C.W.P.No.605 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.605 of 2008 Date of Decision:01.05.2008 Ramesh Kumar .....Petitioner versus Presiding Officer, Labour Court Ambala and another .....Respondents. CORAM: HON'BLE MR.JUSTICE ASHUTOSH MOHUNTA AND HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr.Pritam Saini, Advocate, for the petitioner. Mr.Sudershan Goel, Advocate with, Mr.Ramesh Goyat, Advocate, for respondent No.2. *** KANWALJIT SINGH AHLUWALIA, J. The present writ petition has been filed by Ramesh Kumar- petitioner assailing the impugned award dated 13.02.2007 (Annexure P-15) passed by the learned Labour Court, Ambala. The Government of Haryana while exercising powers under Clause (C) of sub-Section 1 of Section 10 of the Industrial Disputes Act, 1947 (here-in-after to be referred as the 'Act') made the following reference on 20.12.2005:- “Whether the termination of services of workman Ramesh Kumar is justified or not? If not so to what relief is he entitled?” Briefly stated that it is averred in the writ petition that the petitioner joined M/s Naraingarh Sugar Mill Limited-respondent No.2(here- C.W.P.No.605 of 2008 2 in-after to be referred as the respondent-Management) on 02.12.1996 as Seasonal Fireman. It is stated in the writ petition that this fact is evident from the affidavit of the Managing Director of the respondent-Management (Annexure P-1) dated 29.10.1998. It is submitted that Union of workmen had submitted a demand charter to the Management and when the negotiation upon the demands raised in the charter with the Management failed, workers Union resorted to Dharna in front of the factory gate w.e.f. 18.11.1999. The workers' Union also resorted to hunger strike. Due to the intervention of Administration, Labour Department, an agreement was arrived at between the workers' Union and the respondent-Management on 03.12.1999. The agreement/settlement has been attached with the writ petition as Annexure P-2. Clause (ii) of the agreement reads as under:- “As soon as the season of 1999-2000 would begin, the Management would take on duty all the workmen who were working in the previous season. The workers who raised slogans against the management during the strike and who abused the management, would beg pardon in writing from the management and then they would be taken on duty. The workers against whom the FIR is lodged, they would not be taken on duty and they would be allowed to join duties as per the atmosphere”. The grievance of the workmen is that the Management had not given effect to the settlement and they were not allowed to join the respondent-Management and their various attempts to join duty could not fructify as the Management kept putting off the implementation of the settlement on one pretext or the other. This necessitated M/s Naraingarh Sugar Mill Karamchari Union to prefer CWP No.492 of 2000 in this Court. Copy of the writ petition is attached as (Annexure P-3). State of Haryana, respondent-Management, the Joint Labour Commissioner and the Deputy Commissioner were arrayed as respondents in CWP No.7492 of 2000 (Annexure P-3) wherein prayer was made that a writ of mandamus be C.W.P.No.605 of 2008 3 issued directing the respondents to enforce the agreement dated 03.12.1999 and the workmen be allowed to join their duties. It was pleaded therein that workmen are virtually on the verge of starvation. The above-said writ petition was dismissed by this Court on April 05, 2001 holding as under:- “The question whether the said workmen did not join after the settlement in the year 1999 or when not allowed to join is again disputed question of fact to be decided. This also cannot be decided in this writ petition. The proper remedy, therefore, would be only under the Industrial Disputes Act and not by filing this writ petition”. In pursuance of order passed in the writ petition, workers Union submitted demand notice (Annexure P-5) on 05.06.2001. Government of Haryana on 20.02.2002 vide Annexure P-6 declined to make a reference to the learned Labour Court which led to another round of litigation at the instance of workers' Union and they preferred another writ petition bearing CWP No.11957 of 2002 in which they sought quashing of Government's refusal to make reference to the learned Labour Court. The above-said writ petition was dismissed as withdrawn on 29.01.2004 and the following order was passed:- “Present: Mr.A.K.Gupta, Adv. for the petitioner. Ms.Ritu Bahri, DAG, Haryana for respondents No.1 and 2. Mr.P.K.Mutneja, Adv. for respondent No.3. Learned counsel for the petitioner concedes that the settlement arrived at with the workmen on 3.12.1999, copy of which has been annexed as Annexure R-3/10 is still subsisting and if the petitioners have any right under the same, they can proceed under Section 29 of the Industrial Disputes Act, 1947 (for short the Act). In view of this statement, counsel for the petitioners prays that he be allowed to withdraw this petition with liberty to avail the remedy available to them C.W.P.No.605 of 2008 4 under Section 29 of the Act. Mr.Mutneja fairly states that the management will not raise the plea of limitation, if such an application is filed within one month from today. With the above observation, the writ petition is dismissed as withdrawn with liberty as prayed for”. Workers Union submitted a representation to the Labour Commissioner-cum-Secretary (Labour & Employment Department) Govt. of Haryana with Headquarters at Chandigarh, and in the representation, prayer was made that the Management be ordered to implement the settlement dated 03.12.1999 (Annexure P-2). Reply was filed by the respondent-Management to the representation(Annexure P-9) and it was stated that the prosecution may not be launched and their willingness to honour the settlement dated 03.12.1999 was also renewed. A detailed reply was also filed before the Deputy Labour Commissioner, Haryana, Chandigarh in response to show cause notice on 14.06.2004 by the respondent-Management. It was stated therein that the various notices were sent to the workmen to report for duty and these documents go a long way to prove and establish about bona fide implementation of settlement by the respondent-Management. However, State of Haryana made a reference as stated above on 20.12.2005. The petitioner submitted his claim statement in February 2006. It was stated in the claim statement that the settlement was not honoured and the same was binding upon the Management, who has resorted to gross unfair labour practice and had employed new hands and no notice or any sort of retrenchment compensation was paid. It was further stated that the workman individually as well as through the Union had approached the respondent- Management many times for re-instatement in service but nothing had materialised and the details of various writ petitions filed by the Union were also given. In the written statement filed to the claim petition, all these C.W.P.No.605 of 2008 5 facts were disputed. It was stated therein that the workmen by holding a Dharna and hunger strike created law and problem and the Management had also to file a suit for ad interim injunction in the Court of Additional Civil Judge(S.D.), Ambala. Replication was also filed by the workmen. Thereafter, in the reference submitted to the learned Labour Court, following issues were framed by the learned Labour Court:- “1. Whether the termination of services of the workman is liable to be set-aside being wrong, illegal, null and void etc. and the workman is entitled to be reinstated in service with full back wages and all the benefits including the continuity of service? OPP 2. Whether the workman has no locus-standi to file the present claim statement?OPM 3. Whether the claim statement is not maintainable in the present form?OPM. 4. Whether the workman has no cause of action to file the present claim statement?OPM 5. Whether the petitioner-workman has not approached this court with clean hands as he has mentioned false facts in his claim settlement? If so its effect?OPM 6. Relief”. Mr.Pritam Saini, Advocate, appearing for the petitioner- workman has stated that the learned Labour Court had misread the evidence and the findings arrived by the learned Labour Court are perverse. During the course of arguments, he placed certified copy of the cross-examination of the petitioner who was examined as WW-1, to state that intentionally the learned Labour Court has wrongly reproduced lines of cross-examination in para 16. The learned Labour Court has reproduced as under:- “Yeh theek hai ki Bhupinder and Kuldeep ne bataur sharmik pratinidhi 3.12.99 ke samjhote ke mutabik gathit kameti mein bhag liya tha. Mujhe ye bhi pata hai ki C.W.P.No.605 of 2008 6 Kameti ki meeting 4.12.99, 5.12.99 & 6.12.99 ko hui. Main kameti ke pass na gaya tha aur na hee maine kameti ko apna case likh kar diya tha”. Whereas in the certified copy, it reads as under:- “Yeh galat hai ki Bhupinder & Kuldeep ne bataur sharmik pratinidhi 3.12.99 ke samjhote ke mutabik gathit kameti mein bhag liya tha. Mujhe yeh na pata hai ki Kameti ki meeing 4/12, 5/12 & 6/12/99 ko hui. Mujhe jankari na hai meeting ke baad 40 aadmiyon ki list laga di ho. Main kabhi kameti ke pass na gaya tha aur na hee maine kameti ko apna case likh kar diya tha”. We have heard learned counsel for the parties. We have also perused the reply filed by the respondent-Management. We have also read the statement of WW-2-Didar Singh who was posted as Security Supervisor with the respondent-Management. We are of the firm view that the findings of the learned Labour Court cannot be sustained. It has gone in one way to dislodge the claim of the workman and has not appreciated the entire gamut. The learned Labour Court lost sight of the fact that the workmen through their Union have been agitating in the various forums which were available to them under the Law. They had filed the first writ petition in this Court (Annexure P-3) on 21.05.2000 when their efforts to bind the Management to honour the settlement (Annexure P-2) dated 03.12.1999 failed. The writ petition was filed after five months when the settlement dated 03.12.1999 was not honoured. Filing of the writ petitions suggest that the workers' Union had adopted the legal course at the earliest available opportunity. Writ petition was dismissed on April 05, 2001. They were relegated to raise their dispute under the Industrial Disputes Act. Immediately after obtaining the certified copy, they had served demand notice (Annexure P-5). The same remained pending with the Government and was rejected on 20.04.2002. Immediately thereafter, writ petition (Annexure P-7) was preferred. In the C.W.P.No.605 of 2008 7 writ petition, counsel for the Management stated that the Management will not raise the plea of limitation, if such an application is filed within one month from the date when the writ petition was dismissed as withdrawn i.e. on 29.01.2004. Within one month, workers Union had given the representation. Show cause notice issued to the respondent-Management and thereafter, the reference was made in pursuance of which impugned award (Annexure P-15) was passed. We fail to understand as to how the learned Labour Court came to the conclusion that the workmen deliberately, intentionally and willfully had not reported for duty. Such a finding cannot be sustained. The very fact that the workmen were agitating, filed writ petition and representation, served demand notice, on declining of the reference, another writ petition was instituted. Thus, in the most peaceful manner, approaching the available authorities, acting in accordance with law, conduct of workmen is sufficient to infer that the workmen were running from pillar to post to agitate their grievance that the Management is avoiding the implementation of the settlement dated 03.12.1999. The learned Labour Court has not taken the larger perspective. Therefore, award (Annexure P-15) is liable to be quashed as the same is against the law and facts of the case. However, since the learned Labour Court has not taken into account the whole scenario, filing of various writ petitions and orders passed therein while arriving at the conclusion, we are of the view that both the workmen and the Management are entitled to project their view and can be afforded an opportunity to produce entire evidence, i.e. filing of the writ petitions and orders passed therein so that the learned Labour Court is able to adjudicate in just and proper manner. For doing so, we quash award (Annexure P-15) and remit the matter back to the learned Labour Court to decide afresh. In the present case litigation is pending since year, 1999. We direct the learned Labour Court to decide the matter within six months from the receipt of C.W.P.No.605 of 2008 8 certified copy. With these observations, the present writ petition is disposed off. (KANWALJIT SINGH AHLUWALIA) JUDGE May 01, 2008 (ASHUTOSH MOHUNTA) seema JUDGE