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2013 DIGILAW 214 (PNJ)

Chandigarh Child And Women Development Corporation Ltd. v. Presiding Officer, Industrial Tribunal-Cum-Labour Court

2013-02-18

RAJIV NARAIN RAINA

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JUDGMENT : Rajiv Narain Raina, J. This order will dispose of CWP Nos. 25124, 25130 and 25131 of 2012 as similar issues of law and facts are involved in the same. For convenience, facts are taken from CWP No. 25124 of 2012. On 29.1.2013, learned counsel for the petitioner had prayed for time to place on record Ex. M-1, to enable this Court to consider the further on merits. Application for placing on record Ex. M-1 has been filed. The same is allowed. Ex. M-1 is taken on record. 2. In CWP No. 25124 of 2012, respondent-workman was appointed as a Cook, in CWP No. 25130 of 2012, as a Mali and in CWP No. 25131 of 2012, the respondent-workman was appointed as Chowkidar. Ex. M-1 is the appointment letter offered to the respondent-workman to work as a cook for two months on contract basis in the Senior Citizens Home, Sector 43, Chandigarh. The appointment, though limited initially for a period of two months, gave hope that it may be extended further from time to time. This letter, however, was not the first entry into contractual service. On the petitioner's own admission before the Labour Court, the respondent workman was appointed as a Cook on 15.6.2001 and he remained in uninterrupted employment up to 21.12.2003 when his services were terminated without notice or assigning any reason. 3. The initial appointment vide letter dated 15.6.2001 was for a period of six months on monthly consolidated wages of Rs. 2520/-. His name was sponsored by the Employment Exchange. He was given extension for one year w.e.f. 19.12.2002 vide letter dated 11.12.2002. This was repeated on 18.12.2002 and the respondent-workman remained on the job till 23.1.2004. The workman had put in above 3 1/2 years of service on contract basis when he was issued letter dated 8.1.2004, Ex. M-1 offering contract appointment for two months only w.e.f. 20.12.2003 and calling upon the workman to sign the pro forma contract deed, appended to the letter. The workman had put in above 3 1/2 years of service on contract basis when he was issued letter dated 8.1.2004, Ex. M-1 offering contract appointment for two months only w.e.f. 20.12.2003 and calling upon the workman to sign the pro forma contract deed, appended to the letter. One of the terms was that he would not contest any claim whatsoever for regular appointment at the level of any authority of the Corporation or in any court of law on account of contractual appointment Such terms in the contract of employment attempted to be thrust upon the workman were, to say the least, unfair, unreasonable and opposed to public policy and hit by the vice as expounded in Central Inland Water Transport Corporation Limited and Another Vs. Brojo Nath Ganguly and Another, AIR 1986 SC 1571 and therefore void and inoperative in compelling the employee to sign on the dotted line on 'take it or leave it' basis. This action was seen through by the workman as a design to restrict his employment to two months, to make him sign the contract and then do away with his services without inviting a murmur. The workman did not sign the contract deed. On 23.1.2004 vide Ex. M6, the Corporation unceremoniously terminated his services on account of non-execution of the contract deed sought to be foisted on him, against which the workman's reaction was that which may have been expected from any other reasonable man put in his place with a legitimate expectation, not of regularization but of continued contractual service which truly would not fall in the exception (bb) of Section 2(oo) of the Act since the contract was renewed. It was not a case on non-renewal of the contract of employment. Unfortunately, non-signing of the contract deed limiting the tenure to two months after over three years of service was presumed by the Corporation as a surrender of rights under the offer of further appointment and as an act of abandonment of job. Non-signing of a contract of employment during the course of prior employment also amounts to 'retrenchment' 'for any reason whatsoever' within the meaning of the definition of the word in Section 2(oo) of the Act. 4. Aggrieved by the termination, the workman raised an industrial dispute by serving a demand notice dated 23.1.2004 which ultimately led to reference before the Labour Court on failure of conciliation. 4. Aggrieved by the termination, the workman raised an industrial dispute by serving a demand notice dated 23.1.2004 which ultimately led to reference before the Labour Court on failure of conciliation. In her cross examination, MW 1 Susheela Sharma, Senior Assistant of the Corporation, stated that during conciliation, the Management asked the workman to join duty, but he was adamant in hid demand for regularization of his services. MW 1, admitted that another cook was engaged to do the same job on contract basis, after termination of the services of the respondent workman. The Learned Labour Court has found that the attempt to curtail contract for two months was uncalled for and was an evil design of the Management to deprive the workman of his legal rights of continuation in the job. There is nothing forthcoming from the record that his work and conduct was found unsatisfactory or that there was any shortcoming in the performance of his duties as a Cook. Compelling the workman to sign a pro forma contract deed limiting his tenure of service for two months, after having put in 3 1/2 years of prior continuous and uninterrupted service has been held to be unfair labour practice by the Labour Court. The continuous employment subsisting for 3 1/2 years was adversely altered without notice, in violation of Section 9 of the Industrial Disputes Act, 1947 (for short “the Act”) as well. Indisputably, the management did not comply with the mandatory provisions of Section 25-F of the Act. If the workman lost an appointment on account of change of service condition, the action is yet hit by unfair labour practice. There was violation of Section 25-H of the Act as well on account of admission that a cook was appointed in his place. A finding of unfair labour practice is akin to proof of mala fides in service law which tends ordinarily to vitiate administrative action. The workman's entry into service was not through the back-door. He came through the Employment Exchange. If he lost his job, he lost his valuable position in the queue for future employment from the priority list maintained by the Employment Exchange. The findings of fact recorded by the Labour Court, after appreciating evidence are not to be interfered with in exercise of writ jurisdiction as explained in as explained in Syed Yakoob Vs. If he lost his job, he lost his valuable position in the queue for future employment from the priority list maintained by the Employment Exchange. The findings of fact recorded by the Labour Court, after appreciating evidence are not to be interfered with in exercise of writ jurisdiction as explained in as explained in Syed Yakoob Vs. K.S. Radhakrishnan and Others, AIR 1964 SC 477 . In so far as the violation of Section 25-F of the Act is concerned, the law has been re-fashioned by the Supreme Court in Anoop Sharma Vs. Executive Engineer, Public Health Division No. 1 Panipat (Haryana), (2010) 125 FLR 629 , Harjinder Singh Vs. Punjab State Warehousing Corporation, AIR 2010 SC 1116 and Devinder Singh Vs. Municipal Council, Sanaur, AIR 2011 SC 2532 . In Harjinder Singh (supra), the Supreme Court has held:- 30. Of late, there has been a visible shift in the courts' approach in dealing with the cases involving the interpretation of social welfare legislations. The attractive mantras of globalization and liberalization are fast becoming the raison d'etre of the judicial process and an impression has been created that the constitutional courts are no longer sympathetic towards the plight of industrial and unorganized workers. In large number of cases like the present one, relief has been denied to the employees falling in the category of workmen, who are illegally retrenched from service by creating by-lanes and side-lanes in the jurisprudence developed by this Court in three decades. The stock plea raised by the public employer in such cases is that the initial employment/engagement of the workman/employee was contrary to some or the other statute or that reinstatement of the workman will put unbearable burden on the financial health of the establishment. The courts have readily accepted such plea unmindful of the accountability of the wrong doer and indirectly punished the tiny beneficiary or the wrong ignoring the fact that he may have continued in the employment for years together and that micro wages earned by him may be the only source of his livelihood. 31. It need no emphasis that if a man is deprived of his livelihood, he is deprived of all his fundamental and constitutional rights and for him the goal of social and economic justice, equality of status and opportunity, the freedoms enshrined in the Constitution remain illusory. 31. It need no emphasis that if a man is deprived of his livelihood, he is deprived of all his fundamental and constitutional rights and for him the goal of social and economic justice, equality of status and opportunity, the freedoms enshrined in the Constitution remain illusory. Therefore, the approach of the courts must be compatible with the constitutional philosophy of which the directive principles of State policy constitute an integral part and justice due to the workman should not be denied by entertaining the specious and untenable grounds put forward by the employer - public or private. The workman was not a daily wager who served for short period so as to be denied relief of reinstatement and back wages in view of the dicta laid down by the Supreme Court in Assistant Engineer, Rajasthan Development Corporation v. Gitam Singh, Civil Appeal No. 8415 of 2009 decided on 31.1.2013. In view of the above, there is no legal infirmity in the impugned award in the present and in the connected cases and reinstatement is perfectly justified together with grant of continuity of service on the position last held. Insofar as back-wages are concerned, the Labour Court has held that the workman took three years to conclude evidence which is a detracting feature, looking to the fact that the issues were framed on 28.3.2006 and workman's concluded his evidence on 23.3.2009. Consequently, the relief of back-wages has been moulded to 30% which appears to be not unjustified on the face of it. There is no error apparent on the face of the record warranting interference in supervisory jurisdiction. Since the petitioner has been held to have indulged in unfair labour practice which finding is liable to be affirmed, and to the contrary no reason whatsoever is forthcoming in the writ petition to unsettle that finding, the present and connected writ petitions are found devoid of merit and are dismissed with costs of Rs. 10,000/- in each case. Mr. K.K. Gupta learned counsel appearing for the petitioner built his case from start to finish on the last letter dated 8.1.2004, Ex. M-1 offering contract appointment for two months w.e.f. 20.12.2003 as though there was nothing preceding it. 10,000/- in each case. Mr. K.K. Gupta learned counsel appearing for the petitioner built his case from start to finish on the last letter dated 8.1.2004, Ex. M-1 offering contract appointment for two months w.e.f. 20.12.2003 as though there was nothing preceding it. The writ petitions appear to have been filed in a most casual and mechanical manner with a view to get the imprimatur of this Court, Let the costs be deposited with the State Legal Services Authority, UT, Chandigarh within two months.