Civil Writ Petition No.5391 of 1992 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:-18.5.2011 The Panj Garain Kalan Cooperative Agricultural Service Society Limited, Panj Garain. ....Petitioner Versus Presiding Officer, Labour Court, Bhatinda and another ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Sumeet Mahajan, Advocate for the petitioner. Nemo for respondent No.1. Mr.Vikas Singh, Advocate for respondent No.2. M ehinder S ingh S ullar , J. (Oral) Concisely, the facts, which need a necessary mention for the limited purpose of deciding the core controversy, involved in the instant writ petition and emanating from the record, are that Jaswinder Kumar, workman-respondent No.2 (for brevity “workman”) was appointed as a Salesman (Essential Commodities) by the management of the petitioner-The Panj Garain Kalan Cooperative Agricultural Service Society Limited (for short “management”), by virtue of resolution (Annexure P1) at a monthly salary of ` 650/-. 2. The workman claimed that he worked with the management since 29.10.1988 till 15.6.1989 when his services were stated to have been illegally terminated, without any notice, charge sheet, inquiry or compensation. The industrial dispute raised by the workman was referred to the Industrial Tribunal- cum-Labour Court (in short “LC”) for adjudication by the appropriate Government, in view of section 10 of The Industrial Disputes Act, 1947 (hereinafter to be referred as ”the Act”). 3. According to the workman that as his services were illegally terminated by the management without complying with the mandatory provisions Civil Writ Petition No.5391 of 1992 2 of Section 25 of the Act, therefore, he was entitled to reinstatement with continuity of service, full back wages and all other benefits. 4. The petitioner-management contested the claim of the workman and filed written statement dated 12.6.1990, in which, objection of locus standi of the workman to file the claim petition, was raised as according to it, he did not complete the employment of 240 days in a calendar year. It was pleaded that the services of the workman were terminated as per rules. The remaining allegations contained in his claim petition were denied by the management and it prayed for its dismissal. 5. In the wake of pleadings of the parties, the Presiding Officer of the LC framed the following issues for adjudication of the case:- 1. Whether the reference is not maintainable as alleged in the legal objections of the written statement? 2. Whether the order of termination of services of the workman is justified and in order? 3. Relief. 6. The parties to the lis, in order to substantiate their respective stands, produced the evidence on record. Taking into consideration the entire material on record, the LC accepted the claim of the workman, decided issue Nos.1 and 2 against the management and reinstated him with continuity of service, full back wages and other consequential benefits, by means of impugned award dated 27.2.1992 (Annexure P5). 7. The petitioner-management did not feel satisfied and preferred the present writ petition, challenging the impugned award (Annexure P5), invoking the provisions of Articles 226 and 227 of the Constitution of India in this regard. 8. After hearing the learned counsel for the parties, going through the record with their valuable help and after deep consideration over the entire matter, to my mind, there is no merit in the instant writ petition in this context. 9. Ex facie, the argument of learned counsel for management that since Civil Writ Petition No.5391 of 1992 3 the workman was appointed for 89 days, as per resolution (Annexure P2) and he did not complete the employment of 240 days in a calendar year, so, he was not entitled to reinstatement in service, is not only devoid of merit but misconceived as well. 10. As is evident from the record, that positive case of workman from the very beginning, was that he was employed as a Salesman by the management, he worked with it with effect from 29.10.1988 to 15.6.1989, completed more than 240 days and his services were abruptly terminated without complying with the mandatory provisions of the Act. He has so stated, on oath, while appearing as his own witness before the LC. No doubt, the management attempted to produce its Secretary Balwant Singh, who made statement (Ex.P-2A) before the LC on 19.7.1991 and stated that the workman was initially appointed on 27.10.1988 for 89 days and after the expiry of said period, his services would be deemed to have come to an end, but no implicit reliance can be placed on his statement, because his cross-examination was deferred and he was directed to bring the attendance register on the next date of hearing. What to talk of producing the attendance register on the next date of hearing, he himself did not dare to step into the witness box thereafter, for cross-examination. It is now well settled that unless the witness is duly cross-examined by the opposite side, his evidence cannot legally be considered to decide the controversy between the parties. That means, the management failed to produce the record/attendance register and withheld the best possible evidence despite the specific direction of the LC. In that eventuality, an adverse inference is inevitable against it. In this manner, the statement of workman remained un-rebutted in this respect. 11. Meaning thereby, it stands proved on record that the workman had completed 240 days of his employment and his services were illegally terminated in complete violation of provisions of section 25 of the Act and the LC has rightly reinstated him with continuity of service and full back wages. Moreover, the LC Civil Writ Petition No.5391 of 1992 4 has noticed the fact on the basis of un-rebutted evidence of the workman that after the termination of services of the workman, the management had employed one Mohinder Singh against the vacancy caused on his (workman) termination. This fact has no where been denied by the management. Meaning thereby, no material, much less cogent, is forth coming on record, even to suggest remotely that any offer was made to the workman to join as a Salesman before appointing Mohinder Singh in his place. In this view of the matter, even otherwise, the retrenchment of workman is illegal and against the statutory provisions of the Act, in view of the law laid down by Hon'ble Apex Court in case Harjinder Singh v. Punjab State Warehousing Corporation 2010(3) S.C.C.192. Therefore, the contrary arguments of learned counsel for management “stricto sensu” deserve to be and are hereby repelled under the present set of circumstances. 12. Thus seen from any angle, the LC, having considered and appreciated the entire relevant material/evidence brought on record by the parties, in the right perspective, has recorded the valid reasons and rightly reinstated the workman with full back wages and continuity of service. Such award containing valid reasons, cannot possibly be interfered with, while exercising the writ jurisdiction of this Court, unless and until, the same is illegal and perverse. Since no such patent illegality or legal infirmity has been pointed out by the learned counsel for the management, so, the impugned award (Annexure P5) is liable to be and is hereby maintained in the obtaining circumstances of the case. 13. No other point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 14. In the light of aforesaid reasons, as there is no merit, therefore, the instant writ petition is hereby dismissed as such. (Mehinder Singh Sullar) 18.5.2011 Judge AS Whether to be referred to reporter?Yes/No