CWP No. 7568 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No. 7568 of 2008 Date of Decision : 15.02.2010 Dev Chand son of Sh. Sardar Singh .... Petitioner Vs. Presiding Officer, Industrial Tribunal-cum-Labour Court-II, Gurgaon and others .... Respondents CORAM : HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH * * * Present : Mr. P.K.Mutneja, Advocate for the petitioner. Mr. D.S.Nalwa, Addl. A.G. Haryana, for respondents No. 2 to 5. * * * AUGUSTINE GEORGE MASIH, J. Through this writ petition, the petitioner-workman has challenged the Award dated 12.11.2008 (Annexure P-10) passed by the Industrial Tribunal-cum-Labour Court-II, Gurgaon, vide which the reference has been answered against him holding therein that the workman is not entitled to any relief. CWP No. 7568 of 2008 2 As per the claim statement of the petitioner, he was appointed as a Chowkidar in September, 1993 at Nangal Mala Beat (Nanwan Area) in the Aravali Project of Department of Forest, Government of Haryana. Initially, he was paid Rs. 40/- per day and subsequently, from July, 1995, it was enhanced to Rs. 45/- per day and thereafter Rs. 73/- per day. No appointment letter was issued to the petitioner. The petitioner worked as such till September, 1995. His attendance was marked in the Muster Rolls maintained by the respondents. Although the petitioner signed the Muster Rolls but no salary slip was ever provided to the workman. The wages were regularly paid to the petitioner till July, 1995 but thereafter in August and September, 1995, he was not paid any wages. On a demand being made by the workman for disbursement of his salary for the months of August and September, 1995, the Forest Guard informed him that his services were not required w.e.f. 01.10.1995. The effect of the termination of the services of the petitioner was that newly planted trees in the Aravali Hills, which were looked after by the petitioner, were either uprooted or illegally cut by the miscreants. The Panchayat Members and the Village Forest Protection Committee sent a representation to the higher authorities and the petitioner was allowed to rejoin duty on 01.11.1995 as Chowkidar and regularly continued as such up to July, 1996. However, no wages were paid to the petitioner for this period also and again on a demand being made by the petitioner-workman, his services were discontinued instead of making him payment of wages. This time again at the time of termination of the services, neither notice of termination nor retrenchment compensation was given to the petitioner. CWP No. 7568 of 2008 3 The petitioner approached the Principal, Chief Conservator, Haryana Forest Department, Chandigarh-respondent No. 2, who, after looking into his educational qualifications, directed the petitioner to perform the duties of Parcharak from 01.04.1997 and his wages were fixed as Rs. 100/- per day. The petitioner joined his duties as Parcharak on 01.04.1997. He continued as such till September, 1997. Here again, no wages were paid to him and now again, when request was made by him for release of the wages, the services of the petitioner were terminated w.e.f. 30.09.1997. No notice was given nor retrenchment compensation paid to him. The petitioner then submitted his demand notice to the respondents claiming therein that termination of his service was in violation of the provisions of the Industrial Disputes Act and further that the respondents were liable to be punished as per Sections 25-T and 25-U of the Industrial Disputes Act (hereinafter referred to as 'the Act') as there was unfair labour practice as the petitioner-workman was repeatedly given breaks in continuous service and was being harassed for wages leading to victimization of the petitioner. He demanded reinstatement in service with continuity thereof along with back wages. He further demanded that the amount of wages for the period August, 1995 to September, 1995 and November, 1995 to July, 1996 be paid to him with 12% interest per annum. As the conciliation proceedings failed, the matter was referred by the Governor of Haryana for adjudication to the Labour Court vide reference order dated 22.08.2000. Various opportunities were granted to the respondents to file reply to the statement of claim submitted by the CWP No. 7568 of 2008 4 petitioner-workman but they failed to file any reply leading to the striking of the defence of the respondent-Department vide order dated 26.03.2004. The petitioner-workman appeared as PW-1 and submitted his evidence and also filed an affidavit Ex. W-1 and the documents Ex. W-2 to Ex. W-34 as documentary evidence on 27.11.2006. After recording his evidence-in- chief, he did not submit himself for cross-examination in order to test the veracity of his statement and documents. On consideration of the evidence led by the petitioner-workman, the Labour Court came to the conclusion that the appointment of the petitioner was not in accordance with the statutory Rules governing the service and further that the Articles 14 and 16 of the Constitution of India were not complied with when his appointment was made. It thus came to a conclusion that the petitioner was not entitled to reinstatement in service. Relying on the various judgments passed by the Hon'ble Supreme Court including Secretary, State of Karnataka and others vs. Uma Devi and others, 2006 (4) SCC 1, it held that the petitioner was not entitled to reinstatement in service and, therefore, rejected the claim of the petitioner and answered the reference against the petitioner-workman leading to the filing of the present writ petition challenging the said Award. Counsel for the petitioner has submitted that the petitioner is a victim of unfair labour practice which is being used by the respondents- Management to disentitle its workman to the benefit and protection of the Act. Supporting this contention, he places reliance on the fact that the petitioner was initially appointed as a Chowkidar on 01.09.1993 and he CWP No. 7568 of 2008 5 continued as such till July, 1995. He was regularly paid the wages on monthly basis. In the months of August and September, 1995, when he was not paid the wages on a request being made by him, his services were discontinued. On a representation submitted by the Panchayat Members and the Village Forest Protection Committee and villagers, the petitioner was again reinstated in service w.e.f. 01.11.1995 as Chowkidar. He continued to work up to July, 1996 but when again he was not being paid the salary and he made a demand thereof, his services were again terminated w.e.f. August, 1996. He contends that deliberately breaks were being given in his service and the petitioner was being deprived of his wages for the period he had worked with the respondents which amounted to unfair labour practice and victimization at the hands of the respondents and, therefore, appropriate action against the respondents deserves to be taken and the benefit should be granted to the petitioner. He further contends that the relief of reinstatement in service was required to be granted to the petitioner on the ground that the Labour Court has misdirected itself in coming to a conclusion that the initial appointment of the petitioner-workman was not in consonance with the statutory Rules governing the service. He contends that the defence of the respondents-Management was struck off. There was no written statement on the records of the Labour Court and the only pleading was the claim statement of the petitioner-workman and his evidence, which he has led before the Labour Court. The Labour Court has misguided itself while proceeding to hold that the appointment of the petitioner was not in consonance with the statutory Rules governing the CWP No. 7568 of 2008 6 service. There being no pleading on behalf of the respondents or any evidence on their behalf nor was it a reference to the Labour Court, the findings so recorded cannot be sustained. In support of this contention, he relies upon the judgment of the Hon'ble Supreme Court in the case of Harjinder Singh vs. Punjab State Warehousing Corporation, JT 2010 (1) SC 598, wherein the Hon'ble Supreme Court has held that if the claim of the workman for reinstatement was not resisted on the ground that his initial appointment was illegal or unconstitutional and neither was any evidence produced before the Labour Court in this regard, the Labour Court could not have gone into the same and returned such a finding. Another submission, which has been put forth by the counsel for the petitioner, is that although there are no pleadings to the effect that the initial appointment of the petitioner was not in accordance with law but the Labour Court has misdirected itself and has gone against the well-settled and established principles of law that whoever raises a contention has to initially plead and then prove such contention but if there is no pleadings, there is no question of proving something, which is not pleaded. In support of this contention he relies upon the judgment of the Hon'ble Suprem Court in the case of Shankar Chakravarti vs. Britannia Biscuit Co. Ltd. and another, (1979) 3 Supreme Court Cases 371. In any case, he submits that the petitioner is entitled to the wages for the period he had claimed before the Labour Court which also has not been granted to him as there is nothing on the record to suggest that the petitioner had not worked for the period he has claimed to have worked with the respondents. CWP No. 7568 of 2008 7 On the other hand, counsel for the respondents submits that the findings recorded by the Labour Court cannot be faulted with. It was not the case of the petitioner-workman that his initial appointment was as per the statutory Rules governing the service. The principles, therefore, as laid down by the Hon'ble Supreme Court in its various judgments which have been referred to by the Labour Court in its Award, are fully applicable to the present case and the findings and the observations made by the Labour Court are fully justified which do not call for any interference by this Court. He disputes the claim of wages made by the petitioner in the present writ petition on the basis of the reply filed by the respondents to the writ petition, wherein it has been stated that the petitioner had not worked for the period, for which he is claiming wages. I have heard the counsel for the parties and have gone through the records of the case. The proposition that if there is no pleading or raising of a contention, there is no question of substantiating such non-existing contention by evidence, the assertion, which is not pleaded, even if there is evidence to support it, cannot be examined because the other side has no notice of it and if entertained, it would tantamount to giving advantage to one of the parties, cannot be disputed. The rules of fair play demand that a party seeking to establish a contention, which, if proved, would be sufficient to deny relief to the opposite side, is required to be specifically pleaded and then proved also cannot be disputed with as, if there is no pleading, there is no question of proving something, which is not pleaded CWP No. 7568 of 2008 8 provided both the parties are aware of that position and despite the absence of pleadings both the parties have led evidence on that point and had contested that. Keeping this principle in mind, the contention, as raised by the counsel for the petitioner that nothing has been pleaded or brought on record showing or proving that the appointment of the petitioner was not in consonance with the statutory Rules or in accordance with law on behalf of the respondents, the findings given by the Labour Court to that effect cannot be sustained, is fully justified. The principles, as laid down by the Hon'ble Supreme Court in the case of Harjinder Singh's case (supra), when applied, would lead to the conclusion that in the present case, the defence of the respondents was struck off due to their non-filing of the written statement to the claim statement made by the workman before the Labour Court and that order had attained finality as the same was not challenged by the respondents. In the absence of any pleadings or evidence, the findings, as recorded by the Labour Court with regard to the appointment of the petitioner-workman being not in consonance with law, therefore, denying him the claim of reinstatement, cannot be sustained and the findings, so recorded, by the Labour Court deserve to be set aside. Now the question arises whether there was any victimization or unfair labour practice on the part of the respondents. It is an admitted position that the petitioner was working under a project and was working on daily wage basis. Initially as per his own claim statement, the petitioner was appointed as a Chowkidar on 01.09.1993. He continued as such till CWP No. 7568 of 2008 9 September, 1995 when his services were terminated in October, 1995. He was put back in service from November, 1995 on a representation made by the Gram Panchayat and the Village Forest Protection Committee. He continued as such till July, 1996 when his services were terminated. This is the first span of his work with the respondents. He was thereafter appointed as a Parcharak w.e.f. 01.04.1997 vide order dated 21.02.1997 (Annexure P- 3) issued by the Divisional Forest Officer, Aravali Project, Charkhi Dadri- respondent No. 3. It would not be out of way to mention here that it was a totally different appointment wherein the petitioner was assigned to do the work of promotion regarding Aravali Project and Environment in the villages of Nawan, Dhigroti, Nagalmala, Madhogarh, Mandhola etc. He was to be paid Rs. 100/- per day as wages. This was the second assignment granted to the petitioner which had no connection with his earlier appointment as Chowkidar where the work and responsibility was totally different and even the wages were different because as per the petitioner himself, initially the wages given to him were Rs. 40/- per day, which were subsequently enhanced to Rs. 45/- per day from July, 1995 and later increased to Rs. 73/- per day. This would go beyond doubt to show that it was a totally new assignment given to the petitioner, which was duly accepted by the petitioner and the reason for that is obvious that the petitioner was a Graduate and initially was working as a Chowkidar at lower wages and was now given a higher responsibility with higher wages. The petitioner worked from 01.04.1997 to 30.09.1997. This is as per the claim statement submitted by the petitioner before the Labour Court as also his oral evidence and affidavit submitted in the Labour Court. CWP No. 7568 of 2008 10 Thus, for coming to a conclusion as to whether the petitioner would be entitled to the benefit of Section 25-F of the Act or not, the service rendered by the petitioner as Parcharak will have to be taken into consideration. Even if the assertion as made by the counsel for the petitioner, is taken to be correct that he had worked from 01.04.1997 till 30.09.1997, the total period comes to six months, which is well short of the required period of 240 days under Section 25-B of the Act to grant him protection under Section 25-F of the Act. The result thereof is that the termination of the service of the workman cannot be said to be in violation of the provisions of the Act entitling him the benefit of reinstatement in service. The earlier period of service rendered by the petitioner cannot be taken into consideration as it was as a Chowkidar and not as a Parcharak. Even as a Chowkidar, as per his own statement, his services were terminated in August, 1996, so the workman has not completed 240 days in service in 12 preceding months from the date of his termination. In view of the above, it cannot be said that there was any victimization or use of unfair labour practice by the Management. As regards the claim of the petitioner that he is entitled to the wages, which have not been paid to him, the said fact has not been controverted by the Management before the Labour Court as no written statement was filed, because of which their defence was struck off. It was the claim of the petitioner that he was not paid the wages for August and September, 1995 and November, 1995 to July, 1996 @ Rs. 45/- per day as Chowkidar and March, 1997 to September, 1997 @ Rs. 100/- per day as CWP No. 7568 of 2008 11 Parcharak. Since the evidence led by the petitioner proves that the petitioner was not paid the amount of wages for the period mentioned herein above, which fact could not be disputed by the respondents before the Labour Court, the said claim deserves to be allowed. The petitioner is, thus, held entitled to the wages for August and September, 1995 and November, 1995 to July, 1996 @ Rs. 45/- per day as Chowkidar and March, 1997 to September, 1997 @ Rs. 100/- per day as Parcharak. The petition stands disposed of accordingly. February 15, 2010 (AUGUSTINE GEORGE MASIH ) pj JUDGE