Surender v. Presiding Officer, Industrial Tribunal-cum-labour Court, Hisar
2001-08-28
S.S.NIJJAR
body2001
DigiLaw.ai
Judgment S. S. NIJJAR, J. 1. This petition under Article 226/227 of the constitution of India seeks issuance of a writ of certiorari quashing the Award dated July 20, 1999, published on February 14, 2000, given by the Presiding Officer, Industrial Tribunal cum Labour Court, Hisar (hereinafter referred to as the Labour Court ). 2. It was pleaded by the petitioner (hereinafter referred to as the workman) before the Labour Court that he had worked with respondent No.3 on daily wages from december 1990 to June 1991 and from October 1991 to December 1992. In the months of July to September 1991, he had worked with respondent No.2. It was further pleaded that respondents No.2 and 3 are under the administrative control of respondent No.1. Before the Labour Court, respondent No.1 was the Chief Superintendent, Government Live stock Farm, Hisar, respondent No.2 was the sector Superintendent-I, Government Live stock Farm, Sector-I, Hisar and respondent no.3 was the Deputy Director, Sheep breeding Farm, Sirsa Road, Hisar. Since both the employers were under the administrative control of Chief Superintendent, Government i live Stock Farm, the workman claimed that all the period of work have to be clubbed together to calculate the number of days he actually worked. According to the workman, his services were terminated on December 31, 1991 without complying with the mandatory provisions of Sec.25-F and Sec.25-G of the Industrial Disputes Act (here in afterreferred to as the Act ). He, therefore, served a demand notice on the basis of which the industrial dispute was referred to the Labour court under Sec.10 (l) (c) of the Act. The reference dated May 22, 1997 reads as under: "whether the termination of the service of surender is justified and in order? If not, to what relief he is entitled to?" Respondents No.2 and 3 filed separate written statements before the Labour Court. It was stated that they have nothing to do with labourers or daily wagers of each other. They engaged their own separate labourers on daily wages on their respective Muster Rolls as per availability of the daily wages and as per availability of the work at the site. Therefore, it was stated that workman used to come to the work and used to leave the job on his own. There was no question of his transfer from one respondent to the other.
Therefore, it was stated that workman used to come to the work and used to leave the job on his own. There was no question of his transfer from one respondent to the other. He had worked for only 199 days during the period from december 1990 to January 1992 with respondent No.3 and only 78 days during the intervening period from July 1991 to september 1991 with respondent No.2. After completion of the pleadings, the Labour Court framed the following issues: "1. Whether termination of the service of surender is justified and in order? If not, to what relief he is entitled to?2. Whether respondents concern is not industry?3. Whether services of workman Surender with the two respondents is not clubbable?4. Relief. " 3. The Labour Court has decided issues no.1 and 3 together. After noticing the evidence, it has been observed as follows: "simply because two respondents are under the administrative control of respondent No.1, it (sic) is not at all sufficient to prove that his service with the two respondents, is clubbable. The two respondents may be getting sanction for engaging their labourers from respondent No.1, but the sanction, if any, was not joint nor in the name of particular daily wagers. Admittedly, there is also no written order of the transfer to surender from one respondent to the other. Therefore, services of Surender with the two respondents would be deemed to be quite different, distinct and not clubbable" 4. Thereafter, the Labour Court further observed that even if the working days of the workman with the two respondents are clubbed, the total working days would only be 239 days, still less than minimum 240 days in preceding year. Therefore, the workman was not entitled to the protection of Sec.25 of the Act. Learned counsel for the petitioner submitted that the aforesaid findings of the labour Court are contrary to the established law that when a workman works under a common employer, then the period spent in different Sections cannot be segregated. All the periods of employment have to be clubbed together. In respect of this submission, learned-counsel relied on a judgment of this court in Civil Writ Petition No.8553 of 1995, decided on December 13, 1995 namely Sector superintendent Government Live Stock Farm, hisar V/s. Rajinder son of Gopi Ram.
All the periods of employment have to be clubbed together. In respect of this submission, learned-counsel relied on a judgment of this court in Civil Writ Petition No.8553 of 1995, decided on December 13, 1995 namely Sector superintendent Government Live Stock Farm, hisar V/s. Rajinder son of Gopi Ram. This writ petition pertains to the same employer wherein the Labour Court after clubbing the periods of employment directed the reinstatement of the workman. Thus, the Management, which is the same as the one in the present case, challenged the award by filing the writ petition. Same argument was raised before this Court. It was submitted that the workman therein remained firstly under the employment of Sector superintendent-I, Government Live Stock farm and thereafter under the Deputy Director, sheep Breeding Farm. It was submitted that the two organisations are independent of each other. Noticing the aforesaid argument, it has been held as follows: "we are not impressed with the argument of the learned counsel for the petitioner in as much as both the aforesaid organisations were under the control of the Chief superintendent, Government Live Stock farm which is admittedly an organisation under the control of the State of Haryana. It has been brought to our notice that the aforesaid two officers were under the direct control of the Chief Superintendent, government Live Stock Farm, Hisar. " 5. In view of the observations made by this Court in the case of Sector Superintendent, government Live Stock Farm, Hisar (supra), it has to be held that the Labour Court has committed an error of law apparent on the face of the award by not clubbing the periods of work of the workman with respondents No.2 and 3. If the periods had been clubbed together even according to the award, the workman would have completed 239 days. However, if the calendar year is calculated from January 1991 to January 1992, the workman would have worked for a period of 263 days. Therefore, the findings of fact recorded by the labour Court are patently erroneous. The workman having completed more than 240 days in a year preceding the termination of service, was entitled to the protection of sec. 25-F of the Act. Admittedly, no notice or any pay in lieu of notice was given to the workmen prior to the order of termination. Consequently, the order of termination is rendered void ab initio.
The workman having completed more than 240 days in a year preceding the termination of service, was entitled to the protection of sec. 25-F of the Act. Admittedly, no notice or any pay in lieu of notice was given to the workmen prior to the order of termination. Consequently, the order of termination is rendered void ab initio. The workman was, therefore, clearly entitled to reinstatement in service with all consequential benefits. 6. In view of the above, the impugned award (Annexure P-3) dated July 20, 1999 given by the Labour Court, is, hereby quashed and set aside. The workman is directed to be reinstated into service with continuity of service and full back wages. 7. Petition is allowed. No costs.