L.P.A.No.921 of 2010 [1] IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Letters Patent Appeal No.921 of 2010 (O&M) Decided on : August 05, 2010 Malwa Khalsa Sr.Secondary School ... Appellant VERSUS The Presiding Officer, Labour Court, Ludhiana and another ... Respondents CORAM : HON'BLE MR.JUSTICE M.M.KUMAR HON'BLE MR.JUSTICE A.N.JINDAL Present: Mr.J.S.Dhaliwal, Advocate for the appellant. A.N.JINDAL, J.- Assailed in this appeal is the judgment dated 10.5.2010 passed by learned Single Judge of this High Court dismissing the Civil Writ Petition preferred by Malwa Khalsa Sr.Secondary School (herein referred as `the petitioner') against respondent No.2 Raj Kumar – workman (herein referred as `the workman'). Undisputed facts are that respondent No.2 was appointed as a Science Laboratory Assistant under the petitioner w.e.f. 19.7.1991 and he continued under its Management until his termination on 20.7.1996. A dispute was raised. Consequently, a demand notice was issued by the workman on 13.8.1996, which was referred to the Labour Court, Ludhiana L.P.A.No.921 of 2010 [2] vide reference No.646 of 1997, which ended into a settlement between the parties and the Labour Court vide order dated 10.11.2000 (Annexure P-1) passed the following award :- “This reference was taken up today. The parties have come to a voluntary settlement and given statements to the effect that the workman shall be reinstated with continuity of service but without back wages on his reporting for duty on 13.11.2000, on the previous terms and conditions. The workman, therefore, is directed to report for duty on 13.11.2000. The reference stands answered accordingly. No order as to costs. Sd/- S.K.Aggarwal Presiding Officer 10.11.2000 Labour Court, Ludhiana” Pursuant to the aforesaid award, the workman joined the services of the petitioner. However, again his services were terminated w.e.f. 31.05.2001. The assertion made by the workman was that he was not allowed to join duty after vacation. As such, the workman was again impelled to issue the demand notice, which resulted into the reference, whereby, on 23.12.2009, an award was passed by Labour Court, Ludhiana in favour of the workman with costs entitling him to reinstatement with continuity of service with full back-wages. The prime contention raised by the counsel for the petitioner is that the workman could not be reinstated and awarded back-wages for having not completed 240 days of service and he is not protected under L.P.A.No.921 of 2010 [3] Section 25(f) of the Industrial Disputes Act, 1947 (for brevity `the Act'). The learned Single Judge has also not taken into consideration the facts that the workman was appointed purely on temporary/ad hoc basis for the session 2000-2001, which is evident from the appointment letter dated 13.11.2000 (Annexure P-2) and that the relieving of the workman at the end of Session 2000-2001 clearly falls under provisions of Section 2(oo)(bb) of the Act and does not amount to retrenchment, as such, the provisions of Section 25(f) of the Act are not attracted. No appointment letter was issued to the workman. Counsel for the appellant has placed reliance on a judgment of the Supreme Court in case of Allahabad Jal Sansthan vs. Dayashankar Rai and another (2005)5 SCC page 124. Reliance has also been placed on another judgment rendered in the case of UP State Brassware Corp. Ltd. and another vs. Uday Narayan Panday , (2006)1 SCC page 479, wherein, it was observed as under:- “Although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result, but now, with the passage of time, a pragmatic view of the matter is being taken by the court realising that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/or for a period that was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago...” It was further observed as under:- L.P.A.No.921 of 2010 [4] “A person is not entitled to get something only because it would be lawful to do so. If that principle is applied, the functions of an Industrial Court shall loose much of their significance.” Before we lay our hands to look for the legal status, it needs to be determined, “if the workman had completed 240 days in a preceding calendar year, immediately before passing of the impugned termination order?” It is not the case where his period of service could be counted w.e.f. the date he was taken back into service. Admittedly, initially, he had joined the service of the petitioner as Assistant w.e.f. 19.7.1991, but on account of the dispute between the petitioner and the workman, his services were terminated on 20.7.1996, regarding which a demand notice was issued on 13.8.1996, which remained pending before the Labour Court and ultimately, in order to save the financial loss, the petitioner appears to have settled with the workman and allowed him to join the service with immediate effect, but without back-wages on the previous terms and conditions. It may be pertinent to mention here that since the Management has not produced on record the previous terms and conditions, on the basis of which the workman was employed. Accordingly, an inference could be drawn against the Management. Similarly, though the Management did not issue any formal order of appointment, yet their statement in court that he (workman) shall be reinstated with continuity of service, but without back- wages, would not call for any further appointment letter and his service L.P.A.No.921 of 2010 [5] certainly would be treated as continuous w.e.f. 19.7.1991. Thus, while calculating the service period of the workman since that day of 1991, till his services were terminated, it comes to more than 240 days in one preceding year, immediately before passing of the termination order dated 31.05.2001, so as to attract the provisions of Section 25(f) of the Act. Consequently, the Management was required to comply with the said provision and one month notice and retrenchment compensation was required to be paid to the workman by the Management. As such, because of non-compliance of the aforesaid provision, the workman was certainly entitled to reinstatement into service with back-wages. A similar view was taken in case M/s Nicks (India) Tools vs. Ram Surat, 2004(4) SCT 130. In this case, the Labour Court had given 25% of back-wages, which was enhanced to 100% by the High Court and the Apex Court had maintained the same. It is not a case of sheer termination within a period of 240 days, but it reflects the unfair labour practice on the part of the petitioner – Management. The witnesses examined by the petitioner as MW1 and MW2 have admitted that no letter of appointment exhibited as M-3 was conveyed to the workman. Now, the petitioner wants to place reliance upon the said appointment letter, which certainly appears to have been appended only to show that the workman was appointed only for the academic session 2000-2001. Not only this, in the peculiar circumstances of the case, as referred to above, the Management with an intention to get rid of arrears of salary to be paid to the workman, compromised with him and took him back into service, but after a pause of six months, he was not allowed to join the service after the L.P.A.No.921 of 2010 [6] vacation. There could be no other worst case than the present one, which could indicate the unfair labour practice. Even otherwise, the concealment of documents by the petitioner i.e, terms and conditions of employment also go a long way to draw such inference against it. Resultantly, finding no merit in the appeal, the same is hereby dismissed in limine. (M.M.KUMAR) ( A.N.JINDAL ) JUDGE JUDGE August 05, 2010 `gian'