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2017 DIGILAW 607 (HP)

Desh Raj v. Divisional Engineer, Telecom Project

2017-05-29

AJAY MOHAN GOEL

body2017
JUDGMENT : Ajay Mohan Goel, J. Both these petitions are being disposed of by a common judgment as the petitioners in these two writ petitions are aggrieved by the common award passed by the Court of learned Central Government Industrial Tribunal-cum-Labour Court-1, Chandigarh, Camp at Shimla, No. 1 of 2002, dated 07.09.2010, whereby the learned Court below has answered the reference in favour of the employer and against the petitioners therein. 2. Brief facts necessary for the adjudication of the present case are that the following references were received by the learned Court below in respect of the present petitioners from the appropriate government. “1. No. L-40012/202/2001 (IR (DU)) dated 19-12-2001 “Whether the action of the management of the Divisional Engineer, Telecom Project, Sanjay Sadan, Shimla, in ordering disengagement/termination of the services of Sh. Desh Raj s/o Sh. Kansh Ram is just and legal and if not what relief the workman is entitled to and from which date?” 2. No. L-40012/61/2002 IR (DU) dated 14.08.2002 “Whether the action of the management of the Divisional Engineer, Telecom Project, Shimla, in terminating the services of Sh. Bodh Raj, labour on daily wages w.e.f. October 1996 is just and legal? If so, what relief the workman is entitled to?” 3. Present petitions have been preferred by S/Shri Desh Raj and Bodh Raj, therefore, this Court will be referring only that part of the pleadings which pertained to present petitioners. There were three claimants before the learned Tribunal below including the present petitioners and the case of the present petitioners before the learned Tribunal below was that they were engaged as daily waged labourers under the control of Divisional Engineer, Telecom Project, Sanjay Sadan, Shimla w.e.f. 01.05.1995 and they continued to serve as such till October, 1996, when their services were verbally terminated without complying with the provisions of either Section 25-F of the Industrial Disputes Act or Section 25-H of the same. It was further the case of the petitioners that despite the fact that they had completed more than 240 days in the preceding 12 months, as from the date, when their services were verbally terminated, neither any notice was given to them, nor any payment in lieu of such notice was paid to them as is envisaged under Section 25 of the Industrial Disputes Act. As per the petitioners their services stood terminated in violation of statutory provisions of the Industrial Disputes Act and accordingly, they had prayed for relief of reinstatement in service with full back wages alongwith interest with continuity in service. 4. In the reply so filed to the claim of the workmen by the management, the factum of their engagement w.e.f. 1.5.1995 and the factum of their verbal termination was not disputed. However, the defence taken by the management was that the claimants were engaged as casual labourers on daily wage basis without written order of appointment, which was for a specific project scheme and after completion of the said project, the task force was abolished in June 1997, hence there was no question of continuing the engagement of casual labourers after the completion of the project. It was further the stand of the management that verbal engagement of the claimants was not extended after October, 1996 and thus, their engagement was brought to an end, though there was no record available in this regard in the office. It was further the stand of the management that there was no violation of statutory provisions of the Industrial Disputes Act as Section 25-F of the Industrial Disputes Act was not attracted at all because there was no question of termination of services as was alleged by the claimants as this was a case where claimants were engaged verbally as casual labourers on daily wage basis. On these bases, the disengagement of the claimants was justified by the management. 5. The learned Tribunal below vide award dated 07.09.2010 answered the same against the claimants and in favour of the management. The claim thus filed by the petitioners was dismissed. 6. It was held by learned Tribunal that the factum of the claimants having been completed more than 240 days prior to the date of their disengagement was of no consequence as requirement was that a workman should have had completed 240 days in the preceding year and the claimants had failed to demonstrate that in the preceding year, they had completed 240 days. The exact findings returned in this regard by the learned Tribunal are quoted here-in-below. “The requirement of law is that workman should have completed 240 days of work in the preceding year from the date of his termination. The exact findings returned in this regard by the learned Tribunal are quoted here-in-below. “The requirement of law is that workman should have completed 240 days of work in the preceding year from the date of his termination. The certificate is regarding the working days in total and tenure and not in the preceding year from the date of termination.” 7. It was further held by the learned Tribunal that even otherwise, disengagement on completion of the project would not amount to any retrenchment and in these circumstances, there was nothing to demonstrate that their services were in fact terminated. It was further held by learned Tribunal below that the workman had failed to prove that in the preceding year, they had completed 240 days from the date of their termination. On these bases, it was held by the learned Tribunal that there was no force in the claim of workman and they were not entitled to relief as claimed for. 8. Feeling aggrieved, the petitioners herein have filed the present petitions. 9. Mr. B.C. Negi, learned Senior Counsel appearing for the petitioners in both the petitions argued that the award passed by learned Tribunal below was perverse and not sustainable in the eyes of law. He further argued that learned Tribunal below erred in not appreciating that it is not the preceding year, which is to be taken into consideration for the purpose of calculating 240 days and what has to be taken into consideration was preceding 12 months as from the date of termination of the workman for the said purpose. He further submitted that learned Tribunal had erred in holding that on completion of project, services of claimants were rightly brought to an end as except bald statements made in the reply to this effect, there was nothing on record from which it could be inferred that the appointment of the claimants was project specific and their services were disengaged as the project work stood completed. Mr. Negi further argued that when it stood demonstrated from records that the petitioners had completed more than 240 days in the preceding 12 months as from the date of their verbal termination, then the statutory provisions of Industrial Disputes Act were attracted and their services could not have been terminated without complying with the provisions of Industrial Disputes Act in general and Section 25-F of the said Act in particular. Mr. Negi has also drawn the attention of this Court to an order passed by learned Central Administrative Tribunal, Chandigarh Bench, Circuit Bench at Shimla, in OA No. 1093-HP-96, dated 15.03.2000, which is appended with the petitions as Annexure P-3, whereby in an original application filed before the said Tribunal by the workmen, similarly situated persons as the present petitioners, learned Tribunal had allowed the same and had set aside the verbal disengagement of the workmen and had further issued directions of reengagement as well as for consideration of their claims for being granting temporary status in terms of scheme of 7th November, 1989. Mr. Negi has also drawn the attention of this Court to a judgment passed by Hon’ble Division Bench of this Court in CWP No. 55 of 2002, dated 05.05.2008, which in fact was a petition filed by the present respondents against the order passed by learned Tribunal, in which, the Hon’ble Division Bench of this Court while setting aside the directions passed by learned Tribunal to the effect that case of the original applicants therein be considered for grant of temporary status in terms of scheme dated 7th November, 1999, upheld the order so passed by the learned Tribunal whereby it quashed the oral termination and directed reinstatement of the said employees. Mr. Negi has relied upon the following two judgments. 1. Anoop Sharma Versus Executive Engineer, Public Health, (2010) 5 SCC 497 and 2. Mackinnon Mackenzie and Company Limited Versus Mackinnon Employees Union, (2015) 4 SCC 544 . 10. On the other hand, Mr. Y.P.S. Dhaulta, learned counsel for the respondents, had supported the award passed by the learned Tribunal. Mr. Dhaulta argued that there is no perversity in the award passed by the Court of learned Tribunal below that claimants had failed to demonstrate that they had completed 240 days in the preceding year from the date of their verbal termination. It was further argued by Mr. Dhaulta that as it were the claimants who were before the learned Tribunal, therefore, onus was upon the claimants to prove that they had completed 240 days in the preceding 12 months. Mr. It was further argued by Mr. Dhaulta that as it were the claimants who were before the learned Tribunal, therefore, onus was upon the claimants to prove that they had completed 240 days in the preceding 12 months. Mr. Dhaulta further submitted that as the project against which claimants were engaged stood completed, the services of the claimants could not have been continued without there being availability of any work and as such also, the disengagement of the claimants was not contrary to law and findings returned to this effect by the learned Tribunal below did not warrant any interference. Lastly, it was submitted by Mr. Dahulta that the verbal disengagement of the claimants was otherwise also not assailable because the claimants had failed to place on record any evidence from which it could be inferred that there was any violation of the provisions of Industrial Disputes Act. On these bases, it was argued that as there was no merit in the petitions, the same deserves to be dismissed. 11. I have heard the learned counsel for the parties and also gone through the impugned award as well as the documents placed on record. 12. It is not in dispute that petitioners/claimants in both these petitions had completed more than 240 days in the preceding 12 months as from the date when their services were verbally terminated in October, 1996. In fact this has not even been disputed during the course of arguments by learned counsel for the respondents. In the case of petitioner Bodh Raj the same is evident from document at page 17 and 19 of the record of learned Tribunal as well as from the statement of MW1 Jitender Sharma, who in his cross examination has admitted that Bodh Raj had complete 240 days in the preceding year from the date of his termination. In the case of Desh Raj, it has been admitted by the employer that the workman was engaged on 01.05.1995 and his services were terminated on 31.08.1996. No mandays chart has been placed on record by the employer to persuade this Court to the contrary that said workman had not completed more than 240 days in the preceding 12 months as on the date when his services were verbally terminated. No mandays chart has been placed on record by the employer to persuade this Court to the contrary that said workman had not completed more than 240 days in the preceding 12 months as on the date when his services were verbally terminated. Therefore, as it stood proved on record that both the petitioners had completed more than 240 days in the preceding 12 months from the date of their verbal disengagement, their said disengagement prima facie is not sustainable in law as the same is in violation of the provisions of Section 25(f) of the Industrial Disputes Act as also admittedly before their termination neither any notice was given to them nor they were paid wages in lieu of such notice. 13. There is another aspect of the matter, which also renders the award passed by learned Tribunal below not sustainable in the eyes of law. It has been held by Hon’ble Supreme Court in Anoop Sharma Versus Executive Engineer, Public Health, (2010) 5 SCC 497 , that if a workman is retrenched verbally or if he was simply asked not to come on duty, then the employer will be required to lead tangible and substantive evidence to prove compliance with clauses (a) and (b) of Section 25-F of the Act. In the present case, it is apparent from the reply filed to the claim petitions by the management that the services of both the claimants were retrenched orally. There is no evidence what to talk of tangible and substantive evidence produced on record by the management that there was compliance of clauses (a) and (b) of Section 25-F of the Industrial Disputes Act. Therefore, also the award passed by learned Tribunal is not sustainable in the eyes of law and the same is liable to be quashed and set aside. 14. Therefore, also the award passed by learned Tribunal is not sustainable in the eyes of law and the same is liable to be quashed and set aside. 14. Hon’ble Supreme Court in Mackinnon Mackenzie and Company Limited Versus Mackinnon Employees Union, (2015) 4 SCC 544 , while relying upon its earlier judgment, delivered in Anoop Sharma Versus Executive Engineer, Public Health, (2010) 5 SCC 497 , supra, has held that the termination of an employee in violation of mandatory provisions of Chapter 5(a) and 5(b) of the Industrial Disputes Act is void ab initio in law and ineffective and suffers from nullity, in the eye of the law and in the absence of very strong and compelling circumstances in favour of the employer, the Court must grant declaration that the termination was non est and therefore the employees should continue in service with full back wages and award all the consequential benefits. 15. There is another factor which is also weighing with this Court while it is setting aside and quashing the award under challege and the same is that in an original application filed before the Central Administrative Tribunal, Chandigarh Bench by the workmen, similarly situated persons as the present petitioners, learned Tribunal held the verbal termination to be non est in the eyes of law and had ordered their re-engagement and the order passed to this effect by the learned Administrative Tribunal has been affirmed by this Court in CWP No. 55 of 2002 vide judgment dated 05.05.2008. It has not been disputed by the respondents that original applicants before the Central Administrative Tribunal (CAT) were not similarly situated as the petitioners. Therefore, also in my considered view, the award passed by learned Tribunal below cannot be sustained and relief of reengagement cannot be denied to the petitioners. 16. In view of above discussion, the writ petitions are allowed and award under challenge passed by the Court of learned Presiding Officer, Industrial Tribunal-cum-Labour Court-1, Chandigarh, Camp at Shimla, No. 1 of 2002, dated 07.09.2010 is quashed and set aside and the respondents are directed to re-engage the petitioners with continuity in service, full back wages and all consequential benefits which are due and admissible be granted to them from the date of their termination onwards. The writ petition is disposed of in the above terms, so also the pending miscellaneous applications, if any.