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2000 DIGILAW 1256 (PNJ)

Sher Singh v. State Of Punjab

2000-10-17

J.S.NARANG, S.S.SUDHALKAR

body2000
Judgment S. S. SUDHALKAR J. 1. By this writ petition, the workman has challenged the award of the Labour Court dated january 22, 1999, vide which the reference was answered against him. The case of the petitioner is that he joined the service of the respondent-management on November 1, 1991, and worked as labourer/chowkidar. His services were terminated on August 1, 1992. He further contended that he completed 240 days in the last calender year, prior to termination of his services. New appointment was made by the management after his termination and therefore, this is violation of the provisions of Sections 25-F, 25-G and 25-H of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act" ). The respondent-management has taken up a stand that the appointment of the petitioner was made on contingency basis and the payment was also made from the said fund and that there was no relationship of master and servant between them. Moreover, according to them, the respondent is not an "industry". They contended that the petitioner joined service on november 25, 1971, and not on November 1, 1991. It is further contended that there is no termination order passed on August 1, 1992, and that the petitioner never worked after June 30, 1992. It is further contended that the petitioner has only worked for 218 days. 2. We have heard learned counsel for the parties. In paragraph 6 of this writ petition, it is mentioned by the petitioner that document mark "a" shows that he was on duty on July 15, 1992. Mark "a" is produced in this writ petition at annexure P4. It is a letter written by one Gurcharan Singh dated July 2, 1992. It has been forwarded to Prof. Jagsir Singh for report. Thereafter, it is signed by the officer-in-charge class IV on the same date and forwarded to the petitioner, Kapur Singh, Pal Singh and nachhattar Singh for noting. According to the letter, ever since the closure of the gate of the colony, no chowkidar has been posted at the gate to open the gate and other purposes and the stray animals are found in the ground throughout the day which enter the residence of Gurcharan Singh and damage the plants. According to the letter, ever since the closure of the gate of the colony, no chowkidar has been posted at the gate to open the gate and other purposes and the stray animals are found in the ground throughout the day which enter the residence of Gurcharan Singh and damage the plants. In the note below the letter, it has been mentioned that certain personnel will be posted on particular duties and petitioner is posted at gate permanently from 4.00 p. m. to 8.00 p. m. and all the persons are directed to comply with their duties. This note, according to the petitioner, bears the endorsement to the petitioner and others and the endorsement of the petitioner is of July 15. Relying on this document, learned counsel for the petitioner argued that the services of the petitioner could not have been terminated with effect from the earlier date, i. e. , June 30, 1992, as contended by the respondents. Regarding this letter, in paragraph No.6 of the petition, the para-wise reply is very vague. It is as under: "6. In reply to this paragraph, it is submitted that the learned Labour Court has given the award after considering all the evidence and facts on file and therefore, the award is a valid one and not liable to be set aside. " 3. There is no denial to the averment that the petitioner had made an endorsement on the letter, as alleged. The Labour Court has dealt with this in paragraph No.7 of the award. It has observed that when WW-1 Pal Singh was examined, he has not stated on oath regarding the period the petitioner had worked with the management and he has not clearly stated as to and by whom mark "a" has been signed and even if the contention of the petitioner is taken to be correct, the fact that it was got noted on july 15, 1992, goes against him as he has not been able to explain as to why he could not note the same prior to this date. We do not agree with the view taken by the Labour Court. If the petitioners service was already terminated on july 15, 1992, there was no need to get the instructions noted on that date. 4. We do not agree with the view taken by the Labour Court. If the petitioners service was already terminated on july 15, 1992, there was no need to get the instructions noted on that date. 4. Another interesting point in this case is that there is a letter from the director to the principal of the respondent- institution to the effect that sanction is given to employ the labourers provided they are not allowed to work for 240 days. This letter is dated november 25, 1991 (annexure P-2 ). Annexure p-3 is a letter dated July 1, 1992, which mentions termination of the petitioner with effect from June 30, 1992 (afternoon ). In the letter, it is mentioned that the service is terminated in compliance with the instructions issued from time to time. This shows that the respondents were conscious enough to see that the workman did not complete 240 days of service. In the case of Kapurthala Central co-operative Bank Ltd. V/s. Presiding Officer, labour Court, 1984 (65) FJR 95 cited by counsel for the petitioner, it has been held that retrenchment of a workman whose conduct and work was satisfactory, close to his attaining a years continuous service in order to frustrate his attaining rights under Chapter V-A of the act amounts to an unfair labour practice. 5. In view of the evidence, there appears to be no reason to disbelieve the petitioners say that he was terminated on August 1, 1992. The fact that annexure P-4 bears his signature of date July 15, assumes importance. 6. The Labour Court has gone to consider the motive of the management. It has observed as under: "there is no motive established on the file as to why the management should depose against the witness in an arbitrary manner in this case. Even, in his statement, recorded in Court, the workman has not stated that his service was terminated only to see that he does not complete 240 days. 7. We do no find any substance in these observations. It is also not shown that the petitioner was gainfully employed during the period of forced unemployment. Considering from all the angles, the say of the petitioner that he had worked for more than 240 days has to be accepted. This writ petition therefore, deserves to be allowed. 8. As a result, this petition is allowed. It is also not shown that the petitioner was gainfully employed during the period of forced unemployment. Considering from all the angles, the say of the petitioner that he had worked for more than 240 days has to be accepted. This writ petition therefore, deserves to be allowed. 8. As a result, this petition is allowed. The award of the Labour Court is set aside and the petitioner is ordered to be reinstated in service with full back wages from the date of demand notice.