CWP No.21670 of 2008 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH CWP No. 21670 of 2008 Date of decision August 18, 2009 Mahboob Khan, s/o Sh. Alijaan, r/o Village Maanipur, P.O. Lalhari, Tehsil Chhachhrauli, District Yamunanagar (Hy.). ....... Petitioner Versus Presiding Officer, Labour Court, Ambala and another. ........ Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:- Mr. J. S. Maanipur, Advocate for the petitioner. Mr. D. S. Nalwa, Additional Advocate General, Haryana for the respondents. **** 1. Whether reporters of local newspapers may be allowed to see the judgment ? No 2. To be referred to the reporters or not? No 3. Whether the judgment should be reported in the digest? No K. Kannan, J(oral). 1. The writ petition challenges the award of the Labour Court that rejected the reference sought at the instance of the workman that he had been illegally terminated. The Labour Court in proceedings to give its award found that the evidence of the workman itself did not show anything more than the fact that he had been a daily wager between the year 1999 to 2003 and that there were also witnesses WW-2 to WW-5 who supported to the fact that he had been working on various dates between the years above mentioned but did not give any evidence about the periods of engagement. The Management had been required to CWP No.21670 of 2008 2 produce through the Clerk the Rawana challans and witness Sh. Sureshpal came to say that he did not bring the documents as the same were not available. At the next hearing, the same witness stated that rawana challans were not available and they are destroyed after one year. The Management placed evidence to payment registers as evidence as MW-1/B of the amounts that had been paid to him or the actual days that he worked. The Labour Court dealt with the same and found on a proper reckoning through the amounts that had been actually paid for every year that in the year 1998 he had worked for 194 days, 114 days in the year 2000, in the year 2001, 97 days, in the year 2002 he had worked for 152 days and in the year 2003 for 141 days. The most important feature that was required to be proved was whether the workman, who complained of illegal termination had worked for 240 days prior to the date of termination but the evidence produced before Court did not support such a plea by the workman. The Labour Court considered all the relevant facts and the burden which was essentially on the workman to establish that he had worked for a continuous period of 240 days to entitle him to notice and compensation under Section 25-F were simply not available. It is not possible to fault such reasoning. 2. The other contention of the workman that was there were at least three juniors namely Sanjeev Kumar, Vakil Singh and Vikas who had been retained in service while the workman alone had been singled out for retrenchment. This specific contention made by the workman was denied in general terms in paragraph 5 of the written statement that the claim by the workman was wrong and hence denied. The Labour Court dealt with that issue from the stand point that except making a bald statements with reference to the juniors being retained, there was no iota of evidence to prove the alleged claim of the workman. It, therefore, decided to hold the issue against the workman. CWP No.21670 of 2008 3 3. Learned counsel appearing on behalf of the State would say that Section 25 (G) requires that the employer was ordinarily to retrench the person who was the last person to be employed in that category, and if an establishment had different categories of workman, if only a junior in that particular category which the workman belonged retained, the question of violation of Section 25 (G) would apply. He would also state that the expression “ordinarily retrenched” will mean a general principle and it is not mandatory. The contention on behalf of the State is also that the work which had been assigned to the workman had completed and therefore, he was not given employment. 4. In my view, no specific focus was made on how the conditions of other three persons who were said to have been retained. There is no plea either by the workman or the Management. The principles of strict pleading would not apply in labour jurisprudence and certain leeway has to be granted to accommodate the parties' claims and when the parties knew what the central issues were for decision. The claim by the workman for reinstatement was not merely on the basis that he had worked for more than 240 days in the year prior to his termination but also on the basis that junior persons had been retained, flouting the principle of 'last-come-first-go'. The award of the Labour Court is set aside, only as regards the claim of the workman that persons junior to him were retained and the matter is remitted to the Labour Court for a fresh consideration only as regards the said issue namely whether persons who were junior in the same category of the workman had been retained in service or not. The finding relating to the lack of proof of continuous service of 240 days is confirmed and there shall be no fresh evidence on that aspect. 5. The matter is remitted to the Labour Court for conciliation of the above issue and render a final adjudication on merits. 6. The parties shall appear before the Labour Court CWP No.21670 of 2008 4 on 17.9.2009. 7. The writ petition is disposed of in the above terms. (K. KANNAN) JUDGE August 18, 2009 archana