Civil Writ Petition No. 961 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 961 of 2011 Date of Decision: [SECTION].7.2013 Vijender Singh Petitioner. Versus [ENTITY] and another Respondents. CORAM: HON'BLE MR.JUSTICE [ENTITY] Present: Mr. [ENTITY], Advocate for the petitioner. Mr. [ENTITY], DAG, Haryana.
1.Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest? [ENTITY] J.(ORAL):
Workman is the petitioner and he impugns the award dated 23.4.2010 (Annexure P-1), passed by the learned Labour Court, Hisar, thereby denying him the relief of reinstatement with continuity of service and awarding only Rs. 10,000/- as compensation, in spite of the fact that the service rendered by the petitioner was four years.
The facts of the case are hardly in dispute. Petitioner was appointed by the respondent Management as a class IV employee in Government Primary School w.e.f. 24.7.2001 and he was removed from service w.e.f. 1.8.2005 by verbal orders given by the Head Teacher of the school. Neither any notice of one month was issued nor salary in lieu thereof was paid to the petitioner- workman. Retrenchment compensation was also not paid to the petitioner workman. The industrial dispute having been raised by the petitioner, it was referred to the learned Labour Court. The petitioner filed his claim statement which was replied by the respondent Management. Parties led their respective evidence. Allegations of misconduct and absence from duty was levelled against the petitioner. However, no domestic inquiry was conducted by the respondent Management. After appreciating the evidence led by both the parties, the learned Labour Court recorded a positive finding that the petitioner workman had continuously worked with the respondent Management from 24.7.2001 to 1.8.2005 and his services were illegally retrenched on 1.8.2005, without following the mandatory provisions of [SECTION] of the [ACT] ('the Act' for short). It was so proved by [ENTITY], who appeared as MW1, that the petitioner was appointed on 24.7.2001 and he worked till 1.8.2005. It was also admitted by this witness of the Management that before removing the workman from service, no compensation was given to him. After recording the above said positive finding, declaring termination of the petitioner as bad in law, still the learned Labour Court observed that since the workman was engaged as daily wager without following the rules and procedures under [SECTION] and [SECTION] of the [ACT], he was not entitled for reinstatement and was entitled only for grant of back wages. Reliance was placed on the judgment of Hon'ble Supreme Court in [PRECEDENT] and other judgments. Thus, denying the relief of reinstatement with continuity of service, the learned Labour Court, vide impugned order dated 23.4.2010 granted amount of Rs. 10,000/- towards compensation, to the petitioner for four years of service rendered by him.
Feeling aggrieved, the petitioner has approached this Court by way of instant writ petition.
Notice of motion was issued and pursuant thereto, written statement was filed on behalf of respondent No.2.
Learned counsel for the petitioner submits that once the learned Labour Court has recorded positive finding that the services of the petitioner workman were illegally terminated, the learned Labour Court ought to have adopted the normal rule of reinstatement with continuity of service and back wages. He further submits that there was no exceptional circumstance in the present case to deny the relief of reinstatement to the petitioner. He next contended that so far as the judgment of Hon'ble Supreme Court in [PRECEDENT]'s case (supra) was concerned, in such matter, the respondent Management could not have drawn the benefits out of its own wrong. He prays for setting aside the impugned award by allowing the present writ petition. He also places reliance upon a judgment dated 4.9.2012 passed by this Court in LPA No. [SECTION]78 of 2011 (The [PRECEDENT]) and also judgment dated 12.9.2012 rendered in CWP No. 14925 of 2010 ([PRECEDENT].
On the other hand, learned counsel for the respondent Management submits that the petitioner was not a willing worker. He had been absenting himself. He further submits that before terminating the services, show cause notices were issued to the petitioner. He next contended that the once learned Labour Court held that entry into service was not in accordance the provisions of [SECTION] and [SECTION] of the [ACT], it rightly came to the conclusion that the petitioner was not entitled for the relief of reinstatement with continuity of service. He also submits that since the petitioner workman did not take any averment in his pleadings that he was not employed during all these years, nor he led any evidence in this regard, he was not entitled for any back wages. Finally, he prays for dismissal of the writ petition.
Having heard the learned counsel for the parties at considerable length, after careful perusal of record of the case and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that the impugned order dated 23.4.2010 cannot be sustained and the present writ petition deserves to be allowed. To say so, reasons are more than one, which are being recorded hereinafter.
The witness who was examined on behalf of the respondent Management was MW1-[ENTITY]. In his cross examination, he admitted that the petitioner workman was appointed on 24.7.2001 and he worked till 1.8.2005. This witness of the respondent Management also admitted that while removing the petitioner from the services, no notice, no salary in lieu thereof and no retrenchment compensation was given to him. Thus, it was established on record that the respondent Management clearly violated the mandatory provisions of law contained in [SECTION] of the Act. Once such a positive finding had been recorded by the learned Labour Court, the petitioner should have been granted the relief of reinstatement with continuity of service.
So far as relief of back wages was concerned, the learned Labour Court could have moulded the relief suitably. However, the learned Labour Court has proceeded on misconceived approach, while passing the impugned award, denying the relief of reinstatement with continuity of service, only on the ground that appointment of the petitioner was not in accordance with the provisions of [SECTION] and [SECTION] of the [ACT]. This approach adopted by the learned Labour Court was misconceived on the face of it. Further, this had never been the pleaded case on behalf of the respondent Management. Having said that, this Court feels no hesitation to conclude that the petitioner workman was entitled for reinstatement with continuity of service, instead of awarding only Rs. 10,000/- as compensation. Thus, the impugned award cannot be sustained.
The view taken by this Court also finds support from the judgments of the Hon'ble Court in [PRECEDENT], [PRECEDENT], [PRECEDENT] Vs. Punjab State Warehousing Corporation, 2010 (3) SCC [ENTITY] 192, [PRECEDENT] and [PRECEDENT].
In addition to the above, judgments of this Court in [PRECEDENT]'s case (supra) and in [PRECEDENT]'s case (supra), are also on similar lines.
The relevant observations made by the Hon'ble Supreme Court in [PRECEDENT]'s case (supra), which can be gainfully followed in the present case, are extracted as under:-
"An analysis of the above reproduced provisions shows that no workman employed in any industry who has been in continuous service for not less than one year under an employer can be retrenched by that employer until the conditions enumerated in [SECTION] of the Act are satisfied. In terms of Clause (a), the employer is required to give to the workman one month's notice in writing indicating the reasons for retrenchment or pay him wages in lieu of the notice. Clause (b) casts a duty upon the employer to pay to the workman at the time of retrenchment, compensation equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months. This Court has repeatedly held that [SECTION] of the Act is mandatory and non-compliance thereof renders the retrenchment of an employee nullity.
xxx xxx xxx This Court has used different expressions for describing the consequence of terminating a workman's service/employment/ engagement by way of retrenchment without complying with the mandate of [SECTION] of the Act. Sometimes it has been termed as ab initio void, sometimes as illegal per se, sometimes as nullity and sometimes as non est. Leaving aside the legal semantics, we have no hesitation to hold that termination of service of an employee by way of retrenchment without complying with the requirement of giving one month's notice or pay in lieu thereof and compensation in terms of [SECTION] has the effect of rendering the action of the employer as nullity and the employee is entitled to continue in employment as if his service was not terminated.
xxx xxx xxx
15. In [PRECEDENT] (supra), the Court emphasised that the workman cannot be retrenched without payment, at the time of retrenchment, compensation computed in terms of [SECTION].
[SECTION]. The legal position has been beautifully summed up in [PRECEDENT] (supra) in the following words:
"The underlying object of [SECTION] is twofold. Firstly, a retrenched employee must have one month's time available at his disposal to search for alternate employment, and so, either he should be given one month's notice of the proposed termination or he should be paid wages for the notice period. Secondly, the workman must be paid retrenchment compensation at the time of retrenchment, or before, so that once having been retrenched there should be no need for him to go to his employer demanding retrenchment compensation and the compensation so paid is not only a reward earned for his previous services rendered to the employer but is also a sustenance to the worker for the period which may be spent in searching for another employment. [SECTION] nowhere speaks of the retrenchment compensation being paid or tendered to the worker along with one month's notice; on the contrary, clause (b) expressly provides for the payment of compensation being made at the time of retrenchment and by implication it would be permissible to pay the same before retrenchment. Payment or tender of compensation after the time when the retrenchment has taken effect would vitiate the retrenchment and non-compliance with the mandatory provision which has a beneficial purpose and a public policy behind it would result in nullifying the retrenchment."
In [PRECEDENT]'s case (supra), the Hon'ble Supreme Court in para 13, 19 and 28 of the judgment, observed as under:-
13. "The source of employment, the method of recruitment, the terms and conditions of employment/contract of service, the quantum of wages/pay and the mode of payment are not at all relevant for deciding whether or not a person is a workman within the meaning of [SECTION] of the Act. It is apposite to observe that the definition of workman also does not make any distinction between full-time and part-
time employee or a person appointed on contract basis. There is nothing in the plain language of [SECTION] from which it can be inferred that only a person employed on a regular basis or a person employed for doing whole-time job is a workman and the one employed on temporary, part-time or contract basis on fixed wages or as a causal employee or for doing duty for fixed hours is not a workman.
xx xx xx
19. [SECTION] couched in negative form. It imposes a restriction on the employer's right to retrench a workman and lays down that no workman employed in any industry who has been in continuous service for not less then one year under an employer shall be retrenched until he has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired or he has been paid wages for the period of notice and he has also been paid, at the time of retrenchment, compensation equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months and notice in the prescribed manner has been served upon the appropriate Government or the authority as may be specified by the appropriate Government by notification in the Official Gazette.
xxx xxx xxx
28. In the result, the appeal is allowed. The impugned order is set aside and the award passed by the Labour Court for reinstatement of the appellant is restored. If the respondent shall reinstate the appellant within a period of four weeks from today, the appellant shall also be entitled to wages for the period between the date of award and the date of actual reinstatement. The respondent shall pay the arrears to the appellant within a period of three months from the date of receipt/production of the copy of this order."
Similarly, in [PRECEDENT]'s case (supra), the Hon'ble Supreme Court made the following observations, which aptly apply in the present case:-
"23. 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 liberalisation 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 of 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. 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 of 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."
In the judgment of [PRECEDENT]'s case (supra), the Hon'ble Supreme Court again came to the conclusion observing that "therefore, the normal rule that dismissed employee is entitled to reinstatement in cases of wrongful dismissal has been held to be not without exception." Thus, it is now the established principle of law that once the termination of the services of the workman has been found to be illegal and in violation of the mandatory provisions of [SECTION] of the Act, the normal rule is reinstatement with continuity of service.
However, this rule is not an absolute one. There cannot be any hard and fast rule, nor a straightjacket formula can be laid down. It is equally important to note here that peculiar facts of each case are to be examined, considered and appreciated first, before applying any codified or judgemade law thereto. Further, sometimes difference of one circumstance or additional fact can make the world of difference, as held by the Hon'ble Supreme Court in [PRECEDENT] others, 2002 (3) SCC 533.
Respectfully following the law laid down by the Hon'ble Supreme Court in the above noted cases and applying the same in the present case, it is unhesitatingly held that the learned Labour Court committed a serious error of law while denying the relief of reinstatement with continuity of service to the petitioner workman. Thus, the impugned award cannot be sustained.
During the course of hearing, learned counsel for the respondent Management could not put into service any such substantive argument, so as to persuade this Court to subscribe to the view taken by the learned Labour Court. The argument of the learned counsel for the State that since the petitioner workman did not take any averment nor led any evidence that he remained unemployed during all this period and was not entitled for back wages has force and deserves to be accepted. Thus, the petitioner is not entitled for any back wages.
The learned Labour Court has proceeded on misconceived approach while not directing reinstatement of the petitioner workman, because neither there was any exceptional circumstance pleaded, nor proved on behalf of the respondent Management to make out the present case as an exception to the normal rule. In this view of the matter, the impugned award passed by the learned Labour Court is not sustainable in law.
No other argument was raised.
Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that the impugned award passed by the learned Labour Court is contrary to the law laid by the Hon'ble Supreme Court and the same is hereby ordered to be set aside.
Consequently, the petitioner is directed to be reinstated with continuity of service, but without back wages. The respondent Management is directed to reinstate the petitioner in service within a period of three months from the date of receipt of certified copy of this order.
Resultantly, with the observations made and directions issued here-in-above, the present writ petition stands allowed, however, with no order as to costs.
([ENTITY]) JUDGE [SECTION].7.2013 AK Sharma