IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.11909 of 2000 Date of decision:28.08.2009 Bhim Sen Sharma ...Petitioner versus Presiding Officer, Labour Court, Patiala and others ...Respondents CORAM: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. Sunil Chadha, Advocate, for the petitioner. Mr. Dinesh Nagpal, Advocate, for respondents 2 and 3. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? Yes. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. ---- K.Kannan, J.(Oral) 1. The writ petition is to challenge the award rejecting the reference sought by the workman on the ground that he had been illegally terminated from service on 25.08.1988. The rejection was occasioned by two grounds: one, the reference had been to the effect that the workman had been terminated on 25.08.1988, but it transpired through evidence that the workman had been served with the notice dated 25.08.1988 that prescribed a three months’ period for termination of service to be effective. Accordingly, the termination was to take effect from 25.11.1988 and therefore, the reference stipulating a different date could not avail to the workman the relief which he wanted. Two, the workman had admittedly sought for a reference complaining of the termination of service as illegal and bad, but he withdrew his case before Civil Writ Petition No.11909 of 2000 - 2 - the Court and no proof had been adduced that the case had been withdrawn for any technical defect. The reference sought on the same subject which had been previously allowed to be dismissed as withdrawn, could not be a valid reference. 2. The workman’s contention was that he had been refused permission to continue after 25.08.1988. The management joined issue to state that it had not terminated the services but the workman absented himself, but at the same time, the management also wanted to contend that after his confirmation in service, he had been served with terms and conditions of employment which provided for a right to the management to terminate the services after three months’ notice. The workman had also signed the terms and conditions and had made an acknowledgment of the terms and therefore, after such a notice was served, the workman cannot complain that the termination was bad. The management had yet another contention to make that subsequent to 25.08.1988, it had issued notices on 31.08.1988, 12.09.1988 and 25.10.1988, directing the workman to resume duty, but he had not joined inspite of the receipt of the notices. The effect of these notices themselves, in my view, come to nothing,for, if the contention of the management was that the termination was to be operative after three months’ notice from 09.08.1988, direction for joining the duty could not have been for any purpose except that the workman was bound to work during the period till he was actually terminated on 09.11.1988. 3. There was unanimity on one aspect at least: while the workman contended that he was prevented from joining duty from Civil Writ Petition No.11909 of 2000 - 3 - 25.08.1988, the management contended that they did not prevent but the workman himself absented from 25.08.1988. The starting point for the dispute for some form of snapping of ties could be seen from the contentions between the parties to have taken place on 25.08.1988. The issue whether notices had been actually served to the workman, had not been considered by the Labour Court, but in my view, it is wholly irrelevant for what is required to be seen is whether the terminated effected on 25.08.1988 was justified or not. The Labour Court itself did not find any justification but it directed itself to a finding that the reference could not be valid in view of the fact that the notice dated 09.08.1988 was admitted to have been received by the workman on 09.09.1988. According to Labour Court, if there was such a notice providing for termination three months later, it should only be taken that the termination was effective from 09.11.1988 and there being no reference for the same, the reference regarding an adjudication of an alleged termination dated 25.08.1988, was invalid. 4. While it is a trite law that a Labour Court cannot go behind the terms of reference, in this case, the Court ought not to have looked beyond what the parties were contending. The workman had stated that he had been stopped from service from 25.08.1988 and such cessation of work was an admitted fact except that the management was disowning the responsibility for the workman not coming from 25.08.1988. The workman has been fighting assiduously that he had not been permitted to attend and it is artificial to believe that the workman absented himself without any reason. If we examine the issue that the workman was Civil Writ Petition No.11909 of 2000 - 4 - sought to be jettisoned from service and it was not too keen to retain him and had purported to have issued notices earlier, the evidence that the workman had given that he had not been permitted to attend, must obtain a credible value. I accept the contention of the workman that he had not been permitted to resume his duty from 25.08.1988. The reference, in such a context, seeking for an adjudication whether the termination was valid or not was justified and there was no scope for a doubt that the reference itself was bad. 5. If an adjudication is to be made whether such a termination on 25.08.1988 was legally justified, it cannot be sustained on the grounds made out by the management. If there was an abandonment from 25.08.1988, there must be something on record to show that the management had struck off his rolls if there were any Standing Orders that permitted them to do so or they ought to have held an enquiry taking the absence as a ground for termination of service. It is not as if the workman was claiming the right to re-entry into the office after several years. His complaint that he was not permitted to join came immediately after 25.08.1988 that was on 23.12.1988. This period cannot be taken to be grossly belated to suspect the bona fide contention of the workman. 6. The issue whether there could have been a valid termination by a provision in the terms of employment that a workman could be terminated after providing for three months’ notice, was not itself considered by the Labour Court. If there was any justification for termination and even if the workman had conceded for a termination after being provided with three months’ notice, it still cannot be taken Civil Writ Petition No.11909 of 2000 - 5 - that the party could contract out of statute. If a statute gives to him a particular right which in this case is available through Section 25-F of the Industrial Disputes Act, and if there was a justification for termination, it still has to conform to the statutory mandate of Section 25-F. The management cannot, therefore, successfully resist an action of the workman complaining on illegal termination by stating that a contract of employment provided for termination in a manner contrary to the provisions of Section 25-F. The termination which ultimately took effect, therefore, I hold to be bad in law. 7. The other ground on which the Labour Court rejected the reference was, the workman had raised a dispute and obtained a reference, but did not prosecute the same and withdrew the reference. This fact was not concealed and stated even in the claim statement. The learned counsel for the workman would urge that so long as there was no adjudication on merit at the first time, the second reference will not be in any way barred. He would also contend that the provisions of the Civil Procedure Code themselves will not be attracted in labour jurisprudence and unless there was a specific bar mentioned under the Industrial Disputes Act, a fresh reference cannot be taken to be barred. Though it may not be possible to state as a general proposition that the principles of abandonment as contained under Order 23 Rule 1 CPC could never be attracted, I still would not apply the same to the present case for, there is a reference to the same even in the petition that the case had been withdrawn for a technical error. Though it is not brought out on record the particular mode of disposal by the Labour Court at the previous Civil Writ Petition No.11909 of 2000 - 6 - occasion when the workman had withdrawn the same, it is of no serious consequences having regard to the fact that withdrawal itself is not in dispute and that there was no adjudication on merits is also not disputed at all. A fresh reference seeking for an adjudication whether the termination was bad, cannot be taken to be barred in law. 8. The effect of a dismissal for default or a rejection of the first reference without an adjudication came in slightly in a different way in decision rendered by the Hon’ble Supreme Court in Virendra Bhandari Rajasthan State Road Transport Corporation and others-JT 2002(5) SC 21, where the reference had been made on a dispute that the termination was invalid and it was dismissed for non-appearance of the workman. A restoration application was also dismissed as being belated. Yet another reference was made by the Government on the same question. The Tribunal proceeded to make an award and the High Court held the second reference to be incompetent. However, the Hon’ble Supreme Court set aside the directions of the High Court and held since there was no adjudication of the dispute by the Tribunal when it passed the earlier orders and it could not be said that there existed no industrial dispute. If the Government felt that an industrial dispute still existed, the second reference made by it was competent and hence, the Tribunal in that case was justified in adjudicating the matter finally and making an award. This decision spells out a proposition that so long as the earlier adjudication was not disposed of on merits and so long as the dispute persisted and the Government found it necessary to make a reference, such a reference cannot be said to be bad. Civil Writ Petition No.11909 of 2000 - 7 - 9. Although not of a similar situation but an issue akin to it was dealt with in Jorki Andewali Co-op. Agriculture Service Society Limited Versus Presiding Officer, Labour Court, Bhatinda, 1994(4) RSJ 570, where this Court held that when a civil suit was filed by a workman and when the same was dismissed as withdrawn with permission to file a fresh suit on the same cause of action, there involved no determination on the rights of the workman on merits of the case and a fresh reference would not be barred. In the above case, the earlier litigation was one of a civil suit and in this case, the earlier proceeding between the same parties was a reference before the Labour Court itself. In that case, there was a reference to the fact that the petitioner had sought for permission to file a fresh suit on the same cause of action. It is not seen from the judgment whether the Civil Court had indeed granted such permission. Even without such particulars, this Court had held that since no determination of rights had taken place on the merits, a fresh reference was not barred. In this case also, it is not possible to secure any definite information as to whether any permission had been granted. The only thing that is certain and which is not disputed by either party was that the previous reference was withdrawn without an adjudication on merits. That, in my view, is sufficient for holding that the mere withdrawal without obtaining an adjudication cannot bar a fresh reference. 10. The award of the Labour Court rejecting the reference is, therefore, set aside. In the course of the evidence, it transpired that the workman was born on 30.06.1940. The workman had given evidence Civil Writ Petition No.11909 of 2000 - 8 - before the Labour Court that he did not seek for any employment after the termination from service. In view of definite evidence which is available with reference to the age, which was not known to have been contradicted for any evidence, I take it that he would have been superannuated on 30.06.1998. The workman has subsequently died and his heirs shall be entitled to 50% back wages, besides terminal benefits, as would have accrued to him if the termination was invalid. The amounts shall be paid within a period of three months, failing which the amount as found due to the workman shall carry interest 9% per annum. 11. The award of the Labour Court is set aside and the writ petition is allowed on the above terms. There shall, however, be no directions as to costs. (K.KANNAN) JUDGE 28.08.2009 sanjeev