CWP No 14102 of 1999 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH CWP No 14102 of 1999 Date of decision August 20, 2009 The Mansa Cooperative Spinning Mills ....... Petitioner Versus Ramesh Chand and others ........ Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:- Mr. Puneet Kansal, Advocate for the petitioner. Mr. Rajiv Sharma, Advocate for the respondents. **** 1. Whether reporters of local newspapers may be allowed to see the judgment ? 2. To be referred to the reporters or not? 3. Whether the judgment should be reported in the digest? K. Kannan, J(oral). 1. The challenge before this Court is the award accepting reference sought at the instance of the workman that he was illegally terminated from service. The contention of the workman had been that he was terminated from service w.e.f. 6.11.1991 while the Management contended that no termination had been effected by the Management but he had absented himself from duty without any leave or permission from 14.11.1991. It was an admitted case by either party that there was a strike in the Mill on 14.11.1991 when the workman and many others absented from duty. An agreement had been entered into between the Management and the Union on 30.11.1991 (Ex.M/1) under the terms CWP No 14102 of 1999 2 on which the workers were supposed to join duty on 10.12.1991. The Management contended that when the workman did not join, a paper publication had been made on 30.12.1991 (Ex.M-2) directing the workman to come and join within a particular date, failing which he would face the consequences of removal of service. A meeting was held between the Management and the representative of the Union on 2.1.1992 before the Deputy Commissioner, Bathinda (Ex.M-W) and it was agreed therein that such of those persons against whom there were no police complaints shall be allowed to join duty after 15.1.1992. 2. The contention of the Management was that the workman did not join on 15.1.1992 also and therefore it should be taken that there had been a voluntary abandonment from service. The workman on the other hand, contended that he did report for duty but he was not permitted to join. The reference was ultimately made on a demand by the workman that he had not been permitted to join and that the termination must be deemed to have taken effect as from 6.11.1991. Before the Labour Court, evidence had been adduced on either side and the parties stick to the respective stands. The workman stated that he had made himself present as per the settlement but he was not permitted to join while the Management stated that they were always willing to take him back but the only objection was that the workman shall not be allowed back wages. The workman did not avail of such an offer and he had abandoned the service. 3. In view of the rival contentions between the parties, the Labour Court found that the Management had not even attempted to take any specific action terminating the service by constituting an enquiry or in any other manner letting know the workman that his services were terminated. The Labour Court held that there was no evidence that any term of domestic enquiry had been conducted, while CWP No 14102 of 1999 3 the workman had categorically deposed that he was not allowed to join the duty despite the settlement before the Additional Dy. Commissioner, Bathinda. In the absence of any evidence of registration of any police case against the workman, which alone was the disqualification under the settlement, it was to be taken as a case of termination without compliance of statutory provisions of Section 25-F of the Industrial Disputes Act, 1947. 4. Learned counsel for the petitioner assails award of the Labour Court on the ground that when settlement between the Management and Union that took place on 30.11.1991 provided specifically for resumption of duty before a particular date and when the workman did not join the consequences have to be only taken as from the terms of the settlement itself and no further proceedings were necessary to put an end to the termination of service. Again when on 2.1.1992 when the settlement had been brought before the Deputy Commissioner of Labour that provided for opportunity for the workman to resume duty before 15.1.1992 and the workman did not avail of the same, the workman cannot complain that there had been any illegal termination. Learned counsel would argue that there ought to some definite proof that the workman had offered his services as per the settlement and that he did not prove the same. A definite proof of such a conduct according to the learned counsel should have been made by issuing a notice to the Management or a complaint to some authorities that in spite of his offer for resumption of duty, he had not been permitted to rejoin. 5. When the issue is whether the termination alleged have been made on a particular date was justified or not the case has to be examined only on the basis of what kind of evidence would be possible in a given case. It is admitted on all fours that at the last settlement on 2.1.1992, there had been an offer by the Management to allow the workman to join before 15.1.1992, if there was no police complaint against CWP No 14102 of 1999 4 such a person. It is no body's case that there was any police complaint against the workman and that there was any disqualification for the workman to rejoin duty. If the workman contended that he offered himself for services and the Management contends that he did not present himself as contended by him, beyond oral assertions of the workman no other proof will be possible. A notice by the workman which the learned counsel expects of the workman to serve would be meaningless, as there was indeed a demand notice that gave rise to a reference. The Courts invariably hold that even a delay in seeking reference will in no way take away the right of the workman and if there was delay in seeking a demand for reinstatement, it will not be taken as a circumstance that will take away the right of the workman. On the other hand, it shall be duty of the Management to ensure that the services of the workmen are lawfully terminated by any process that is compatible with law. It should have been done through records by either express order of termination or in some manner striking of the workman's name from the rolls in purported exercise of the power under the settlement. The documentary proof in such a case shall be required to be produced more by the Management than having to look for evidence from the workman. The best evidence that the workman could have given was only an oral assertion that he was prepared to join duty but he was not permitted to do so. 6. Learned counsel appearing for the petitioner refers me to the decision in Mansoori Brothers Vs. Chhotu Khan, 2001 (1) SCT 47 which states as follows:- “It is settled proposition of law that burden of proof always lies upon the party who makes certain allegations and seeks relief on it. The Court has to address itself whether the party, which has made the allegations, has discharged the burden of proving the allegations. Moreso, the party must succeed on the CWP No 14102 of 1999 5 strength of its own case rather than on the weakness of the case of the other side. Such party is under a legal obligation to prove its case irrespective of the fact whether the opposite party has proved its case or not. “A mere destruction of the case of the defendant in absence of establishment of his own case, carries the petitioner nowhere.” (Vide J.P. Ravidas V. Navyuvak Harijan Uthapan Multi Unit Industrial Co-op. Society Ltd., 1996 (2) RRR 626; 1996 (9) SCC 300: AIR 1996 SC 2151; HMM Ltd. Vs. Director General, Monopolies and Restrictive Trade Practices Commission, 1998 (6) SCC 485; AIR 1998 SC 2691; Kala V. Madho Parshad Vaidya, 1998 (2) RCR (Rent) 279 (SC) 1998 (6) SCC 573; AIR 1998 SC 2773; Moran Mar Basseliou Catholicos Vs. Most Rev. Mar Poulose Athanasius, AIR 1954 SC 526 and Moran Mar Basselios Catholics Vs. Thukalan Paulo Avira, AIR 1959 SC 31.” 7. The burden of proof that is expected on the workman shall always taken in the context of how that burden is discharged. In this case, I have examined the oral assertion of the workman was sufficient to prove the same. The award of the Labour Court directing reinstatement was perfectly justified. As regards the claim for back wages, the earlier contention of the Management had been that they were willing to take the workman but their only contention was that the workman shall not be entitled with back wages. The workman was not prepared to accept such an offer. Back wages is not a necessary corollary in all cases where a workman is found entitled to reinstatement. The Hon'ble Supreme Court has observed in Talwara Cooperation Credit and Service Society Ltd. Vs. Sushil Kumar (2008) 9 SCC 486. that there is paradigm shift in the approach of the Courts requiring the workman to establish that he was not gainfully employed during the period. Unfortunately, there is no proof as regards the employment status of the CWP No 14102 of 1999 6 workman but, all forms of reliefs are denied on the ground that the Mill had been ordered to be wound up on 30.4.1997 and the entitlement of the workman shall therefore be computed only up to the date of order of winding up on 30.4.1997. The order of the reinstatement is not made in view of the contention as reported that Company is wounded up. 8. The compensation in lieu of reinstatement shall be the sum equivalent to the back wages payable from the date of termination viz. 6.11.1991 up to the date of the order of winding up. The workman shall be treated as workman on the rolls of the Company. 9. The workman shall have appropriate remedy before the Official Liquidator for lodging his claim for the above amount as well as terminal benefits and securing reliefs in the process known to law. It is also submitted by the learned counsel for the petitioner that a daily wager shall never be permitted to be reinstated and that he will have remedy only compensation. There is no such law as extravagantly contended by the learned counsel for the petitioner and in any event, in the changed circumstances, only compensation is being ordered. 10. The writ petition is disposed of in the above terms. (K. KANNAN) JUDGE August 20, 2009 archana