IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.16858 of 2003 Date of decision: 06.11.2009 State of Haryana ....Petitioner versus Shri Pritam Singh and another ...Respondents. CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. D.S.Nalwa, Additional Advocate General, Haryana, for the petitioner. Mr. Naveen Daryal, Advocate, for respondent No.1. ---- 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. (Oral) 1. The writ petition challenges the award passed by the Labour Court directing reinstatement with continuity of service and back wages. The contention by the workman was that he had been employed on 01.04.1999 till 31.05.2000 when he was illegally terminated from service. The contention taken by the management was that there had been no form of employment with the workman and that he had never operated any of the vehicles of the department. The attempt by the workman was, therefore, under the circumstances, to produce photocopies of log book the original of which was said to be in the vehicle and the log book contained the reference to his name as a person, who was operating the vehicle. The management had also produced the Civil Writ Petition No.16858 of 2003 - 2 - relevant records but contended that log book had been tampered with by the workman by entering his name. The Labour Court found that if the original log book were stolen by the workman, the management would have registered a complaint to the police and the same having not been done, an adverse inference was to be drawn. 2. Before the Labour Court, the workman was anxious to show that there had been a contract of employment and therefore, he produced a copy of the contract alleged to have been entered into between the workman and officer representing PWD (M-28) that showed that he had been employed for a term of 89 days. The finding of the Labour Court was pinned to the fact that there had been no complaint to the police by the management and therefore, the defence cannot be true and found that the workman had completed 240 days of service and therefore, he was entitled to reinstatement with continuity of service and back wages. 3. Learned counsel appearing for the petitioner namely, Mr. Nalwa contended that the entries in the log book had been denied as not credible evidence in view of the alleged tampering done by the workman and therefore, the document could not be the basis for finding that there was a contract of employment between the workman and the management. Shri Naveen, counsel appearing for the workman, however, points out to the evidence of Ram Bilas, Junior Engineer in the office of the Xen. Mechanical, Gurgaon, who admitted that the signatures of the Head Clerk in SDE were in the log book and in the original book which he had produced before the Labour Court in the first page, the name of the driver had been entered, but struck off. This, according to the Civil Writ Petition No.16858 of 2003 -3 - learned counsel for the workman, would show the duplicity of the management in denying the genuineness of the document when there was a clear of entry of the name of the workman in the document produced by the management but the workman's name should have been served only the management. There was also a reference to the evidence of MW-1 when he was confronted with Mark-38 which he admitted to be in his hand writing and it recited a fact that he was sending the driver Pritam Singh to collect some goods. It is seen from his evidence that the witness had no explanation to give to the circumstances under which Mark-38 had been written. A gate register was also confronted to the said witness which, according to the workman, contained the signature of the witness, but he denied that the document had contained his signature, although the name was found in the document. The fact that the workman's name was found in the original of the log book in the first page which was not attacked by the management as having been fabricated by the workman and for which no explanation was coming as to how the name was got struck off and the receipt in Mark-38 that described the petitioner as the driver in the hand writing of MW-1 definitely lend credibility to the contentions of the workman that he was actually the driver under the management and the plea of the management that there was no form of engagement of the workman was not true. The defence of the management in completely denying such a relationship was false and the Labour Court was justified in its conclusion that he was a workman employed by the respondent. Civil Writ Petition No.16858 of 2003 - 4 - 4. Learned counsel appearing for the State would submit that even as per the contention of the workman, he had been employed on a contract and a contractual employee for a particular term of time as to time could not complain of retrenchment after the period stipulated under the contract elapsed. The contractual engagement itself had not been attacked as a contrivance merely to prevent the workman from claiming the benefit, though the plea of unfair labour practice has been made by the workman in a different context namely, that the management was employing some other driver after terminating the services of the workman. It was also the contention of the workman in his claim statement that there had been a violation of Section 25-G of the Industrial Disputes Act setting out a circumstance of some junior workers, who had been working alongside him were allegedly retained, while terminating the services of only the workman. Although the workman was merely employed for a period of 89 days, he had continued his employment beyond the period upto 240 days and more, and hence, I do not find the provisions of Section 2(oo)(bb) are attracted. But still the issue of whether the workman is entitled to be reinstated shall be considered in the context of number of days that he had worked, the nature of employment, the availability of work and the contentions which the workman himself had made with reference to the nature of his engagement. The workman who was employed for a period of 89 days and who continued his employment, is not a person who could claim that he had any definite tenure of employment. While I uphold the contention of the workman that there was a violation of Section 25-F, I still do not Civil Writ Petition No.16858 of 2003 - 5 - think that it is a case to merit, the relief of reinstatement. However, the management had taken a false case and that had led the workman the solace during the pendency of whole of the proceedings to secure the benefit of Section 17-B of the Industrial Disputes Act. An additional amount of Rs.35,000/- for the termination of service which was not in compliance of Section 25-F would, in my view, would meet the ends of justice. The award of the Labour Court is, under the circumstances, set aside and modified to accommodate the relief of compensation of Rs.35,000/- to the workman. The finding relating to the status of the claimant as a workman is retained and the award suffers only a modification with reference to the ultimate relief of reinstatement which was granted by the Labour Court. 5. The writ petition is, under the circumstances, ordered with such modification as detailed above. Having regard to my finding that the management was taking up a false plea, they are also liable to pay a sum of Rs.5,000/- to the workman. The writ petition is disposed of in the above terms. (K.KANNAN) 06.11.2009 JUDGE sanjeev