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Punjab High Court · body

2009 DIGILAW 1647 (PNJ)

State Of Haryana v. Shri Bhoop Singh

2009-09-17

K.KANNAN

body2009
Judgment K.Kannan, J. 1. The award in challenge is a direction for reinstatement and back wages. The workmans contention was that he had been working from the year 1988 as a casual labour on daily wages in Public Health Department. His contention was that he was feeling unwell from 29.05.1993 and remained on sick leave for a couple of days and when he went to resume duty, the Sub Divisional Engineer refused to take him back. The management, however, contended that there was no termination at all. The workman had remained absent from 12.04.1993 on his own and since there was no termination, the workman cannot complain of violation of Section 25-F of the Industrial Disputes Act. 2. Before the Labour Court, evidence had been tendered to the effect that the workman had worked for 169 days in 1988, 356 days in 1989, 303 days in 1990, 296 days in 1991, 242 days in 1992, and 181 days in 1993. The Labour Court had referred to the calendar years when what was appropriate was only a reference to 12 months prior to the date of alleged termination. The Labour Court, however, found even if the workman had remained absent, it was not open for the management to award extreme penalty of dismissal. The Labour Court purported to have drawn reliance upon D.K. Yadav v. J.M.A. Industries Limited-1993 LLR 585 (SC) and held that the termination of services of an employee without holding an enquiry was bad. At all times the contention of the management was that they had never terminated the workman but the workman had himself absented from April, 1993. The learned counsel Shri Nalwa would contend that without a finding whether the services had been terminated, there could not be an inference that there was a violation of Section 25-F of the Industrial Disputes Act. He also points out that if the Labour Court had found that the workman had 181 days in 1993, he could not have found that there was non-compliance of Section 25-F. 3. I have no difficulty in finding that the Labour Court was not correct when it was considering the number of days of the service in every calendar year, when what was relevant was 12 months prior to the date of alleged termination. I have no difficulty in finding that the Labour Court was not correct when it was considering the number of days of the service in every calendar year, when what was relevant was 12 months prior to the date of alleged termination. The question whether the workman did not have 240 days of service during the relevant period has not been specifically denied anywhere by the management. It is not even urged in the writ petition, although contended by the learned counsel before me that the workman had not completed 240 days during the relevant period of 12 months prior to the alleged termination. It shall, therefore, be impermissible for the management to contend that the workman did not have 240 days prior to his cessation of service with the management. 4. If the workman had 240 days of continuous service, the question would be then whether by the fact that the workman had remained absent, as in this case, the management had contended that the workman had failed to prove the termination of service, he could treat the contract of service as having come to an end. The learned counsel for the State would contend that in the case of daily workman, the management is not required to seek his presence by any process and also take action for terminating the contract for there existed no such a contract. According to him, it was a case of daily engagement pure and simple and the workman did not come. The liability of the management cannot be fastened by any obligation under Section 25-F of the Industrial Disputes Act. In my view, such an approach to legal reasoning would constitute a violence on the language of Section 25-F. This Section does not talk about the nature of engagement in any sense other than a case that could be excepted from the definition of retrenchment itself by operation of Section 2(oo)(bb) of the Industrial Disputes Act. In all other cases, it is immaterial whether a workman had a secured tenure or his terms of engagement were fragile, such as a daily rated workman. All that the law has requires is see whether he is a workman and whether his engagement was in an industry. The further requirement would then be whether the workman had completed 240 days of continuous service within the definition of Section 25-B of the Industrial Disputes Act. All that the law has requires is see whether he is a workman and whether his engagement was in an industry. The further requirement would then be whether the workman had completed 240 days of continuous service within the definition of Section 25-B of the Industrial Disputes Act. If all the three ingredients occur and if the continuous service comes to an end in any way by precipitative action of the management, the management has perforce to comply with Section 25-F. Assuming for the arguments sake that a workman who had completed 240 days, had stopped the work and he seeks for resumption of duty after a break. The management shall not refuse to him an engagement merely because he is a daily workman. If he had 240 days and if the workman had expressed willingness for resumption of his work, unless his engagement was excepted category under Section 2(oo(bb), the management is bound to ensure that the compliance of Section 25-F is made. In this case, the fact that the workman had contended that his services were terminated on 29.05.1993, and the management contended that the workman had stopped working from 12.04.1993, would make no difference. The management did not allow him to continue is brought through the evidence of the workman and the reference itself was only to the effect, whether the termination was valid or not. It is not brought out anywhere in the record that the management was prepared to take him back or offer him employment. What transpired before the Conciliation Officer, unfortunately is not before me, but that was a reference by the State is indicative enough of the managements unwillingness to take him back and there existed a dispute. This was all that was necessary for a workman to prove before the Labour Court. 5. Although the reasoning adopted by the Labour Court in terming at one place that the management had dismissed the workman from service and at another place that the workman had 181 days, may not be correct, still, I find on appropriate appraisal of all the relevant facts which are not in dispute that the workman was entitled to reinstatement and back wages and the ultimate conclusion of the Labour Court, is justified. 6. 6. The learned counsel appearing for the State would further contend that the cessation termination of service had taken back as early as in 1993 and it would not be appropriate to direct reinstatement. I reject such a contention when was not brought out through evidence that the work was not available and that the nature of work itself was such as a continuance of the availability of the workman, was not possible. I, therefore, confirm the Labour Courts award for reinstatement. As regards the claim for back wages, the learned counsel appearing for the management would contend that there is no evidence at all of the workman that he had not been gainfully employed during the relevant period. The Honble Supreme Court has observed in Talwara Cooperative Credit & Service Society Ltd. v. Sushil Kumar 2008(4) S.C.T. 382 : 2008(6) R.A.J. 211 : (2008) 9 SCC 486, that there has been a paradigm shift recently appearing through judicial pronouncements that the burden shall be on the workman to establish that he had not been gainfully employed during the relevant period and that he is entitled to wages and the principle of no work no pay shall not apply. The learned counsel for the workman would contend that there was nothing brought on record at least to show that the workman had been employed anywhere else. I have observed that the burden never shifts. Onus may, however, shift in a case where if there was some evidence placed by the workman, it shall be refuted by the management. If no definite evidence is available, I think that an appropriate relief for the workman shall be to offer 50% of the back wages. The award of the Labour Court is modified only to the extent of back wages by retaining the dispensation for reinstatement that instead of full back wages, 50% of the back wages be given to the workman. 7. The writ petition is dismissed, with such modification, as above. No costs. Petition dismissed.