IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.11771 of 2008 Date of decision:06.08.2009 Indian Hardware Industry Ltd. …Petitioner Versus Presiding Officer, Labour Court-II, Faridabad and another …Respondents. 2. Civil Writ Petition No.2075 of 1991 Indian Hardware Industry Ltd. …Petitioner Versus Presiding Officer, Labour Court-II, Faridabad and another …Respondents CORAM: HON’BLE MR. JUSTICE K.KANNAN Present: Mr. R.S.Sihota, Senior Advocate, with Mr. B.R. Rana, Advocate, for the petitioner. Mr. A.P. Bhandari, Advocate, for respondent No.2. ---- 1. Whether reporters of local papers 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. I. Civil Writ Petition No.11771 of 2008 1. A Time-keeper appointed on 13.02.1984 was ordered to be retrenched on 26.09.1997. A claim through demand notice and refusal was the basis of dispute that stood referred to the Labour Court for adjudication. Before the Labour Court, it was contended that the termination had been effected without complying with the statutory requirements of Section 25-F and that further, juniors in service had been retained, while he was singled out for discriminatory treatment and Civil Writ Petition No.11771 of 2008 - 2 - retrenched. The response by the management was that the establishment was running through tough times and there had been slicing down the number of units of establishment and reducing the man-power to cut down the expenses. The workman had been employed in time office of the Company which was computerized and therefore among the two grades of workmen in computer department who were in the time office, the workman was the junior most and therefore, his services were terminated. According to the management, compensation had been given along with retrenchment order and therefore, the petitioner was not entitled to any relief. 2. It is an admitted fact that retrenchment compensation was not accepted by the workman and the point that fell for consideration before the Labour Court was whether the management was correct in its statement that it had retained a separate seniority list for persons in various divisions and that there had been no violation of the principle of a junior being retained and a senior employee being terminated from service. The Labour Court rejected the contention of the management and held the seniority list which the management had produced pertained only to three divisions namely Accountant Section, Store and Time office and a combined seniority list applicable for the same category of workmen in other sections of the same establishment had not been produced. The Labour Court relied on the fact that the management witness had admitted in evidence that there were 39 employees as per the copy of the attendance register and he had also admitted that the management had not prepared a seniority list for all the workmen of the Civil Writ Petition No.11771 of 2008 - 3 - Company. The Labour Court, therefore, found that the management had failed to prove that the workman was the junior most employee of the Company for the purpose of retrenchment and consequently, allowed relief of reinstatement with back wages and cost was assessed at Rs.5,000/-. 3. The first objection which had been raised on behalf of the workman was that the order of termination was bad on the ground that between the same parties, there was industrial adjudication pending before this Court in Civil Writ Petition No.2075 of 1991 against the award passed on 19.09.1990 and hence being contrary to the provisions of Section 33-(2)(b), the termination was bad. This objection, in my view, is devoid of substance. The interdict against alteration of terms of service obtains only during the pendency of the proceedings before the Labour Court or the Tribunal or the Authorities mentioned in the Section and not when the proceedings are pending before the High Court (National Machinery Manufacturers Ltd. Versus P.D.Vyas-(1961) II LLJ 274 (Bom.). The contention raised by the workman in that regard, does not merit acceptance 4. The learned counsel appearing for the management submits that the admission that there were 39 persons in the employment of the petitioner-Company itself will not dictate also a responsibility to maintain a seniority list for all the divisions of the factory, especially when it was clearly brought out through evidence that a seniority list of the staff prepared under Rule 1976 of the Industrial Disputes (Punjab Regulation) Act, 1958 had been published for the purpose of Civil Writ Petition No.11771 of 2008 - 4 - retrenchment also and sent to the Labour Inspector and the Labour Commissioner. A category of time office had been specifically spelt out and so long as there was no breach in the principle of retrenching a person who was the junior most within the category, the workman could have no relief. The learned counsel appearing for the workman refuted the contention on the ground that the management had not placed the basis for several categories or the categories that accommodated all the 39 persons. The document produced by the management related only to three sections covering only six employees and the management had deliberately withheld the details with reference to all the employees only to conceal the fact that junior persons doing unskilled and semi-skilled work were still being retained. 5. The contention of the workman, in my view, deserves approbation. The learned counsel states that the Time-Keeper’s job is a non-technical simple mechanical job which could be performed by any other person on the same salary and there were persons in the establishment who had been lower in terms of seniority and whose educational qualifications were no better than those who were being retained in other departments in the same factory. We cannot omit to note that the management has not come out with all relevant facts. No information is shared with the Court as to the number of categories that are operating within the establishment and how the various categories of the staff have been split under the respective educational qualifications and experience. There are admittedly other persons drawing similar pay as that of the workman and who are also juniors to him in terms of entry into the factory, doing Civil Writ Petition No.11771 of 2008 -5 - similar non-technical, semi-skilled jobs and they were still being retained. I cannot accept the contention that the Time-Keeper’s office is of any specialized category that only some technical persons could be employed and that separate categories are required to be maintained. Even if such separate categories could be maintained, it is not shown that there is any rational basis in assigning to the workman only in a particular category and that his deployment in the establishment cannot be made elsewhere in several other categories that may exist. More than stating that such categorization is not possible, the observation here is that no adequate explanation is forthcoming from the management as to why the workman cannot be employed in any other job in the same establishment without breaking the rule of seniority and terminating the services of a person who is lower in the order of seniority. If the seniority is maintained only for six persons and not for all the 39 employees, it only means that the management is trying to shield some other workman who could have no better claim to be retained when the workman was singled out for removal. 6. The learned counsel also relies on the decision of this Court in State of Punjab through its Secretary Labour Punjab, Chandigarh and another Versus Jaswant Singh and another-2004(3) RSJ 422, that held that if juniors were retained, termination of senior will not be tenable. The principle ‘first come last go’ cannot be violated and if such violation takes place, the senior employee is entitled to seek for reinstatement. 7. The Labour Court’s award is fully justified under the circumstances and it is dismissed. Civil Writ Petition No.11771 of 2008 - 6 - II. Civil Writ Petition No.2075 of 1991 8. The above writ petition relates to an earlier award passed by the Labour Court directing termination of service effective from 25.07.1986. The Labour Court’s award had culminated in a direction for reinstatement and the writ petition challenges the earlier order of termination. 9. The termination was on account of unauthorized absence without sanction of leave. The workman had given evidence to the effect that he fell ill on 14.01.1985 and remained in treatment at ESI Hospital, Safdarjang, New Delhi till 30.07.1986. He obtained a fitness certificate and presented himself for duty but he came to know at that time that he had been terminated from service. The provision in the standing orders of the establishment that gives the power to terminate the services for prolonged medical leave beyond three months was contrasted by the Labour Court with Section 73 of Employees State Insurance that cast an embargo on the powers of the employer to dismiss the employees who was under treatment for sickness. Regulation 98(iii) of ESI (General) Regulation empowers an employer to discharge an employee if he is on medical leave for more than 16 months for illness enumerated which includes, hemiplegia, a disease suffered by the workman. The regulation contemplates the decision to discharge 'on due notice'. Admittedly, such notice had not been given to the workman. The Lower Court found fault with the management that purported to terminate without following the mandate of Section 25-F of the Industrial Disputes Act. The reasoning Civil Writ Petition No.11771 of 2008 - 7 - adopted by the Labour Court is sound and no exception could be taken to it. 10. The awards passed in the respective cases are confirmed and both the writ petitions are dismissed. (K.KANNAN) JUDGE 06.08.2009 sanjeev