IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 10514 of 2006 Date of decision: 14th May, 2008 Balwan Singh … Petitioner Versus Presiding Officer, Industrial Tribunal-cum-Labour Court, Panipat … Respondents CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mrs. Abha Rathore, Advocate for the petitioner. Mr. Sanjay Chauhan, Advocate for respondent No.1. KANWALJIT SINGH AHLUWALIA, J. Present writ petition has been filed by Balwan Singh (workman) challenging the award of learned Labour Court (Annexure P-9) dated 26.07.2004 with a further prayer that the respondent-management be directed to reinstate the petitioner-workman with full back wages. The workman had served demand notice dated 25.08.1996 (Annexure P-1). In the demand notice, it was stated that he was appointed on the post of Safai Karamchari on 01.01.1989 with monthly wages of Rs.1500/- and has been continuously working with the management and his services were terminated on 16.08.1996. It was further stated that the management has also committed violation of Section 25-F, 25-N and 25-G of the Industrial Disputes Act. It will be apposite here to reproduce the following averment made in the demand notice: Civil Writ Petition No. 10514 of 2006 2 “You did not give me any seniority list. Workmen who were appointed after me Ganga Ram, Gurdip Kaur wife of Kartar Singh, Mukesh son of Shri Bali Ram etc. are still working with you. In this way you have violated the provisions of Section 25-H also in which you have not followed the principal of last come first go. In this way you have terminated my services wrongly and without any justification. I have also done free Labour in the Commissioner Smt.Jaiwanti Sheokand.” In reply to the demand notice (Annexure P-2), it was submitted that the workman had worked only for 140 days and regarding his claim that principle of ‘last come first go’ was not adhered to, the management in para 5 of the reply, stated that there can be no seniority list for daily wage employees. It will be pertinent to mention here that earlier the award (Annexure P-6) was made in favour of the workman but the same was set aside in CWP No. 12441 of 2003 and the case was remanded back to the learned Labour Court for afresh opportunity to management to produce evidence. Thereafter, the impugned award (Annexure P-9) has been passed. Learned Labour Court in Annexure P-9, opined as under: “Thus, the workman failed to challenge the record regarding his service period that he has worked less than 240 days in the last calendar year even there is no suggestion given to him (MW-1) that the workman has worked with the respondent continuously for more than 240 days and thus, has been terminated wrongly and illegally in violation of the provisions of sections 25-F of the Act. It is settled preposition of law that heavy onus to prove lies on the workman to prove that he has worked for more than 240 days in a calendar year preceding his date of his termination which the workman failed to prove as his solitary oral statement WW-1 can not rebut the Civil Writ Petition No. 10514 of 2006 3 documentary evidence produced by the respondent M-1 to Ex.M-6. Hence in view of law laid down by the Hon'ble Apex Court, in the case of Range Forests Officer Vs. S.T. Hadimani 2002 (1) LLJ 1053. The workman failed to prove that he has worked for more than 240 days with the respondent. Accordingly, I decide this issue against the workman.” Mrs.Abha Rathore appearing for the petitioner-workman has stated that even though the learned Labour Court returned the finding that petitioner-workman has not completed 240 days, a vital issue raised in the demand notice and in the award that there is a violation of Section 25-G of the Act, has not been decided by the learned Labour Court. Mrs.Rathore has stated that learned Labour Court noticed that no seniority list was provided to the workman and even though the specific instances were given in the demand notice (Annexure P-1), yet grievance of the workman that the principle of ‘last come first go’ has not been followed, has not been decided by the learned Labour Court. Mr.Sunil Nehra appearing for the State has stated that once the learned Labour Court came to the conclusion that workman has not completed 240 days, he is not entitled to raise an objection regarding violation of Section 25-G of the Industrial Disputes Act. Mr. Sunil Nehra urged that workman can only raise his grievance that Section 25-G has not been followed in case he has worked continuously for 240 days during the last 12 months preceding his termination. Mrs.Abha Rathore has relied upon judgment in Balraj v. HUDA and others, CWP 5552 of 1997 decided on 18.12.1997, wherein a similar question of law has been decided. In the case of Balraj (supra) the following question of law was raised and formulated: “The first contention urged by Mrs.Abha Rathore is that the award under challenge suffers from an error of law Civil Writ Petition No. 10514 of 2006 4 because the Labour Court has failed to consider the plea raised by the petitioner regarding violation of the rule of “last come first go” embodied in Section 25-G of the Act. Learned counsel invited our attention to the averments made in paragraph 8 of the statement of claim and the written statement filed by the parties before the Labour Court as well as the oral evidence produced by them and urged that as the violation of the rule of “last come first go” stands fully established, the impugned award should be set aside with a direction to the respondents to reinstate the petitioner in service. Shri Hemant Kumar, learned counsel for respondents No.1 and 2, argued that the provisions of Section 25-G cannot be invoked by the petitioner because he had not worked for 240 days within the meaning of Section 25-B read with Section 25-F of the Act. Learned counsel argued that the retrenchment of a workman can be declared unlawful on the ground of violation of Section 25-G only if it is proved that the workman has served the employer for a continuous period of one year.” After formulating the above question, a Division Bench of this Court held as under: “A conjoint reading of the above quoted provisions shows that the termination of the services of a person who falls within the definition of ‘workman’ under Section 2(s) amounts to retrenchment except when such termination is by way of punishment or it is covered by one of the exceptions contained in sub-clauses (a), (b), (bb) or (c) of the Act. Section 25-F (a) and (b) contains the conditions which an employer is required to fulfill before terminating the services of a workman who has worked under it for a continuous period of one year. Therefore, before a workman can seek invalidation of the termination of his service on the ground of violation of Section 25-F, he/she has to prove the factum of having served the employer for a continuous period of one year i.e., atleast 240 days within a period of 12 months prior to the termination of Civil Writ Petition No. 10514 of 2006 5 service. However, for invoking Section 25-G, the workman is not required to establish that he/she has served the employer for a continuous period of one year. The language used in sections 25-F and 25-G is substantially different because the requirement of completion of 240 days service by a workman incorporated in Section 25-F read with Section 25-B is not to be found in Section 25-G. Therefore, for proving that his/her service has been terminated by the employer in violation of the rule of “last come first go” enshrined in Section 25-G, the workman is not required to prove that he/she has worked for a continuous period of one year.” The learned Division Bench in Balraj case (supra) has relied upon following judgments and came to the conclusion that for violation of Section 25-G, workman is not entitled to prove that he had worked for 240 days continuously in the last 12 months preceding his termination: (i) Oriental Bank of Commerce v. Presiding Officer, Central Govt. Industrial Tribunal and another, 1994 (2) LLJ 770. (ii) C.W.P. No. 11860 of 1994 ‘Administrator/ Chairman, Market Committee v. Presiding Officer, Industrial Tribunal-cum-Labour Court, Hissar (decided on 31.8.1994). (iii) C.W.P. No.13935 of 1997 ‘Ram Mehar v. Presiding Officer, Labour Court U.T. Chandigarh (decided on 27.11.1997). (iv) Central Bank of India v. S.Satyam, AIR 1996 SC 2526. The contention of Mrs.Abha Rathore, counsel for the petitioner finds force from the ratio of Balraj’s case (supra). We find that the issue regarding violation of Section 25-G raised before the learned Labour Court in demand notice (Annexure P-1) has not been answered. Civil Writ Petition No. 10514 of 2006 6 Consequently, we allow the present writ petition and set aside the award (Annexure P-9) with a direction to learned Labour Court, Panipat to decide the reference No. 277 of 1997 afresh, after giving opportunity to the parties. We hope that the learned Labour Court will decide the matter within six months after the receipt of certified copy of this order. The parties are directed to appear before the learned Labour Court, Panipat on 09.06.2008. [KANWALJIT SINGH AHLUWALIA] JUDGE [ASHUTOSH MOHUNTA] JUDGE May 14, 2008 rps Reader has put up file before us today. It has been pointed out that in the coram, presence of Mr.Sanjay Chauhan, Advocate has been recorded whereas at page 3 of judgment, wrongly name of Mr.Sunil Nehra has been mentioned as counsel for State. The inadvertent typographical error has crept. At page 3, name of Mr.Sunil Nehra for State be read as Mr.Sanjay Chauhan for respondents. [KANWALJIT SINGH AHLUWALIA] JUDGE [ASHUTOSH MOHUNTA] JUDGE May 22, 2008