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2015 DIGILAW 606 (HP)

Director, Telecom Project-II v. Neelam Chadha

2015-05-27

MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN

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JUDGMENT : Mansoor Ahmad Mir, J. This Letters Patent Appeal has been filed by the appellant-employer (writ petitioner) questioning the judgment and order, dated 17th November, 2011, passed by the learned Single Judge of this Court in CWP No.4378 of 2009, titled The Director, Telecom Project vs. Neelam Chadha and another, whereby the award passed by the Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court-I, Chandigarh, (for short, the Labour Court), in favour of the respondent-workman, came to be modified, (for short, the impugned judgment). 2. Facts of the case, as averred, are that the respondent-workman was engaged as Typist-Casual Worker by the appellant on daily rate basis w.e.f. 12th August, 1995. The respondent-workman continued to work as such till April, 1996 and her services came to be terminated by the appellant-employer verbally w.e.f. May, 1996. 3. Upon a reference having been received from the Government of India, the Labour Court entered into the reference and after examining the pleadings and the evidence adduced by the parties, passed the award in favour of the workman (respondent herein) by directing the appellant-employer to reinstate the services of the workman and to pay her entire back wages. 4. Feeling aggrieved, the employer challenged the award passed by the Labour Court by filing the writ petition (supra). The Writ Court, after examining the award and the pleadings of the parties, modified the award by providing that the workman would be entitled only to reinstatement and not to the wages for the period during which her services remained terminated. 5. The workman-writ respondent has not questioned the impugned judgment on any count. Only the employer/writ petitioner has questioned the impugned judgment on the grounds taken in the memo of appeal. 6. Before we deal with the grounds on which the impugned judgment has been sought to be assailed, we deem it proper to make a reference to the grounds taken by the writ petitioner in the writ petition, seeking quashment of the award passed by the Labour Court: “(i) That the Ld. Presiding Officer of the Labour Court has based his award on conjectures and surmises. There was no material whatsoever to show that Respondent No.1 has worked with the petitioner in the month of February, 1996. The voucher which has been relied upon for holding that Respondent No.1 has worked in the month of February, 1996 pertains to one Neena Chadha. Presiding Officer of the Labour Court has based his award on conjectures and surmises. There was no material whatsoever to show that Respondent No.1 has worked with the petitioner in the month of February, 1996. The voucher which has been relied upon for holding that Respondent No.1 has worked in the month of February, 1996 pertains to one Neena Chadha. It will be worthwhile to mention here that it was never the case of Respondent No.1 prior to 1999 that for the month of February, 1996 she was paid the wages in the name of Neena Chadha. As such, the foundation of her case is based upon falsehood and except her bald statement, there is nothing to show that she has worked in the month of February, 1996. As such the findings returned by the Ld. Presiding Officer of the Labour Court are perverse and contrary to the record. Hence, the award Annexure P-4 dated 21.7.2009 is liable to be set aside. (ii) That it was specific case of the petitioner that Respondent No.2 was a casual worker and was engaged on a project work. When the camp office of the project was to be closed, the services of the Respondent No.1 were no longer required. Even the entire project work has come to an end. As such, the Ld. Presiding Officer, Industrial Tribunal has erred in law in granting reinstatement in employment to Respondent No.1. On this ground also, the impugned award is liable to be set aside. (iii) That it was never the case of the Respondent No.1 that she is not in gainful employment after termination of her services. In fact, no body will remain unemployed for a long period of 13 years. The Ld. Presiding Officer has granted full back wages to Respondent No.1 against the well settled law. In the present case, the Respondent No.1 at the most was entitled for compensation not the full back wages and reinstatement. On this ground also, the impugned award is liable to set aside. (iv) That the award of the Ld. Presiding Officer, Industrial Tribunal amounts to undue enrichment of Respondent No.1 at the cost of public money, which is against the public policy and on this ground also, the impugned award is liable to be set aside.” 7. On this ground also, the impugned award is liable to set aside. (iv) That the award of the Ld. Presiding Officer, Industrial Tribunal amounts to undue enrichment of Respondent No.1 at the cost of public money, which is against the public policy and on this ground also, the impugned award is liable to be set aside.” 7. During the course of hearing, the learned counsel for the appellant-employer vehemently argued that the workman-respondent had not completed 240 days in the preceding 12 months, when her services were terminated. The learned counsel for the appellant was specifically asked to show whether any such ground was taken in the writ petition. The learned counsel frankly conceded that no such ground was urged before the writ Court, as is also evident from a perusal of the grounds of the writ petition reproduced supra. 8. The learned counsel for the appellant also argued that the project has come to an end and there is no work. The Labour Court, after examining the rival contentions of the parties and the evidence adduced, has categorically recorded in the award as under: “As per the evidence available on record the management was having the work and still having the work so there is no force in the contention of the management that project for which the workman was engaged has been closed.” 9. The learned counsel for the appellant has not been able to show from the record that the said findings recorded by the Labour Court, are erroneous or are not based upon correct appreciation of the material placed on record. Thus, the contention raised by the learned counsel for the appellant-employer is repelled, being not sustainable in the eyes of law. 10. The Apex Court in a latest decision in Mackinnon Mackenzie and Company Limited vs. Mackinnon Employees Union, (2015) 4 Supreme Court Cases 544, has held that when no positive evidence was adduced in support of the claim of the appellant-Company that the retrenchment was effected on account of closure of the department/unit of the Company, the finding of fact recorded by the Labour Court in that regard against the employer cannot be interfered with. It is apt to reproduce paragraph 33 of the said decision hereunder: “33. It is apt to reproduce paragraph 33 of the said decision hereunder: “33. On the contention urged on behalf of the appellant- Company that it was a closure of the department/unit of the appellant-Company as per the definition of "closure" under Section 2(cc) of the I.D. Act, we are of the view that with respect to the above contentious issues framed by the Industrial Court have been answered against the appellant-Company based on the finding of fact recorded by it. Therefore, the said contention urged on behalf of the appellant-Company cannot be allowed to sustain in law.” 11. It was also observed by the Apex Court in the decision supra that Court cannot sympathize with a party which gambles in litigation to put off the evil day, and when that day comes, prays to be saved from its own gamble. It is apt to reproduce paragraph 53 hereunder: “53. Further, it is urged by the learned senior counsel on behalf of appellant- Company that there is no question of reinstatement of the workmen concerned and payment of back wages to them since the concerned department/unit of the appellant-Company in which they were employed no longer exists and therefore, requested this Court to mould the relief granted by the courts below. The said contention is rightly rebutted by the learned senior counsel on behalf of the respondent-Union by placing reliance on Workmen of Sudder Workshop, wherein this Court held that the Court cannot sympathise with a party which gambles in litigation to put off the evil day, and when that day comes, prays to be saved from its own gamble. The said contention urged on behalf of the respondent-Union must be accepted by us as the same is well founded. Therefore, we hold that moulding of the relief is not permissible in this case at this stage when the matter has reached this Court keeping in mind the legal principle laid down by this Court on this aspect of the matter in the case referred to supra.” 12. The Labour Court, after examining the evidence and the facts rightly came to the conclusion that the services of the workman were terminated without any cause and that the termination order was in breach of the principles of natural justice. 13. In view of the above discussion, we are of the opinion that the impugned judgment is speaking one and needs no interference. 13. In view of the above discussion, we are of the opinion that the impugned judgment is speaking one and needs no interference. 14. Having said so, there is no merit in the appeal, the same is dismissed and the impugned judgment is upheld. 15. Pending CMPs, if any, also stand disposed of.