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Punjab High Court · body

2008 DIGILAW 2056 (PNJ)

Hardial Singh v. Presiding Officer

2008-12-08

HARBANS LAL

body2008
Judgment Harbans Lal, J. 1. This petition has been moved by Hardial Singh under Articles 226/227 of the Constitution of Indiaforquashing the:award dated 1.4.1987 Annexure P.8. 2. The facts in brief are that Hardial Singh - petitioner (hereinafter to be referred as the workman) was working as Salesman on a monthly salary of Rs. 453.80 with the respondent- Society. He had served there for three years. He has alleged that his Services were terminated on 5.6.1981 without notice, charge-sheet or inquiry. The Labour Court vide the impugned award has not decided the matter in accordance with law or as per the evidence and being perverse is liable to be modified to the extent that the petitioner is entitled to reinstatement and the remaining part of the service benefits, in addition to already awarded in the impugned award. 3. On demand notice, the matter was referred to the Presiding Officer, Labour Court, Bathinda. Thefollowing issueswere framed: 1. Whether the order of termination of service of the workman is justifiable at law and in order ? 2. Whether the reference is bad in law for the reasons mentioned in the preliminary objections of the written Statement ? 3. Relief. After hearing the respective representatives of the parties and examining the evidence on record, the learned Presiding Officer, Labour Court held that the workman shall be entitled of to wages till today. Feeimg aggrieved therewith, the workman has filed this petition. 4. I have heard the learned counsel for the parties, besides perusing the findings returned by the learned Presiding Officer, Labour Court with due care and circumspection. 5. Mr. J.C. Verma, Senior Advocate appearing on behalf of the workman urged with great eloquence that after Suspension of the workman, no charge-sheet, show cause notice was served upon him and no inquiry was held nor any opportunity was afforded to him. The workman was even not informed of the termination of his Services nor subsistence allowance was paid to him. When he moved an application under Section 15 of the Payment of Wages Act before the competent authority, jt was held that he was in service throughout and directed to the Society to pay to the workman the wages. The workman was even not informed of the termination of his Services nor subsistence allowance was paid to him. When he moved an application under Section 15 of the Payment of Wages Act before the competent authority, jt was held that he was in service throughout and directed to the Society to pay to the workman the wages. He had been emphatic in the course of arguments that a meticulous perusal of the entire record would reveal that indeed the workman did not join any strike with his co- employees nor he absented from duty rather he remained on duty and that being so, the learned Labour Court was not justified in withholding the relief of reinstatement and füll back-wages right from the day of termination of his Services tili the date of his reinstatement. He further pressed into service that severel hundred employees of the Society were placed under Suspension and their Services were terminated on the ground that they had gone on strike. He has sought to place abundant reliance upon the observations made in SherSingh vs. Presiding Officer, Labour Court and another, Civil Writ Petition No. 4541 of 1986. decided on 29.5.1991, Makhan Singh vs. Narainpura Cooperative Agricultural Service Society Limited and another, AIR 1987 Supreme Court 1892; M/s Burn and Company Limited vs. Their Workmen and others, AlR1959 Supreme Court 529, and Gujarat Steel Tubes Limited, vs. Gujarat Steel Tubes Mazdoor Sabha and others,AIR 1980 Supreme Court 1896. 6. In response, Mr. Amit Jain, Advocate on behalf of the respondent-Society urged that the workman along with others had proceeded on strike with the result the work of the Society had received a great set back and ultimately their Services were terminated. If the workman had continued in service, it was expectey of him to prove so by calling the record of the Society. In the absence of such evidence, by no streich of speculation, it can be assumed that he continued discharging his functions as a Salesman. Sequelly, no fault can be found with the impugned award. 7. I have well considered the rival contentions. Vide Annexure P. 1, the workmah was placed under Suspension. Annexure P.2 is the resolution in which it has beeh mentioned that "Resolved that the employees of the Society have been absent from duty since 11.5.1981 being on strike. Sequelly, no fault can be found with the impugned award. 7. I have well considered the rival contentions. Vide Annexure P. 1, the workmah was placed under Suspension. Annexure P.2 is the resolution in which it has beeh mentioned that "Resolved that the employees of the Society have been absent from duty since 11.5.1981 being on strike. Initially the President made enquiries after calling thern on 21.5.1981, orally, and, thereafter, on 25.5.1981, he called a meeting of the managing committee and suspended these employees and-they were served notices of Suspension through the peons of the Society and asked to hand over their Charge to Gurdial Singh s/o Bishan Singh, member of the committee, at 10.00 a.m. On 3.6.1981, but no striking employee turned up on 3.6.81 to hand over the Charge. Therefore, the meeting of the members of the society committee was called on 5.6.1981 and decidedtoterminate the Services of Shri Ajit Singh, Secretary, Hardial Singh, Salesman (referring to the petitioner-workman) and Hardip Singh Cashier, and to employ new hands in their case." This resolution speaks volumes of the fact that the Services of the workman along with others were terminated without holding any domestic inquiry or serving any notice. In re: Makhan Singh (supra); the Apex Court held as under: "On a consideration of the whofe material placed before this Court we are of the view that the decision of the management in the instant case to terminate the Services of the appe\iant without holding any domestic enquiry is not a bona fide one. We accordingly hold that the termination of the appellants Services is unjustified. In the result, we set aside the judgment of the High Court and the award passed by the Labour Court and pass an award directing the Society to reinstate the appellant in its Service with effect from May 30, 1981, the date on which the Society passed the resolution terminating the appellants Services. The appellant shall be treated as being in the service of the Society without any break in his service. He is entitled to all the consequential benefits. The appellant shall be treated as being in the service of the Society without any break in his service. He is entitled to all the consequential benefits. We direct the society to pay full back wages to the appellant from the date of termination of his Service till the date of reinstatement." In Makhan Singhs case (supra), the workman had absented from his duty and had stayed away from the work and by passing the resolution, his Services were terminated by the Society. Thus, on viewing the matter in the light of afore-extracted observations, the termination of the Services of the workman is unjustified. Further in re: M/s Burn and Company Limited (supra), the Honble Supreme Court has held as under : "It cannot be said that mere participation in an illegal strike would justify their Suspension or dismissal particularly wben no clear distinction can be made between these persons and the very large number of workmen who had been taken back into service although they foad participated in the strike." 8. Adverting to the instant case, if it is assumed that the workman had participated in an illegal strike, notwithstanding, his Suspension or termination in view of the above observations cannot be deemed to be justified. As per Annexure P.3, the order dated 24.9.1984 passed by the Sub Divisional Magistrate, Moga and Authority under the Payment of Wages Act, "the respondent-Society had examined its Secretary Hoshiar Singh as RW1, who under the stress of cross-examination admitted that the applicant (referring to the workman-Hardial Singh) did bring sugar from store on 21.5.1981 which was distributed on 22.5.1981 according to record." This evidence tends to Show that the workman did not proceea on strike. As observed in this Annexure "It is quite clear from the record that no notice for dismissal was ever served upon him and this implies that the applicant was never dismissed in accordance with the law of the land and the relief for the grant of pay from 1.5.81 to 26.5.81 and Suspension allowance from 27.5.8 .to 31.3.82 beallowed. In sofaras, the dismissal of the applicant is concerned, the applicant has already moved for adjudication before the Labour Tribunal." 9. It is conspicuous from these observations that neither any notice for dismissal was ever served upon the workman nor he was ever dismissed from Service in accordance with law. In sofaras, the dismissal of the applicant is concerned, the applicant has already moved for adjudication before the Labour Tribunal." 9. It is conspicuous from these observations that neither any notice for dismissal was ever served upon the workman nor he was ever dismissed from Service in accordance with law. He was allowed the wages for the afore-mentioned period apart from Suspension allowance. As per Annexure P.4, the written Statement filed by the respondent-Society before the Labour Court, the workman remained absent from 11.5.1981 to 5.6.1981 which is contradicted by the above admission madeby Hoshiar Singh (sie). The workman in the rejoinder Annexure P.5 filed by him before the Labour Court has pleaded that he is unemployed tili date in spite of best efforts to get any employment. 10. In view of the above discussed documentary evidence, it is found that the learned Presiding Officer, Labour Court was clearly in error in holding that the termination of the Services the workman is thus lawful and justified. A separate termination order was never passed nor served upon him at any stage. In re: Rajasthan Lalit Kala Academy vs. Radhey Shyam, 2008(5) RAJ 142, the workman was working as Junior Clerk on a monthly salary of Rs. 300/-. His Services were terminated on 4.4.1981. On an industrial dispute being raised, the Industrial Tribunal, Jaipur by an award dated 24.9.1983 set aside the order of termination and directed reinstatement of the respondent with effect from 24.9.1983 with 50% back-wages. The apex Court held as under: "It appears to us that in the present case there has not been due application of mind either by the Labour Court or the High Court on the question of reinstatement and payment of 25% back-wages. The only ground on which reinstatement and continuity of service has been ordered is because the order of termination has been held to be unlawful. Similarly, 25% back-wages have been awarded for the reason that the Services of the petitioner were terminated with immediate effect but no specific reason as such has been assigned for the award of the said back-wages. In our opinion, though, illegality of the order of termination is one of the prime considerations for determining the question and quantum of back-wages, but it cannot be the sole criterion therefor. In our opinion, though, illegality of the order of termination is one of the prime considerations for determining the question and quantum of back-wages, but it cannot be the sole criterion therefor. A host of other factors, a few enumerated above, are required to be taken into consideration before issuing directions in that behalf. Therefore, the award of the Labour Court to that extent cannot be sustained. However, we feel that at this distant time, it would not be fair to the respondent-workman to remit the matter back to the Labour Court or the High Court for fresh consideration of the issue. In the light of the observations referred to supra and having regard to the nature and the period of Services rendered by the respondent and the fact that his Services were terminated initially on 4th April, 1981 and then on 31st January, 1985 and the vicissitudes of long- drawn litigation, the respondent has undergone for over 27 years, interest of justice would be met if instead and in place of direction for reinstatement and back-wages - a sum of Rs.3 lakhs is directed to be paid to the respondent by way of compensation. We direct aecordingly. The payment shall be made within eight weeks from today, failing which it shall carry interest @ 9% per annum from the date of this judgment till the date of actual payment." 11. Harking back to the case in hand, the workman was employed as a Salesman at a monthly salary of Rs. 453.80. He had put in three years Service. His Services were terminated with effect from 5.6.1981. Thus obviously, the facts of the present case bear semblance with Radhey Shyams case (supra). At this juncture, Mr. Verma has brought to the notice that the workman has superannuated by now. Thus, the interest of justice would be met if instead and in place of direction of reinstatement and back-wages, a sum of Rs. 3 lacs is directed to be paid to the workman by the respondent-Society by way of compensation. I direct accordingly. The payment shall be made within eight weeks from today, failing which, it shall carry interest at the rate of 9% per annum from the date of this judgment tili the date of actual payment. Accordingly, the impugned award is modified. Disposed of accordingly. Ordered accordingly