C.W.P.Nos.9148 & 10477 of 1993 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. C.W.P. No.9148 of 1993 The Director, Food and Supplies, Punjab & Ors. ..Petitioners Vs. Parkash Singh & Anr. ...Respondents 2. C.W.P. No.10477 of 1993 District Food and Supplies Controller & Anr. ..Petitioners Vs. Bhola Singh & Anr. ...Respondents Date of Decision:1.11.2011 CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Ms.Gurveen H.Singh, Addl. Advocate General, Punjab for the petitioners. Ms.Shikha Sharma, Advocate for respondent No.1-Parkash Singh. M ehinder S ingh S ullar , J. (Oral) As identical questions of law and facts are involved and collectively argued by the counsel for the parties, therefore, I propose to dispose of the instant writ petitions, by virtue of this common judgment, in order to avoid the repetition. However, the facts, which are essential to be noticed for the limited purpose of deciding the core controversy, involved in the writ petitions, have been extracted from (1) CWP No.9148 of 1993 titled as “The Director, Food and Supplies, Punjab & Ors. vs. Parkash Singh & Anr.” for ready reference in this context. 2. The epitome of the facts and evidence, culminating in the commencement, relevant for disposal of the present writ petitions and emanating from the record, is that the respondents-workmen were working as Chowkidars. Their services were stated to have been illegally terminated by the petitioner- C.W.P.Nos.9148 & 10477 of 1993 -2- Management of the District Food & Supplies Controller (for brevity “the petitioner-Management”). In the wake of an industrial dispute raised by the workmen, the appropriate Government referred the matter to the Industrial Tribunal-cum-Presiding Officer of the Labour Court (for short “the LC”) for adjudication, in view of the provisions of Section 10 of The Industrial Disputes Act, 1947 (hereinafter to be referred as “the Act”). The workmen submitted their respective claims (Annexure P2) before the LC in this respect. 3. The petitioner-management contested the claim of the workmen and filed its written statement (Annexure P3), inter-alia pleading certain preliminary objections of maintainability of the reference petition, cause of action and locus standi of the workmen. According to the petitioner-management that it engaged the three categories, namely, regular, temporary and daily wages, of Chowkidars depending upon the increase/decease of the volume of work (food grain stock). The workmen were claimed to have been engaged as daily wages Chowkidars. Their services were terminated being surplus staff. It was claimed that since the provisions of the Act were not applicable, so, the workmen are not entitled to any benefit. The petitioner-management has vaguely denied the remaining allegations contained in the claim petition and prayed for its dismissal. 4. From the pleadings of the parties, the LC framed the following issues for adjudication of the case:- i) Whether the references is bad-in-law as alleged? ii) Whether the order of termination of services of the workman is justified and in order? iii)Relief. 5. In order to substantiate their respective stands, the parties to the lis, produced on record their evidence. Taking into consideration the entire material on record, the LC decided issue Nos.1 and 2 against the management, accepted the claim and workmen were reinstated with continuity of service, but without back wages, by way of impugned award dated 27.2.1992 (Annexure P1). C.W.P.Nos.9148 & 10477 of 1993 -3- 6. Aggrieved by the decision of the LC, the petitioner-management preferred the present writ petitions, challenging the impugned awards (Annexure P1), invoking the provisions of Articles 226 and 227 of the Constitution of India, inter-alia pleading that since the workmen were engaged only as daily wages Chowkidars, their employment was not against any regular post and they were disengaged, being surplus staff, so, they are not entitled to any benefit in this connection. Instead of reproducing the entire pleadings and in order to avoid the repetition, suffice it to say, that the management has adopted the same line of pleadings as contained in its written statement (Annexure P3) before the LC. 7. The workmen contested the stand of the petitioner-management and filed their written statements, wherein it was pleaded that as their services were illegally terminated, therefore, the LC has rightly passed the valid and justified awards in this manner. The workmen have supported the awards of the LC. It will not be out of place to mention here that the workmen have stoutly denied all remaining allegations contained in the writ petitions and prayed for their dismissal. That is how I am seized of the matter. 8. Having heard the learned counsel for the parties, having gone through the record and relevant provisions of the Act with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the instant writ petitions in this behalf. 9. Ex facie, the argument of learned counsel for petitioner-management that the workmen were not appointed against any regular post and since they were engaged as daily wages Chowkidars, so, they were not entitled to reinstatement in service, is not only devoid of merit but misplaced as well. 10. As is evident from the record, that the petitioner-management has no- where pleaded in its written statement that the workmen did not complete 240 days, so as to enable them to claim benefit under the Act. Not only that, the management has produced the Food Inspector as its witness (MW1), who has C.W.P.Nos.9148 & 10477 of 1993 -4- categorically admitted in his cross-examination that the workmen have completed more than 240 days without any break. 11. Moreover, the petitioner-management did not produce the attendance register/muster roll or any other document or any order of disengagement of the workmen, by means of which, their services were terminated. That means, the management has withheld the best possible evidence in this context for the reasons best known and in that eventuality, a legal adverse inference is inevitable against it, which would corroborates the evidence of workmen that they have put in continuous service of more than 240 days as defined under Section 25B of the Act and their services were abruptly terminated by the management, without issuing any notice, valid inquiry or payment of retrenchment compensation. The LC, after taking into consideration the evidence of the workmen, coupled with admission of MW1, recorded a finding of fact that as their disengagement was illegal, therefore, they are entitled to be reinstated in service under the provisions of the Act. Hence, the termination of their services would legally amount to retrenchment and the provisions of the Act would be applicable. This matter is no more res integra and is well settled. 12. An identical question came to be decided by the Hon'ble Supreme Court in case Delhi Cloth and General Mills Co.Ltd. v. Shambhu Nath Mukherji and others AIR 1978 S.C. 8, wherein it was ruled that “striking off the name of the workman from the rolls by the management is termination of his service. Such termination of service is retrenchment within the meaning of S.2(oo) of the Act. The provisions of S.25F (a), the proviso apart, and (b) are mandatory and any order of retrenchment, in violation of these two peremptory conditions precedent, is invalid.” 13. The same view was reiterated by the Hon'ble Apex Court in cases H.D.Singh v. Reserve Bank of India and others AIR 1986 S.C. 132(1) and The Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. The C.W.P.Nos.9148 & 10477 of 1993 -5- Presiding Officer, Labour Court, Chandigarh and others 1990(2) RSJ 53 and this Court in case Punjab Agriculture University, Ludhiana and another v. Presiding Officer, Labour Court, Bathinda and another (2011-4) P.L.R. 58. 14. Again, the Hon'ble Supreme Court in case M/s Lakshmi Precision Screws Ltd. v. Ram Bahagat AIR 2002 S.C. 2914 has held that “the law must, therefore, be now taken to be well-settled that procedure prescribed for depriving a person of livelihood must meet the challenge of Article 14 and such law would be liable to be tested on the anvil of Article 14 and the procedure prescribed by a statute or statutory rule or rules or orders affecting the civil rights or result in civil consequences would have to answer the requirement of Article 14. So it must be right, just and fair and not arbitrary, fanciful or oppressive. Therefore, fair play in action requires that the procedure adopted must be just, fair and reasonable. The manner of exercise of the power and its impact on the rights of the person affected would be in conformity with the principles of natural justice. Article 21 clubs life with liberty, dignity of person with means of livelihood without which the glorious content of dignity of person would be reduced to animal existence.” 15. To me, the law laid down in the aforesaid judgments “mutatis mutandis” is applicable to the facts of the present case and is the complete answer to the problem in hand. 16. Now adverting to the other celebrated contentions of counsel for the petitioner-management that since the workmen were engaged as daily wages Chowkidars and were not appointed against the regular post, so, the provisions of section 25F of the Act were not applicable to them, lacks merit. 17. As is clear, the term “workman” has been defined in section 2(s) to mean any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, C.W.P.Nos.9148 & 10477 of 1993 -6- includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute. 18. A conjoint and meaningful reading of these provisions would reveal that even if a person is engaged on daily wages and has completed the continuous service as defined under section 25B, then, his services cannot be terminated without following the statutory provisions of section 25F of the Act, irrespective of the fact that he was not appointed against a regular post as alleged on behalf of the management. Therefore, the contrary arguments of learned counsel for the petitioner-management “stricto sensu” liable to be and are hereby repelled under the present set of circumstances. 19. Meaning thereby, the LC has rightly accepted the claim of workmen in this relevant connection, vide impugned awards (Annexure P1). Such awards containing valid reasons, cannot possibly be interfered with, while exercising the extraordinary writ jurisdiction of this Court, unless and until, the same are illegal and perverse. Since no such patent illegality or legal infirmity has been pointed out by the learned counsel for the petitioner-management, so, the impugned awards (Annexure P1) deserve to be and are hereby maintained in the obtaining circumstances of the case. 20. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 21. In the light of aforesaid reasons, as there is no merit, therefore, the instant writ petitions are hereby dismissed as such. (Mehinder Singh Sullar) 1.11.2011 Judge AS Whether to be referred to reporter?Yes/No