CIVIL WRIT PETITION NO. 16121 of 1991 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CIVIL WRIT PETITION NO. 16121 of 1991 Date of decision: August 18, 2011 Cement Corporation of India Ltd. .....Petitioner VERSUS The Presiding Officer, Industrial Tribunal-cum- Labour Court, Hissar & others. ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. H.N. Mehtani, Advocate, for the petitioner. Mr. Sudhir Mittal, Advocate, for respondent No.2. **** RANJIT SINGH, J. Petitioner-Cement Corporation of India Ltd. (for short 'CCIL'), has filed this writ petition to impugn the order passed by the Industrial Tribunal-cum-Labour Court, Hissar on 14.6.1991. Sh. Ram Parkash, who was an employee of M/s Dalmia Dadri Cement Limited Company (hereinafter “DDCL”), had sought reference under Section 10 of the Industrial Disputes Act complaining that his services were illegally terminated by DDCL. The competent Government after considering the issue made following reference for adjudication before the Industrial Tribunal:- “Whether termination of service of Ram Parkash is justified and in order. If not, to what relief is he entitled?” CIVIL WRIT PETITION NO. 16121 of 1991 -2- The Industrial Tribunal, on the basis of material and evidence led, had passed the impugned award in favour of the respondent-workman allowing the wages payable to him as if he had served during the period from 17.2.1982 to 1.10.1985. The amount so calculated was made payable within a period of 4 months from the date of award through an account payee bank draft in favour of the respondent-workman. The management was also directed to pay an interest @ 12% per annum from 1.10.1995 onwards, if it did not deposit the bank draft in the Court along with the statement of account on or before 15.10.1991. The said award is challenged by the petitioner-CCIL, which had subsequently taken over the DDCL, as per the take over order passed by Government of India. The writ petition was admitted and the operation of the award was stayed. The facts in brief are that the respondent-workman joined the DDCL factory on 27.6.1947. As per the case pleaded, DDCL had closed down and this closure was declared illegal on 18.3.1980. The respondent-workman, therefore, had pleaded that termination of his services on account of closure was also illegal. Government of India, however, had subsequently nationalized the DDCL cement factory on 23.6.1981 and the management of the factory was handed over to the petitioner-CCIL. Pleading that CCIL is the successor management of the earlier management known as DDCL, the respondent-workman had pleaded that the new management had started recruitment of workers from amongst those whose services were terminated by the earlier management of the DDCL. The respondent-workman pleaded that he was senior most Loco Driver CIVIL WRIT PETITION NO. 16121 of 1991 -3- with the DDCL and, thus, required to be appointed afresh by the CCIL. Date of birth of the respondent-workman as per the record was 1.10.1927. This date of birth was not considered by the new management i.e. CCIL. The respondent-workman was declared over-age as per the report given by the Medical Board. The respondent-workman, accordingly, had challenged the finding of the Medical Board to be illegal, unjustified and discriminatory. He, accordingly, would plead for his reinstatement/appointment. In response to the statement of claim filed by the respondent-workman, the petitioner-Company had filed reply pleading that the Labour Court did not have the jurisdiction to decide the matter as there being no relationship of employer and employee between the CCIL and the respondent-workman Ram Parkash. Plea is that the respondent-workman was never employed by the CCIL. The petitioner had pleaded that the reference was misconceived as CCIL was not successor-in-interest of the management of DDCL. It was further pointed out that DDCL closed the establishment and factory on 18.3.19880 and had terminated the services of all the employees except 95 employees listed therein whose services were retained by its management. After the closure of the DDCL, winding up of the said company (CCIL) was in process, when the President of India promulgated the ordinance titled Dalmia Dadri Cement Ltd. (A Question & Transfer of Undertaking) Ordinance, 1981. Consequent upon the notification dated 23.6.1981, the right title and interest of DDCL in relation to its undertaking vested in the Central Government and then in the CCIL. The application for winding up of DDCL was dismissed. On this basis, it was pleaded that DDCL is an CIVIL WRIT PETITION NO. 16121 of 1991 -4- existing company and in this view of the legal position, no liability can be fastened or enforced on to CCIL. Plea further was that the respondent-workman was not on the rolls of DDCL on the date of its closure. Still, the respondent-workman had filed an application for employment mentioning his date of birth as 1.10.1927. The matter regarding his date of birth was accordingly, referred to medical experts. The Board constituted by the CCIL declared the respondent-workman to be above 58 years as on 14.12.1981. In his affidavit, the respondent-workman has mentioned his date of birth as 19.7.1928. He was again examined by the medical experts and was found to be over-age. Thus, it was pleaded that the respondent- workman could not validly stake a claim for his employment as a right with CCIL. On the basis of pleadings as noted above, the Tribunal framed the following two issues:- “1. Whether the reference is bad in law? 2. As per reference.” The parties were allowed to lead oral as well as documentary evidence and after hearing the representative of the management as well as the respondent-workman, the impugned award was passed, which is now under challenge. While deciding the issue relating to reference being bad in law or not, the Tribunal has held that there was an agreement between the management of CCIL and the representatives of labour union. On the basis of this agreement, minutes of discussion were drawn and in the opening line, it was written that the items were discussed and agreed too. As per this, recruitment of workers out of CIVIL WRIT PETITION NO. 16121 of 1991 -5- the ex-employees, was to be done on the principle of seniority alone and was to apply to the recruitment already made and for future. There was also a Clause in the agreement making a provision for medical examination of the ex-employees for determining the disputed age of those who had reached the age of 50 years and above and also for their medical fitness for appointment. On behalf of the petitioner-Company, it was pleaded that this was neither an agreement nor binding on the parties. The Tribunal negated this submission and held that it cannot be said that this was not an agreement because it was not in the form of agreement. This finding cannot be faulted. Even otherwise, both the parties have acted upon this document and have performed their respective parts. They cannot now be permitted to wriggle out of the agreed terms. However, the finding by the Tribunal that non-employment of the respondent- workman would virtually amount to termination of service and terming that to be mala fide means cannot be readily accepted. The termination of the respondent-workman had already taken effect. The agreement related to re-employment of the workers. No doubt, the re-employment was to be made on the basis of seniority, but still it was to be a fresh one and could be denied in case there was any dispute in regard to age of a person, who was above the age of 50 years on a particular referred date. In this background, to term denial of re-employment or re-engagement to be a deemed termination, would amount to stretching the legal and the factual position to unlimited and illegal extent. The finding of the Labour Court that not offering any employment to the respondent-workman virtually was CIVIL WRIT PETITION NO. 16121 of 1991 -6- deemed termination, thus, is not a correct statement of law and cannot be upheld. The ultimate relief granted to the petitioner primarily was on the basis of the finding that the petitioner stood terminated. Even as per the claim, the petitioner has been allowed wages for a period of 3 years. The age of retirement being 58 years, it is thus, clear that the petitioner concededly was more than 50 years at the time of seeking re-employment. The action of the petitioner-management in disputing his age and sending him to medical examination was also in terms of the agreement that had been reached between the parties. The petitioner-management was not unjustified in sending the case of the respondent-workman for medical examination to determine his age. In fact, the respondent-workman had given contradicting evidence of his age. As per the documents with DDCL, his date of birth was recorded as 1.10.1927. In an affidavit filed by the respondent-workman before the petitioner-Company, he had given his date of birth as 19.7.1928. This and the other reasons would clearly show that action of the management in referring the case of the petitioner before Medical Board was justified. On that account, also the denial of re-employment to the respondent- workman cannot be held unjustified. The award passed by the Tribunal, thus, cannot be sustained. The writ petition is allowed. The award passed by the Industrial Tribunal is set aside. There shall, however, no order as to costs. August 18, 2011 (RANJIT SINGH) monika JUDGE