annexed. Therefore, the allegations of violation of Act of 1970 does not arise. It is necessary to mention that as already stated as per Piece Rate Contract Policy, each DFO being independent unit has its own budget & targets, therefore, the concerned DFO would prepared a list of contractors by inviting offers in the newspaper and invite tenders for the work from such empanelled contractors." (emphasis added) It appears that the tall claims made above have not percolated down to the officers in charge of compliance of regulatory laws designed in their traditional concepts for the benefit of the unorganized weaker sections amongst the lowliest of people by the law makers in 1947, the year India won freedom only to later enslave them, as the drama unfolded and unfolds still. The much hyped Piece Rate Contract Policy dated 6.7.2000 pitchforked into action on 22.10.2003 mentioned in the above extract remains in blue print and on paper. These labour laws were intended to be beneficial pieces of legislation for the poor and the downtrodden who are largely grouped together loosely called daily wagers. Even the highest and the mightiest in the land are really only daily wage earners in white collars CWP No.6757 of 2012 -5- whitened everyday but at considerable expense and pleasure. The Tribunals across India were designed to be special courts manned by experienced Presiding Officers trained in the nuances of a special kind or species of service law to protect people who could not transform themselves from the chrysalis of contract to be the butterflies of status, of the kind protected by Article 311 of the Constitution of India. A perception has grown over the years among stakeholders that postings to Labour Courts and Industrial Tribunals are unwelcome. This is unfortunate. The Industrial Disputes Act, 1947 was meant to lend status to contract labour and that disputes are handled with care and sensitivity. In this process daily wagers have become perpetual losers. But history has it that the winners take it all. I dare say the Forest Department would shut down but for the blood, sweat and tears of the petitioner and her like engaged either directly or through specialized local agencies by inviting tenders from empanelled contractors/Village Forest Committee/Hill Resource Management Society etc. Here is a case, an example of everyday exploitation of a daily wage earner who had served from October 1995 to July 2004 though the period is partially disputed by the management. But its witness MW-1 Satish Kumar during cross-examination admitted that the petitioner had worked with the respondent continuously during the period from 1995 to 1998. He further admitted that the record pertaining to years 1995 to July 2004 was not brought in Court which would have clearly depicted the position by looking into the attendance register, muster rolls and the payment register. In Paragraph 13 of the award, the Labour Court has recorded as follows:-CWP No.6757 of 2012 -6-
"13. It is proved on record that the workman has been illegally and unlawfully terminated from the service after completion of about five years of service which was admitted by the respondent. Hence, the workman is very much entitled to the relief against the respondent. Keeping in view the entire circumstances, the court is of the considered opinion that ends of justice would meet if instead of passing an award of reinstatement in service, the workman is entitled to be paid a lump sum compensation of Rs.75000/- to be paid to the workman by the management. However, the workman shall be paid the said amount within three management. However, the workman shall be paid the said amount within three months from today by the management, failing which the management will be liable to pay simple interest @9% per annum from the date of passing of this award till the date of payment. Hence, issues No.1 is decided accordingly."
The finding is that the petitioner had served for five years. The State of Haryana has not assailed the award before this Court. The position is therefore admitted. Having returned a finding of breach of law in terminating the services of the petitioner, the Labour Court has not found this a fit case for reinstatement and back wages but has instead passed award giving lump sum compensation of Rs.75,000/- depriving her of future livelihood on micro wages earned periodically. Relief has been denied principally for the reason contained in Paragraph 12 of the award in which it is recorded that there is no averment in the testimony of the workman that she was not gainfully employed. In absence of such an averment, the Labour Court has denied relief claimed and limited the compensation to Rs.75,000/-. The reason assigned to deny major relief is not tenable. At any rate, even if this case were one of compensation in lieu of reinstatement Rs 75,000/- would be far too stingy for 5 years service. In BSNL v. Man Singh, (2012) 1 SCC 558 the Supreme Court denied reinstatement but awarded Rs 2 Lacs instead as reasonable compensation for service rendered as a daily CWP No.6757 of 2012 -7- wager for less than 2 years. The BSNL was directed to pay the aforesaid amount with 12% interest running on the compensation awarded from 1986. In this case Rs 75,000/- would seem a far cry.
In response to the writ petition, the Divisional Forest Officer, Karnal has filed written statement. A list of working days of the petitioner Chinti Devi has been placed at Annexure R-1. Reliance is also placed on the judgment of the Supreme Court in Batala Cooperative Sugar Mills v. Sowaran Singh, (2005) 8 SCC 481 which was a case which dealt with seasonal work in a sugar mill depending on the crushing season for its running. It is urged that workmen engaged on a casual basis on daily wages for specific period or specific work ought not to be granted reinstatement in case of violation of Section 25-F of the Act. It is true that violation of Section 25-F of the Act does not lead to automatic reinstatement and various factors would have to be kept in mind by the industrial adjudicator as what is just and reasonable compensation in each case; see Assistant Engineer, Rajasthan Dev. Corp. & Anr vs. Gitam Singh, 2013 STPL(Web) 84 SC where Rs 50,000/- as compensation in lieu of reinstatement was found justified by the Supreme Court for 8 months of daily wage service.
The chart (R-1) filed for the first time before this Court I think ought not to be entertained since it was not part of the record before the Labour Court. At any rate, the chart (R-1) flies in the face of testimony of MW-1 Satish Kumar, the management witness who stated on oath that the workman served continuously from 1995 to 1998 while at the same time deposing that the record from 1995 to July 2004 was not produced. The Labour Court had noticed the contradiction in Paragraph 11 of the award CWP No.6757 of 2012 -8- and observed that the affidavit-in-evidence and the cross-examination that followed are at variance. The management has obviously more to hide in this case than to show under the obtrusive grandeur of the preliminary objections. In any event, this Court is bound to notice only the testimony recorded in Court. The tall claims made in the written statement filed before the Labour Court are only beatific incantations not found in ground reality.
I, therefore, do not find that the Labour Court was just in the exercise of its discretion in awarding only Rs.75,000/- as compensation. If it took six years for the reference to be answered then we cannot blame the petitioner who made her demand for justice without delay. The demand notice is dated 16.11.2004. She has alleged therein that she had been working since October 1995 in the Mangalpur Nursery under the control and supervision of Mohinder Pal, Guard and Raj Pal, Ranger Officer. Those were real people she named and had laboured under. She had claimed violations of the mandatory provisions of Sections 25-F, 25-G & 25-H of the Act simultaneously. No finding has been returned insofar as Sections 25-G & 25-H are concerned by the learned Labour Court. Therefore, that issue should not detain this Court. However, for violation of Section 25-F, since no notice, notice pay or retrenchment compensation was paid and thus by following the law laid down by the Supreme Court in Harjinder Singh vs. Punjab State Warehousing Corporation, (2010) 3 SCC 192, Anoop Sharma vs. Executive Engineer, Public Health Division No.1, Panipat (Haryana), 2010 (3) SLR 663 and Devinder Singh vs. Municipal Council, Sanaur, (2011) 6 SCC 584 and the Full Bench decision of this Court in Hari Palace, Ambala City vs. The Presiding Officer, Labour Court & another, ILR 1979 CWP No.6757 of 2012 -9- (P&H) 243, I find no reason necessitating departure in this case from awarding reinstatement of the petitioner with back wages.
For the foregoing reasons, this petition is allowed. The impugned award of the Labour Court dated 27.12.2011 (P-3) is set aside. The petitioner would be reinstated to serve as a daily wager even if it operated through 'specialized local agencies' or 'empanelled contractors/Village Forest Committee/Hill Resource Management Society etc.' but with the overall responsibility of the respondent department. Arrears of daily wages be now calculated and offered to her within three months from the date of receipt of the certified copy of this order. The Forest Department will remain at liberty to fix responsibility and recover arrears of daily wages payable to the petitioner from those found responsible for not complying with the mandatory provisions of the Industrial Disputes Act, 1947 and for violating the Government policy as at paragraph 6 of the written statement filed before the Labour Court reproduced above and underlined for emphasis, thereby defeating the lofty claims made in the written statement to deny relief, so that ultimately the public exchequer is not unnecessarily burdened. Costs of litigation are quantified at Rs 10,000/- having regard to expenses incurred by the petitioner before the Labour Court and this Court and would be paid to the petitioner in addition.
(RAJIV NARAIN RAINA) JUDGE 21.03.2013 manju