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2004 DIGILAW 89 (PNJ)

State Of Punjab v. Mohinder Singh

2004-01-28

G.S.SINGHVI

body2004
Judgment G. S. SINGHVI, J. 1. Feeling dissatisfied with the award dated december 22, 1983 (Annexure P1) passed by presiding Officer, Labour Court, Amritsar (respondent No.2) in Reference No.500 of 1979, the petitioner has invoked jurisdiction oi this Court under Article 226 of the Constitution of India with the prayer that the impugned award may be quashed. 2. A perusal of the record shows that respondent No.1-Mohinder Singh (hereinafter described as the workman) was appointed as t-Mate in PWD Irrigation and Power department on June 1, 1975. His service was terminated some time in 1977 on the ground that he had remained absent from duty and had misbehaved with one Jatinder Kumar S. O. and staff members. Along with the order of termination of service, he was paid one months salary in lieu of notice in terms of Section 25-F (a) of the Industrial Disputes Act,, 1947 (for short, the Act ). He served demand notice upon the employer, but failed to persuade the latter to take him back in service. On receipt of the failure report, the Government of Punjab vide notification dated August 27, 1973 referred to dispute to the Labour Court, amritsar. 3. In his statement of claim, the workman pleaded that the termination of his service was vitiated due to violation of the rules of natural justice and Sec.25-F of the Act, inasmuch as the employer did not hold any enquiry into the allegation of misconduct and he was not paid retrenchment compensation. 4. In their written statement, the petitioners pleaded that the Irrigation department was not an industry and that the action taken in the backdrop of the misconduct committed by the workman was legal and justified. 5. On the pleadings of the parties, respondent No.2 framed the following issues: 1) Whether the respondent department is not covered under the definition of Industry? 2) Whether termination of the services of workman concerned justified and in order? 3) Relief. 6. Respondent No.2 decided both the issues against the employer and ordered reinstatement of the workman with continuity of service and back wages. The relevant portions of the award passed by respondent no.2 read as under: "issue No.1.6. This issue was not pressed by the learned representative of the respondent at the time of final arguments. 3) Relief. 6. Respondent No.2 decided both the issues against the employer and ordered reinstatement of the workman with continuity of service and back wages. The relevant portions of the award passed by respondent no.2 read as under: "issue No.1.6. This issue was not pressed by the learned representative of the respondent at the time of final arguments. Otherwise also, the mechanical Drainage Division is engaged in the construction of drains and this establishment, therefore, clearly falls within the definition of Industry as given in Section 2 (j) of the Industrial Disputes Act. The learned representative of the respondent has failed to show me any provision of law under which the respondent has been taken out of the purview of Industry as defined in the said Act. This issue is therefore, decided against the respondent. Issue No.2.7. It may be stated at the very outset that the first instance, both the sides had bed called upon to adduce evidence in support of their respective contentions by way of affidavits. One Shri K. K. Maini, Executive engineer filed affidavit dated May 31, 1982. The workman then moved an application to the Court for directing Shri k. K. Maini the deponent to appear in the court for his cross- examination. In pursuance of this request of the workman the case was adjourned several times for the; appearance and cross- examination of Shri k. K. Maini, the deponent but he failed to turn up in the Court. Since the deponent, namely, Shri K. K. Maini, never caused his appearance in the Court for his cross-examination, as in the absence of his cross-examination the affidavit filed by him in the Court cannot be acted upon. The respondent is consequently left with no evidence except one writing Exhibit M 1 to which the workman was duly confronted in this cross-examination and on which he admitted his signatures. The contention of the learned representative of the respondent is that the workman was removed from service because he had misbehaved with the s. O. and that the writing Exhibit M1 contains his clear cut confession to that effect and in face of that writing, no more evidence was required to be led to prove the misconduct of the workman before terminating his services when the workman was a work-charged employee.8. To my mind, the above contention raised by the learned representative is fallacious on the face of it. The workman had put in more than one year of service as stated in his affidavit Exhibit W1 which remained unrebutted. His services were admittedly terminated on April 24, 1978. The confession of the workman contained in the document Exhibit M1 is dated February 19, 1977 while his services came to be terminated as late as on April 24, 1978. Moreover, nowhere it has even been pleaded by the respondent that the services of the workman came to be terminated on the basis of his misconduct which was confessed by him vide writing Exhibit M 1 is thus clear that the confession Exhibit M 1 has absolutely no relevancy with the termination of services of the workman.9. As already noticed, the workman had put in more than one year of service. Even if he was a work charged employee, his case clearly falls within the mischief of Section 25-F of the Industrial Disputes Act. According to the provisions of Sec.25-F of the Industrial Disputes Act, one month notice was required to be served and retrenchment compensation was also required to be paid to the workman before the termination of his services. In his cross-examination as WW1, the workman has admitted that he had been paid one months pay in lieu of one months notice. However, the workman has sworn in para 4 of his affidavit Exhibit W1 that he was never paid any retrenchment compensation. It is not even the case of the respondent as pleaded in the written statement if the workman had been paid any retrenchment compensation. In view of the mandate contained in Sec.25-F of the Industrial disputes Act the services of the workman could never be terminated without payment of retrenchment compensation to him. The services of the workman were thus terminated in violation of the mandatory provisions of Sec.25-F of the Industrial disputes Act. Such a termination therefore, cannot be held to be justified, the issue is consequently decided against the respondent. " 7. Ms. Rita Kohli fairly conceded that Shri k. K. Maini whose affidavit was filed on behalf of the employer did not appear for cross examination but argued that even if, the same was to be ignored respondent No.2 should not have directed reinstatement of the workman with full back wages. 8. " 7. Ms. Rita Kohli fairly conceded that Shri k. K. Maini whose affidavit was filed on behalf of the employer did not appear for cross examination but argued that even if, the same was to be ignored respondent No.2 should not have directed reinstatement of the workman with full back wages. 8. There is no merit in the argument of the learned Deputy Advocate General. It is true that the adjudicating bodies constituted under the Act are not bound by technical rules of evidence contained in the Evidence Act but it is equally true that these (sic) proceedings are to be governed by substantive rules of procedure and natural justice. The principle that a fact sought to be proved must be supported by statements made in the presence of the person against whom the enquiry is held and that statements made behind the back of the person charged are not to be treated as substantive evidence is one of the basic principles which cannot be ignored by such adjudicating bodies. Therefore, respondent no.2 did not commit any illegality when he declined to consider the affidavit of Shri k. K. Maini, who as per the petitioners own admission, did not make himself available for being cross-examined by the representative of the workman. 9. On the issue of violation of Section 25-F of the Act, Ms. Kohli could not put forward any tangible argument. Rather, she had to concede that retrenchment compensation was not paid to the workman at the time of termination of his service. Thus, I do not find any reason to interfere with the finding recorded by respondent No.2 that termination of the workmans service was vitiated due to violation of Sec.25-F (b) of the Act. 10. The provisions of Sec.25-F (a) and (b) have been held to be mandatory and violation thereof has the effect of rendering the termination of the service of the workman as void ab initio/non est. In State of Bombay V/s. Hospital Mazdoor Sabha AIR 1960 SC 610 : 1960-I-LLJ-251, the Supreme Court considered the fact of violation of Sec.25-F of the Act and held that if the mandatory requirement enshrined in clauses (a) and (b) of that Section are not complied with, the order of termination of service is invalid and inoperative. In State of Bombay V/s. Hospital Mazdoor Sabha AIR 1960 SC 610 : 1960-I-LLJ-251, the Supreme Court considered the fact of violation of Sec.25-F of the Act and held that if the mandatory requirement enshrined in clauses (a) and (b) of that Section are not complied with, the order of termination of service is invalid and inoperative. In Mohan Lal V/s. Management of bharat Electronics Ltd. AIR 1981 SC 1253 : 1981 (3) SCC 225 : 1981-II-LLJ-70, their lordships of the Supreme Court treated the non-compliance of Sec.25-F of the Act as having the effect of rendering the order of termination as void ab initio. The same view was expressed in Surender Kwmar V/s. Central government Industrial Tribunal-cum-Labour court AIR 1981 SC 42 : 1980 (4) SCC 443 : 1981-I-LLJ-386 and Gammon India Limited V/s. Niranjan Dass AIR 1984 SC 500 : 1984 (1)SCC 509 : 1984-I-LLJ-233. 11. In view of the above discussion, it is held that the impugned award does not suffer from any jurisdictional infirmity or error of law apparent on the face of the record and keeping in view the scope of judicial review in such like matters, I do not find any justification to interfere with the direction given by respondent no.2 for reinstatement of the workman with full back wages. 12. In the result, the writ petition is dismissed. 13. While dismissing the writ petition, I consider it proper to take cognizance of the fact that while admitting the writ petition on november 29, 1984, a Division Bench of this court had stayed the operation of the impugned award. Ms. Kohli says that she is not in a position to say whether during the interregnum of 20 years, the workman was gainfully employed. Therefore, it is just and proper to direct that the workman shall not only be entitled to reinstatement with full back wages in terms of the award, but he shall also get interest on the arrears of wages at the rate of 9% p. a. from the date of termination of his service to the date of actual payment.