IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.M. No. 22885 of 2008 in/and C.W.P. No. 7601 of 2001. Date of Decision : May 20, 2010. Vidhya Mandir Senior Secondary School, Sector 15 A, Faridabad through its Secretary Shri R.K. Choudhary ...... Petitioner . Versus. Presiding Officer, Industrial Tribunal-cum-Labour Court-I, Faridabad, and another ..... Respondents . CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present:- Mr. P.K. Mutneja, Advocate, for the petitioner. Mr. J.S. Mannipur, Advocate, for respondent No. 2. AUGUSTINE GEORGE MASIH, J.. C.W.P. No. 7061 of 2001. The prayer in the present writ petition is for quashing of the Order dated 25.05.2000 (Annexure-P-11), vide which the application moved by the petitioner/Management (hereinafter referred to as “the Management”) for setting aside the Order dated 11.02.2000, vide which the evidence of the Management was closed by the Court as also the Award dated 31.01.2001 (Annexure-P-13), passed by the Industrial Tribunal-cum-Labour Court, Faridabad, vide which the reference had been answered in favour of the respondent No. 2/Workman (hereinafter referred to as “the Workman”), holding him entitled to reinstatement with continuity of service and all consequential service benefits and back wages amounting to Rs. 1,09,066/- as back wages @ Rs. 371/- per month. C.W.P. No. 7601 of 2001 and C.M. 22885 of 2008. -2- Counsel for the Management submits that Vidhya Mandir School, Sector-15-A, Faridabad, has been registered as a Society registered under the Societies Registration Act and is engaged in imparting quality education. The said Society is running two schools on one plot, situated in Sector-15-A, Faridabad. One school is a Hindi medium school, named as Vidhya Mandir Senior Secondary School, Sector-15-A, Faridabad, where classes from Nursery to 12th are running. The school is affiliated to the Board of Secondary Education, Haryana, Chandigarh. Another school by the name of Vidhya Mandir School, which is affiliated to the Central Board of Secondary Education, Delhi, which is an English medium school, which is also being run by the petitioner/Management. Both the institutions have different and distinguished set of employees and for all intents and purposes have no co- relation with each other except the fact that they are founded by one Society and the Management Committee is same. Facts in brevity are that the Workman was employed as a Lab Assistant (Physics) with effect from 16.02.1996 on temporary basis with Vidhya Mandir Senior Secondary School, Sector-15-A, Faridabad (petitioner/Management) and he worked as such till 31.03.1996. Thereafter, the Workman was appointed on probation for a period of one year with Vidhya Mandir School, with effect from 01.04.1996. The said Vidhya Mandir School did not like the work and conduct of the Workman and consequently relieved him on completion of his probation period, vide letter dated 29.03.1997 (Annexure-P-6). The Workman realising the gravity of situation that he had been relieved on the expiry of its probation by Vidhya Mandir School, sent a demand notice to Vidhya Mandir Senior Secondary School (petitioner/Management), wherein he alleged that he had worked with the petitioner/Management from 16.02.1996 to 31.03.1997 and as such had C.W.P. No. 7601 of 2001 and C.M. 22885 of 2008. -3- completed more than 240 days. In the said demand notice, the Workman did not disclose that he had worked with two different institutions during this period nor did he disclose that he was relieved by Vidhya Mandir School on completion of his probation period, when the conciliation proceedings failed, the dispute was referred to the Labour Court. Before the Labour Court, the Workman submitted his claim statement to which the petitioner/Management was impleaded as the only respondent and the petitioner/Management filed its response before the Labour Court. The petitioner/Management pleaded therein that although the Society and the Management was same, but Vidhya Mandir Senior Secondary School (respondent before the Labour Court) was affiliated to the Board of Secondary Education, Haryana, Chandigarh with Hindi medium and with independent staff and students, whereas the Vidhya Mandir School is a different institution, which is although situated in the same plot, but affiliated with Central Board of Secondary Education, Delhi, with English medium apart from the other factual pleadings as has been asserted by counsel for the petitioner/Management. The issues were framed, wherein apart from the dispute referred to was 'whether the termination of services of Harinder Singh Bhatti (Workman) is justified and in order ? If not, alongwith reinstatement to what amount of back wages he is entitled to ? The two other issues were 'whether the reference was bad in law ? and whether the Management is guilty of unfair labour practice ?' The Labour Court adopted the wrong procedure by asking the Management to lead its evidence first and fixed the date as 23.09.1999. Various opportunities were given to the petitioner/Management to produce its evidence and thereafter, order dated 11.02.2000 was passed by the Labour Court, closing the evidence of the Management by court order. The Court, thereafter, fixed the case for evidence of the Workman on C.W.P. No. 7601 of 2001 and C.M. 22885 of 2008. -4- 21.04.2000. The petitioner moved an application dated 21.04.2000 (Annexure-P-10), alongwith an affidavit for setting aside the of order dated 11.02.2000. In the application, it was asserted by the petitioner/Management that Shri Tarkeshwar Yadav, who was dealing with the legal cases of the school, did not come to school because of some unavoidable domestic problem on the date when the case was fixed, i.e., 11.02.2000, as all the files and other documents relating to the case were under lock and key of Tarkeshwar Yadav, the petitioner/Management could not produce any evidence in the Court on 11.02.2000. On this basis, it was pleaded that the absence of evidence on behalf of the petitioner/Management on 11.02.2000 was neither intentional nor malafide. The said application was rejected by the learned Labour Court, vide Order dated 25.05.2000 (Annexure-P-11) and the reasons given for not accepting the application of the petitioner/Management cannot be sustained especially when the explanation given by the petitioner/Management was reasonable and just. His further contention is that as a consequence of the closing down of the evidence of the petitioner/Management, the Award passed by the Labour Court, which virtually has the effect of an ex-parte Award as no evidence was led by the petitioner/Management, which is dated 31.01.2001 (Annexure-P-13), deserves to be set aside. Counsel for the petitioner/Management contends that the primary onus was on the Workman to prove that he had completed more than 240 days in service in the 12 preceding months from the date of his termination with the petitioner/Management. He contends that mere statement of the Workman before the Labour Court does not fulfil the requirement of law and the onus does not stand discharged on this alone. The documentary evidence was required to be submitted by the Workman to discharge his onus. He further C.W.P. No. 7601 of 2001 and C.M. 22885 of 2008. -5- contends that the Workman was required to prove that he had all through been un-employed after the termination and would be entitled to back wages. In support of this contention, he relies upon the judgment of Hon'ble the Supreme Court in the cases of Range Forest Officer Versus S.T. Hadimani 2002 (3) SCC 25, Manager Reserve Bank of India, Bangalore Versus S. Mani and others 2005 (5) SCC 100, and Ranip Nagar Palika Versus Babuji Gabhaji Thakore and others 2007 (13) SCC 343. He on this basis contends that the Award passed by the Labour Court, wherein the onus was put on the petitioner/Management to first lead the evidence and mere statement of the Workman before the Labour Court for discharging his onus as mandated under the law, cannot be accepted and thus the Award deserves to the set aside. He further contends that one opportunity be granted to the petitioner/Management to lead its evidence before the Labour Court by setting aside the Order dated 25.05.2000 (Annexure-P-11). On the other hand, counsel for respondent No. 2/Workman submits that various opportunities were granted to the petitioner/Management to produce its evidence. Accordingly, the petitioner/Management was given opportunities by the Labour Court, but costs were also imposed on two occasions and thereafter, last opportunity was granted to the petitioner/Management to produce its evidence, but when it failed to do so, the Labour Court had no option but to fix the case for evidence of the petitioner/Management. He contends that the Order dated 25.05.2000 (Annexure-P-11) passed by the Labour Court, is fully justified and does not call for any interference by this Court. His further contention is that the Workman had not only appeared before the Labour Court, but has produced on record the appointment letter (Ex.W-4), which is dated 16.02.1996, which clearly shows that the Workman was appointed as a Lab Assistant (Physics) C.W.P. No. 7601 of 2001 and C.M. 22885 of 2008. -6- by the petitioner/Management of the Society in the petitioner School and further it is not in dispute that the Workman had worked with the petitioner/Management with effect from 16.02.1996 till 31.03.1997, which goes beyond doubt to show that the Workman had completed more than 240 days with the petitioner/Management. No evidence had been produced by the petitioner/Management before the Labour Court, which would show that the Workman had worked from 01.04.1996 with Vidya Mandir School and not with the petitioner/Management. He contends that the onus of proving 240 days in service in the 12 preceding months from the date of his termination stood fully discharged as in the cross-examination of the Workman, no questions were put to him that the Workman had not worked with the petitioner/Management. His further contention is that he had specifically stated on 10.11.2000 in his statement before the Labour Court where he appeared as WW-1 and stated that since the termination of his services, he remained un-employed and tried his level best to get a job, but could not find one. His further contention is that the appointment letter (Ex.W-4) contains the signature of Shri N.K. Lohia and Ex.W-5 and Ex.W-6 are the authority letters issued by the petitioner/Management, which shows that the Workman was an employee of the petitioner/Management and not of Vidya Mandir School as has been alleged by the petitioner/Management. He on this basis contends that the contentions, which have been raised by counsel for the petitioner/Management cannot be accepted and the impugned Orders passed by the Labour Court being in accordance with law, deserve to be upheld. I have heard counsel for the parties and have gone through the records of the case. The first Order dated 25.05.2000 (Annexure-P-11), vide which the evidence of the petitioner/Management was closed by the Court, needs to C.W.P. No. 7601 of 2001 and C.M. 22885 of 2008. -7- be adjudicated upon. A perusal of the record shows that the petitioner/Management was required to produce its evidence on 22.03.1999. On the said date, the case was adjourned to 06.08.1999 subject to payment of Rs. 300/- as costs as no management witness was present. On 06.08.1999, the costs were paid, but again no management witness was present and the case was adjourned to 26.11.1999 subject to levy of costs of Rs. 400/-. On 26.11.1999, costs of Rs. 400/- was paid, but no management witness was again present and the case was adjourned to 03.12.1999 for settlement. On the said date, no settlement could be reached and the case was adjourned to 11.02.2000, granting last opportunity to the petitioner/Management to produce all evidence. On 11.02.2000, again no management witness was present nor was any explanation put forth despite last opportunity granted by the Labour Court, leading to the closing of the petitioner/Management evidence by order. The case was thus adjourned to 21.04.2000 for evidence of the Workman. On 21.04.2000, an application for setting aside the Order dated 11.02.2000 was filed by the petitioner/Management, wherein the grounds for non production of the evidence was stated that Shri Tarkeshwar Yadav, Time Office Personnel, who possessed the records and was dealing with the legal cases of it was absent because of some unavoidable domestic problem because of which the petitioner/Management could not produce its evidence. The domestic reason was neither spelt out nor explained in the application and, therefore, the Labour Court in the light of various opportunities granted and costs imposed on two occasions and thereafter, grant of last opportunity had proceed to pass an order of closing the evidence of the petitioner/management. The order passed by the Labour Court, therefore, cannot be faulted with. The records clearly indicates that the petitioner/Management was intentionally delaying the proceedings before the Labour Court. All efforts were made by C.W.P. No. 7601 of 2001 and C.M. 22885 of 2008. -8- the Labour Court to persuade and forced the Management to produce its evidence, but still the petitioner/Management failed to do so. The Order dated 11.02.2000 (Annexure-P-11) thus passed by the Labour Court was in accordance with law. The application for setting aside the Order dated 11.02.2000 passed by the Labour Court closing down the evidence of the petitioner/Management had also been rightly rejected as the petitioner/Management was unable to explain the unavoidable domestic problem of Tarkeshwar Yadav, in whose possession the records of school were having, because of which he could not come present in the School. It has not been explained as to what efforts were made by the petitioner/Management for getting the keys of the lock, where the files of the legal cases were kept. It is not the case of the petitioner/Management either that Tarkeshwar Yadav had gone out of station or was not locally available from where the keys could have been procured for production of the evidence. Thus, the order dated 25.05.2000 passed by the Industrial Tribunal-cum- Labour Court-I, Faridabad, cannot be faulted with and, therefore, is upheld. In the light of the above the position which emerges is, that there is no evidence on the record on the part of the petitioner/Management and, therefore, mere pleadings cannot be relied upon to give a finding in favour of the petitioner/Management, especially when there was oral and documentary evidence produced by the Workman in support of his contention. The stand of the petitioner/Management before the Labour Court was that although the Society, the Management and the place is same, but there are two separate institutions, which are running from the same plot. It is also not disputed that Shri N.K. Lohia was the Authority, which issued appointment letters to employees of both the institutions. The Workman had produced Ex.W-4 C.W.P. No. 7601 of 2001 and C.M. 22885 of 2008. -9- which is appointment letter dated 16.02.1996, issued by Vidhya Mandir Senior Secondary School, which contains the signature of Shri N.K. Lohia. Ex.W-5 and Ex.W-6 are the authority letters issued by the School in favour of the Workman. No suggestion was put to the Workman in his cross- examination that with effect from 01.04.19996, the Workman was employed with Vidhya Mandir School on probation. He had specifically stated before the Labour Court that he had worked with the petitioner/Management from 16.02.1996 as a Lab Assistant (Physics) till the date of his termination, i.e., 31.03.1997. Not only this, the Workman had stated in his statement before the Labour Court that since the termination of services of the Workman, he remained un-employed and despite making efforts to get a job could not find one. He had also stated that he had completed more than 240 days in service in the 12 preceding months from the date of his termination with the petitioner/Management. The oral as well as documentary evidence, which had been produced by the Workman before the Labour Court in the absence of any evidence to the contrary proves that the Workman had worked with the petitioner/Management and had completed more than 240 days in service in the 12 preceding months from the date of his termination. The Award dated 31.01.2001 (Annexure-P-13), passed by the Labour Court is based on the pleadings and evidence led by the parties before the Labour Court. The findings thus recorded by the Labour Court cannot be said to be not in accordance with law. The contention of counsel for the petitioner/Management that the onus was on the Workman to prove that he had completed more than 240 days in service in the 12 preceding months which onus the Workman failed to discharge by merely stating before the Labour Court that he had worked with the petitioner/Management cannot be accepted in the light of documentary evidence produced by the Workman C.W.P. No. 7601 of 2001 and C.M. 22885 of 2008. -10- before the Labour Court. The Workman had fully discharged his onus and thus the judgments relied upon by counsel for the petitioner/Management, i.e., Range Forest Officer (supra), Manager Reserve Bank of India (supra), and Ranip Nagar Palika (supra), are of no help to the petitioner/Management. As regards the contention of counsel for the petitioner/Management that the procedure adopted by the Labour Court, wherein the petitioner/Management was called upon to produce its evidence before the Workman and thus the same was against the settled principles of law, suffice it to say that the Labour Court in the given facts and circumstances of the case devised its own procedure as the intention and the purposes of law and especially the labour law is to find out the truth and the Court is not bound down by the intricacies of the procedures. In the case in hand, the petitioner/Management was called upon to produce its evidence and for the said purpose it was given ample opportunities as has been discussed above. Despite having availed of various opportunities when the Court was forced to close down the evidence of the petitioner/Management, it does not lie in the mouth of the petitioner/Management to now contend that the procedure adopted by the Labour Court was not in accordance with law. A party who has availed of various opportunities to produce its evidence cannot when it has failed to produce any evidence, be allowed to cover up its negligence and lethargy by finding violation with the procedure adopted by the Court. It should have at the initial stage of hearing before the Labour Court protested and objected to the said procedure and now having failed to produce its evidence cannot be allowed to take the benefit of its own fault. It would not be out of way to mention here that the Industrial Disputes Act, 1947, gives ample powers to the Labour Court to devise its own procedure in dealing with the dispute referred to it for adjudication. C.W.P. No. 7601 of 2001 and C.M. 22885 of 2008. -11- Finding no merit in the contentions raised by counsel for the petitioner/Management, the present writ petition deserves to be dismissed. Ordered accordingly. C.M. No. 22885 of 2008. In the light of the above Order, no orders are called for in the application, which has been preferred by the Workman for grant of wages as per Section 17-B of the Industrial Disputes Act, 1947. (AUGUSTINE GEORGE MASIH) JUDGE May 20, 2010. sjks. Whether refer to the Reporter. : _______________