IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 19274 of 2001 Date of decision: 18.02.2009 Harjinder Kaur wife of Sewak Singh .....PETITIONER VERSUS Persiding Officer, Labour Court, Bathinda and others ..... RESPONDENTS CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. Harinder Sharma, Advocate, for the petitioner. Mr. T.P.Singh, Advocate, for respondent No. 3. *** AUGUSTINE GEORGE MASIH, J. (ORAL) In the present writ petition, the challenge is to the award dated 27.03.2001 passed by the Labour Court, Bathinda (Annexure P-5) vide which the reference has been answered against the workman holding that she had not completed 240 days in the 12 preceding months from the date of her termination despite of counting Saturdays, Sundays and National holidays as working days in favour of the workman. Counsel for the petitioner contends that a finding has been recorded by the Labour Court that the workman has, by counting these Saturdays, Sundays and National holidays, completed 234 days in the 12 CWP No. 19274 of 2001 -2- preceding months from the date of her termination. Counsel contends that the Management has resorted to unfair labour practice so that she could not complete 240 days and would be deprived of the benefit of the provisions of Section 25-F of the Industrial Disputes Act. He contends that the resort to such unfair labour practice has been held by a Division Bench of this Court in the case of Kapurthala Central Co-operative Bank Ltd., Kapurthala vs. Presiding Officer, Labour Court, Jalandhar and others, 1984 (1) SLR 435, that this would amount to unfair labour practice and the workman would be entitled to the benefit of retrenchment as it would fall within the definition as such. I have heard counsel for the parties and have gone through the records of the case as well as the impugned award. As per Section 2 (ra) of the Industrial Disputes Act, the term 'unfair labour practice' has been defined to mean 'any of the practice specified in the Vth Schedule'. A perusal of the 5th Schedule of the Industrial Disputes Act would show that the assertion, which has been put forth by the counsel for the petitioner, is not included therein. The counsel for the petitioner has tried to bring in Clause 5 (a) of the Vth Schedule of the Industrial Disputes Act to say that it would amount to victimization and, therefore, would be unfair labour practice. This contention of the counsel for the petitioner cannot be accepted for the reason that no such assertion was made either in the claim petition or during the proceedings before the Labour Court nor any evidence was produced before the Labour Court nor has there been proved before the Labour Court, which could be taken into consideration to come to a conclusion that there was some semblance of victimization, in case the allegation, that the workman has been terminated from service, is found correct. A perusal of the award and the records would further show CWP No. 19274 of 2001 -3- that a positive assertion was made by the respondent-Management that the workman had abandoned the job. The demand notice was served by the workman on 09.06.1996 and while producing evidence before the Labour Court, the workman has not been able to prove or assert that she had been approaching the respondents during this period or thereafter nor any proof has been put forth that she had made herself available for the job which is alleged to have been abandoned by her. Even if what has been asserted by the counsel for the petitioner is accepted, then also the onus was on the workman to prove that she had worked for 240 days with the respondents. The onus having not been discharged and specifically on the basis of the record, which has not been disputed by the workman, a finding has been recorded by the Labour Court that the workman, after getting the benefit of Saturdays, Sundays and National holidays, only has completed 234 days in the 12 preceding months. No violation of the Industrial Disputes Act could be said to have been committed, which would entitle her the protection of Section 25-F of the Industrial Disputes Act. In view of the above, no merit is found in this petition and the same stands dismissed. ( AUGUSTINE GEORGE MASIH ) JUDGE February 18, 2009 pj