Civil Writ Petition No.19480 of 1998 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** Civil Writ Petition No.19480 of 1998 Date of Decision:16.12.2008 Hardeep Singh .....Petitioner Vs. The Presiding Officer, Labour Court, Jalandhar and another .....Respondents CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. K.L. Arora, Advocate for the petitioner. Mr. R.N. Sharma, Advocate for respondent No.2. **** JUDGMENT HARBANS LAL, J. This petition has been moved by Hardeep Singh under Articles 226/227 of the Constitution of India for quashing the impugned order dated 22.5.1998 Annexure P.23 and award dated 1.6.1998 Annexure P.24 and for directing the respondents to reinstate the petitioner with continuity of service and full back-wages as his services were terminated in violation of the provisions of Section 25-F, 25-G and 25-H of the Industrial Disputes Act, 1947 (for short, `the Act') and/or for remanding the case back to Labour Court below at Jalandhar for summoning the record as per application Annexure P.22 and for deciding the case afresh. The brief facts giving rise to this petition are that the petitioner came to the service of the respondent- Corporation on 1.11.1980 as Chowkidar. He continuously worked till 30.6.1984, when his services were Civil Writ Petition No.19480 of 1998 -2- terminated with effect from 1.7.1984 without making payment of retrenchment compensation, or notice pay. He sent the demand notice dated 9.10.1984 Annexure P.1 to the authorities for reinstating him with continuity of service and back-wages. The appropriate Government referred the dispute to the Labour Court, Jalandhar for adjudication. He filed the statement of claim before the Labour Court. The respondent- Management also filed its written statement Annexure P.4 pleading that the job against which the workman was engaged was completed and, therefore, there was no alternative work with the Corporation and he could not be allowed to continue in service. He was paid his wages upto 29.1.1984 and nothing was due. The respondent- Management filed another written statement Annexure P.5 pleading that the workman worked up to 29.1.1984 and after receiving his wages up to date, he left the job on his own accord. The petitioner had moved an application Annexure P.6 for impleading the management of PUNSUP, Chandigarh as a party to the case, which was declined by the Labour Court. After hearing the representatives of both the parties and examining the evidence on record, the Labour Court vide its award dated 28.8.1996 Annexure P.7 rejected the case of the petitioner. He filed Civil Writ Petition No.6420 of 1997 challenging Annexure P.7. The Division Bench of this Court, vide Annexure P.21 quashed Annexure P.7 and remanded back the matter to the Labour Court for fresh decision. The petitioner after remand, put in an application Annexure P.22 for summoning the record to prove Annexures P.8 to P.17 as well as attendance register for the period from 29.1.1984 to 30.6.1984, which was rejected by the learned Presiding Officer of the Labour Court, vide order dated 22.5.1998 Annexure Civil Writ Petition No.19480 of 1998 -3- P.23. Ultimately, the Labour Court declined the reference vide Annexure P.24. That Annexure P.23 and P.24 being illegal, unjust, arbitrary and in violation of the provisions of the Act deserve to be undone. There was no temptation with the petitioner to increase the period of service by five months from February 1984 to June 1984 as he had actually worked with the respondent- Management from 1.11.1980 to 30.6.1984 and his services were terminated from 1.7.1984. The petitioner- workman was a Chowkidar posted at the gate of the Godown of the Corporation from where the material used to go out only through the gate passes. Annexure P.8 was brought on the record of the Labour Court as Ex.W-1 and then as Ex.M-12. Sarvshri Jaswant Singh, Baldev Singh, Sohan Singh, Inder Kumar, Swaran Singh, Ram Bahadur, Amrik Singh, Maan Singh, Darshan Singh, Dalip Singh, Om Parkash and Anokh Singh, who were junior to the petitioner were kept in service at the same place where the petitioner was working, though his services were terminated. The services of all these juniors were subsequently terminated. They raised industrial dispute in the Labour Court at Jalandhar. Vide Annexure P.18, a common award, they were ordered to be reinstated with continuity of service and full back-wages. They are still in service and their services have been regularised. One of the order regularising the services of Anokh Singh is Annexure P.18/A. The Management had taken two different pleas in two written statements filed by the Labour Court. In Annexure P.4, it has been averred that the services of the petitioner were terminated since the work was over and in the other one i.e., Annexure P.5, it has been mentioned that he had left the service on 29.1.1984 on his own. The impugned order Annexure P.23 and the impugned award Annexure P.24 are illegal, being violative of the provisions Civil Writ Petition No.19480 of 1998 -4- of Section 25-F and 25-G of the Act. Lastly, it has been prayed that the petitioner may be reinstated with continuity of service and full back-wages as per the reasons embodied in this petition. In the written statement filed by the District Manager, Punjab State Civil Supplies Corporation Kapurthala- respondent No.2, it has been inter-alia pleaded that this petition is not maintainable as the answering respondent was not made party before the Labour Court, Jalandhar and the reference was made against Shri Joginder Singh, District Manager, PUNSUP, Kapurthala in his individual capacity and furthermore, this petition is bound to be dismissed on the ground of limitation. That since the Corporation has not terminated the services and that being so, the question of payment of retrenchment compensation does not arise. Regarding the allegation of retaining juniors, it is stated that the petitioner has no right to raise this plea for the first time before this Court as the same was not raised before the Labour Court. The petitioner on one hand says that the PUNSUP through Managing Director becomes a necessary party, but on the other hand, District Manager has been impleaded as the respondent- Management. The petitioner was engaged on daily wages and worked from 1.11.1980 to 29.1.1984. He has been paid rightly his wages up to 29.1.1984 and nothing is due to the Corporation. He has not worked after 29.1.1984. Ex.W-I has not been proved in the Labour Court. He was not competent to sign any document of the respondent- Corporation as he was engaged to watch and ward the stocks of PUNSUP. He could not prove before the Labour Court that he worked for 240 days in 12 months preceding 1.7.1984. The order of the Labour Court dated 13.8.1987 was ex parte. The petitioner cannot take undue benefit of filing new pleadings beyond the claim statement filed in Civil Writ Petition No.19480 of 1998 -5- the Labour Court, Jalandhar. The Presiding Officer, Labour Court in his order dated 1.6.1998 has clearly mentioned that the petitioner has withdrawn the application filed by him under Section Section 33-C(2) of the Act. The reference is hopelessly time-barred as the same was made after four years. The petitioner was engaged on daily wages and the terms of engagement came to an end every day. Lastly, it has been prayed that this petition may be dismissed. Vide Annexure P.21, order dated 26.2.1998, the matter was remitted to the Presiding Officer, Labour Court, Jalandhar for deciding it afresh by setting aside Annexure P.7. After hearing the representatives of both the parties and examining the evidence on record, the learned Presiding Officer, Labour Court, Jalandhar vide Annexure P.24, the impugned award dated 1.6.1998 held that the workman was not in service after 29.1.1984 and if worked upto 30.6.1984, then he had not completed 240 days of work with the respondent within 12 months and the reference being against Joginder Singh is not maintainable and the same is bad for want of necessary parties. Feeling aggrieved therewith, the petitioner has preferred this petition. I have heard the learned counsel for the parties, besides perusing the findings returned by the learned Presiding Officer, Labour Court, Jalandhar with due care and circumspection. Mr. K.L. Arora, Advocate appearing on behalf of the petitioner urged with great eloquence that the petitioner was appointed as Watchman on daily wage basis by the District Manager, PUNSUP, Kapurthala, who had terminated his services and he was the only person, who was giving salary to the petitioner and he was impleaded as respondent in the demand Civil Writ Petition No.19480 of 1998 -6- notice and thus, he has been rightly impleaded as the Management in the Labour Court. To controvert this submission, Mr. R.N. Sharma, Advocate representing respondent No.2 argued that a glance through the impugned award would reveal that Mr. Joginder Singh, District Manager, PUNSUP- Jatpura, Kapurthala has been arrayed as respondent- Management in his individual capacity and not in official capacity and thus, the learned Presiding Officer, Labour Court has rightly observed that the reference against Mr. Joginder Singh is not maintainable and the same is bad for want of necessary parties. This contention merits acceptance. There is no denying the fact that indeed Mr. Joginder Singh has been arrayed as respondent- Management in his individual capacity. Mr. K.L. Arora, learned counsel for the petitioner has shown the photostat copy of the statement of Sukhdev Singh, Inspector, PUNSUP- MW-I. As per this statement, the Managing Director of PUNSUP, Chandigarh is the head of the Corporation and the District Manager, PUNSUP is merely an employee. His (District Manager) services are transferable. Thus, respondent No.2 has rightly pleaded that he was not made party before the learned Labour Court, Jalandhar. As follows from the petition, the District Manager, PUNSUP, Kapurthala, Punjab has been arrayed as respondent. The learned Presiding Officer, Labour Court has observed in paragraph No.9 of the impugned award as under:- “I will dispose of application dated 14.5.1996 at the outset. The demand was raised against Joginder Singh, the then District Manager, PUNSUP, Kapurthala in his individual capacity and not against the Punjab State Civil Supplies Civil Writ Petition No.19480 of 1998 -7- Corporation. He remained silent for about 12 years and only when the case was ripe for arguments on merits, he came forward with the application for amendment. The management of the PUNSUP was the only necessary party and it having not been impleaded, the reference was bad. After this long delay of about 12 years, the workman cannot be allowed to wake up and to implead new party and ask this court to start proceedings denovo. I may add that the reference can be amended only by the Govt. and not by this court. Hence, I decline the prayer of the workman to implead management of PUNSUP.” To my mind, it has been rightly observed that the reference can be amended only by the Government and not by the Labour Court. Indeed, as is borne out from the record, the demand was raised against Mr. Joginder Singh, the then District Manager, PUNSUP, Kapurthala in his individual capacity and not against the Punjab State Civil Supplies Corporation. The application for impleading PUNSUP as a party being the Management was moved after a long slumber, when the matter was almost at its final stage. Firstly, Mr. Joginder Singh in his individual capacity could not be sued. Secondly, PUNSUP being the management was a necessary party, which has not been impleaded. Thus, no fault can be found with the afore- extracted observations rendered by the learned Presiding Officer, Labour Court. Mr. Arora further argued that Mr. Sukhdev Singh, Management witness (MW-1) has categorically admitted that the gate pass Ex.M-12 (Ex.W-1) has been issued by the Corporation. In fact Ex.W-1 is Annexure P.8. In view of this admission, it has to be assumed that all the gate passes Civil Writ Petition No.19480 of 1998 -8- Ex.P.8 to Ex.P.17 were issued by the petitioner- workman. It is discernible from these gate passes that the petitioner had actually worked from 1.11.1980 to 30.6.1984 and his services were terminated on 1.7.1984. In each of the four years, he had completed 240 days of service and thus, termination of his services was in violation of Section 25-F ibid as he had neither been paid any retrenchment compensation nor any notice pay. Again, Mr. Arora has drawn attention towards the photostat copy of the statement of Sukhdev Singh, Inspector, PUNSUP MW-1. Of course, towards the end of his cross-examination, he has admitted that the gate pass Ex.W-1 has been issued from their side, but these words by no stretch of imagination can be interpreted to mean that he had admitted that this gate pass has been issued by the petitioner- workman. The petitioner- workman has not adduced any evidence to the effect that he was authorised to issue the gate passes under his own signatures. In the absence of such evidence, it is very difficult to assume that he was competent to issue the gate passes. More to the point, he being a mere Chowkidar (Watchman), was to perform the duty of watch and ward. He was engaged to watch and ward the stocks of the PUNSUP. That being so, it would be going too far to assume on the strength of Annexures P.8 to P.17, that the petitioner had worked beyond 29.1.1984 as Chowkidar. As per the pay rolls Ex.M-1 to Ex.M-11 from January, 1984 to June, 1984, produced by Sukhdev Singh (sic.), the workman did not work after 29.1.1984. This apart, the petitioner when appeared as WW-1 was not sure, if he had received the wages beyond 29.1.1984. He admitted that he had moved an application under Section 33- C(2) of the Act before the Labour Court claiming wages for the period from 29.1.1984 to 30.6.1984, but the same was withdrawn by him. If he was Civil Writ Petition No.19480 of 1998 -9- confident that he has worked upto 30.6.1984, he in the natural course of events was not expected to withdraw the same. On the strength of the above referred gate passes, Mr. Arora has persuaded to hold that the petitioner had rendered services upto 30.6.1984. The learned Presiding Officer after holding discussion arrived at the conclusion that in his opinion, the gate passes Ex.W.1 and Annexures P.9 to P.14, P.16 and P.17 were not prepared by the workman. In my view, no contrary view can be taken to these observations. Mr. Arora further pressed into service that the requirement of law is that a person should have worked for 240 days in one year preceding the date of termination. The workman herein has completed this requirement, even if the period of service is taken to be from 1.11.1980 to 29.1.l984. The learned Presiding Officer, Labour Court has observed that “to avail protection of Section 25-F of the Act, he (referring to the petitioner- workman) must prove that he had worked for 240 days within 12 months preceding 1.7.1984. This period would come to 210 days.” On this score also, the workman is not entitled to any relief. In my estimation, the calculation of period carried out by the learned Presiding Officer, Labour Court, calls for no interference. In re: M.P. State Agro Industries Development Corporation Limited and another v. S.C. Pandey, (2006) 2 Supreme Court Cases 716, the Apex Court has ruled that a daily wager does not hold a post as he is not appointed in terms of the provisions of the Act and rules framed thereunder and, therefore, he does not derive any legal right. Their Lordships further observed that “It is also a well settled legal position that only because a temporary employee has completed 240 days of work, he would not be entitled to be regularised in service. Otherwise also Civil Writ Petition No.19480 of 1998 -10- the legal position in this behalf is clear as would appear from the decision of this Court in Dhampur Sugar Mills Limited v. Bhola Singh, (2005) 2 Supreme Court Cases 470.” Adverting to the instant case, if for a little while, it is assumed that the petitioner has completed 240 days of continuous service, notwithstanding, he would not be entitled to be reinstated. Mr. Arora further canvassed at the bar that the persons junior to the petitioner were retained in service and their services were also terminated subsequently after the termination of his services and all these 12 persons junior to the petitioner working on the same post of Chowkidar have been reinstated with continuity of service with full backwages vide award Annexure P.18 and their services have also been regularised. It is further argued that vide Annexure P.18/A, the services of Anokh Singh, who was junior to the petitioner have been regularised. Mr. R.N. Sharma, Advocate on behalf of respondent No.2 countered this argument by urging that this plea has been taken up by the petitioner for the first time before this Court and that being so, it is not maintainable. There is substance in this contention. As would be apparent from the impugned award, this plea was not raised before the Labour Court. This plea cannot be entertained by this Court in the exercise of writ jurisdiction, particularly when it was not raised before the Labour Court. Mr. Arora further argued that the respondent- Management in the written statement dated 3.9.1988 Annexure P.4 took up the plea that the job against which the workman was engaged was completed and, therefore, there was no alternative work with the Corporation and he could not be allowed to continue in service, whereas in the written statement dated Civil Writ Petition No.19480 of 1998 -11- 17.3.1994 Annexure P.5, the Management took up the plea that the workman worked with the Department upto 29.1.1984 and after receiving his wages upto date, he left the job on his own accord. Thus obviously, contradictory pleas were adopted. The learned Presiding Officer, Labour Court has held that the allegation of the workman that “the stand of the respondent in the two written statements is contradictory is not tenable.” Assuming that the respondent adopted inconsistent pleas in both the written statements, nonetheless, the petitioner would not gain anything out of this incongruity for the simple and obvious reason that the PUNSUP which is the Management in fact, has not been arrayed as respondent before the Labour Court. At the cost of repetition, it deserves to be pointed out here that Mr. Jgoinder Singh, the then District Manager, PUNSUP, Kapurthala has been arrayed as respondent in his individual capacity. Coming to Annexure P.23, the impugned order dated 22.5.1998, it reads as under:- “I have seen order of the Hon'ble High Court dated 26.2.98 & find that no such permission was granted by the Hon'ble High Court. Hence the application is dismissed.” If the petitioner was aggrieved with this order or some clarification was required from this Court, the petitioner should have approached this Court, but he did not pose a challenge to this order. Thus, seemingly, it has attained finality. Be moving the application dated 22.5.1998, the petitioner- workman had requested the Labour Court to summon the record relating to the exhibits (Anneuxres P.8 to P.17) as well as the attendance register for the period from 29.1.1984 to 30.6.1984. As already noticed, the petitioner did not adduce any evidence showing that he Civil Writ Petition No.19480 of 1998 -12- was authorised by the Corporation to issue the gate passes under own signatures. So, from whatever angle, the matter may be viewed, Annexure P.23, cannot be faulted with. In view of the preceding discussion, I do not consider it proper to interfere with Annexure P.23 as well as Annexure P.24 in the exercise of writ jurisdiction under Articles 226/227 of the Constitution of India. Consequently, this petition is dismissed with no order as to costs. December 16 , 2008 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes/No