CIVIL WRIT PETITION NO.13111 OF 2010 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: JULY 27, 2010 INDE-DUTCH System (India) Ltd., Chandigarh .....Petitioner VERSUS The Presiding Officer, Industrial Tribunal-cum-Labour Court, UT., Chandigarh and another ....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. P. K. Mutneja, Advocate, for the petitioner. **** RANJIT SINGH, J. The petitioner-management has challenged the award dated 15.2.2010, Annexure P-10 passed by Presiding Officer, Industrial Tribunal-cum-Labour Court, U.T., Chandigarh. Through this award, the Labour Court has allowed the reference and held the respondent-workman entitled to reinstatement with lump-sum compensation of Rs.one lac in lieu of back wages for intervening period. Respondent-workman sought reference of an industrial dispute pleading his illegal termination. The Government accordingly made reference of the dispute to the Labour Court. Workman filed a statement of claim. CIVIL WRIT PETITION NO.13111 OF 2010 :{ 2 }: His case in brief was that he had joined the services of the management on 17.5.1999 as Medical Transcriptionist and worked till 9.6.2001. The management had refused to assign work to him, when he reported in May 2001 and he was only asked to sign the attendance sheet. This was done without disclosing any reason. Subsequently workman was stopped from entering the work place. He, raised protest when he was allowed to sign attendance sheet. Ultimately, on 9.6.2001, workman was not allowed even to sign the attendance sheet. He was being forced to resign or to quit the job voluntarily. When he refused, his services were terminated. The respondent-workman would also plead that the management in this clandestine manner forced hundred of workers to resign in order to bypass the statutory provisions. Some of the juniors of the workman were retained. The petitioner-management appeared and filed a written statement, stating that the workman was never discharged, dismissed or terminated and hence, the reference was not maintainable. Plea further was that the petitioner concern was neither industry nor an industrial establishment and provisions of Industrial Disputes Act would not apply. On merits, it was pleaded that due to heavy recession, there was paucity of work and the Company counselled the employees that there may be need to retrench some of the employees in accordance with the provisions of the Act. Before the Conciliation Officer, the petitioner took a stand that the respondent-workman absented from duty unauthorisedly. The petitioner-management apparently in a smart move expressed willingness to allow the respondent-workman to join the duty. The CIVIL WRIT PETITION NO.13111 OF 2010 :{ 3 }: respondent-workman accordingly was advised to report for duty. It is on this basis pleaded that despite this advice, the respondent- workman did not report for duty and hence, he was absent, which would not amount to termination of services. Both the parties led evidence on the issues framed. The specific stand taken by the petitioner-management was noticed by the Labour Court to the effect that it had counselled the workman. On this basis, the Labour Court held that it would stand proved that the management had refused work to the workman at that time. Otherwise also, the Labour Court found holes in the evidence produced by the management. The only witness produced by the petitioner-management conceded during cross-examination that he had no personal knowledge of the case and had deposed in the affidavit on the basis of record. The affidavit, however, was found attested as true and correct to his knowledge. The witness could not submit any reply when questioned that Sh.Sukhwinder Deol, Harjinder Singh, Pankaj Bhandari and Amarjeet Singh were working as Medical Transcriptionists on 13.4.2001. The respondent-workman had deposed that many of the workmen were asked to resign but he was not cross-examined in this regard. The Labour Court, thus, justifiably drew an inference that the management had created an atmosphere for various workmen to quit the job by resigning and that those who refused to resign, were not assigned work and, thus, their services terminated. Finding is that neither any notice was served nor any retrenchment compensation was paid. The evidence also showed that the management had appointed another person after terminating the services of the respondent-workman and, thus, had CIVIL WRIT PETITION NO.13111 OF 2010 :{ 4 }: violated the provisions of Section 25-H of the Industrial Disputes Act. The finding further is that it could not be established that the workman was working anywhere else and hence, was held entitled to be reinstated. The reference was, thus, decided in favour of the respondent-workman directing his reinstatement. The workman has been also held entitled to a sum of Rs.one lac as compensation in lieu of back wages. To be fair to the counsel, he has made a strenuous effort to urge that the question of back wages would require consideration as the respondent-workman was found gainfully employed. This Court in Civil Writ Petition No.6673 of 2006 (Range Forest Officer, Rewari and another Vs. Sh.Ram Chander and another), decided on 2.9.2009, has considered in detail the question of back wages or award of compensation in lieu thereof. As is observed in this case, it is not as if worker has always been shown the door with compensation package even in cases where termination was found to be bad. After making reference to various judgments, this Court culled out certain legal principles, which are listed as under:- “(i) A workman claiming reinstatement and back wages must first show that there has been a non-compliance of statutory provisions that rendered the termination bad. (ii)If the conditions of employment bring the cessation of work to Section 2(oo)(bb) of ID Act, there is no question of invoking Section 25-F. (iii)In cases of public appointments, if the initial recruitment is held to be illegal, being in violation of recruitment rules, whenever they are shown to exist, CIVIL WRIT PETITION NO.13111 OF 2010 :{ 5 }: the relief of reinstatement shall not be possible. (iv)If there is no sanctioned post, the issue of regularization just does not exist and the Court exercising powers under the ID Act shall not direct regularisation. (v)In case of daily workers, in the event of proof of applicability of Section 25-F and its non-compliance, relief of reinstatement shall be perfectly justified. (vi)However, re-instatement shall not be ordered merely because, it shall lawful for the court to do so. The court shall take note of evidence about the nature of engagement, the availability of work or its continuing nature, the power or otherwise of the person that appointed the workman, the period of engagement, the length of litigation before court and the change in circumstances as regards the status of the employer and the workman etc. (vii)In the event of the Court deciding not to order reinstatement, the court shall award compensation.” There is, thus, no need to notice all the judgments and to over burden the decision in this case. Suffice it to notice that in the event where the Court decides not to order reinstatement it can and it is to award compensation once the termination is held to be bad or illegal. Concededly, the termination in this case has been held to be in violation of the provisions of Section 25-F of the Industrial Disputes Act. Not only that, it is also held that workman was not working anywhere else. CIVIL WRIT PETITION NO.13111 OF 2010 :{ 6 }: As per the counsel, it is on record that the petitioner was gainfully employed and had also not made a claim for back wages. In fact, in the affidavit tendered by the workman before the Labour Court, he had claimed back wages. It was for the management to show that he was gainfully employed and hence, would not be entitled to back wages. The petitioner has remained without job for nearly nine years and lump-sum amount of Rs.one lac in lieu of back wages at the time of reinstatement would not be unreasonable or excessive to call for any interference. The writ petition is accordingly dismissed in limine. July 27, 2010 ( RANJIT SINGH ) khurmi JUDGE