C.W.P No.3337 of 1989 (O&M) -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P No.3337 of 1989 (O&M) Date of Decision: 03.07.2009 Smt. Bachni and others .......Petitioners Versus The Presiding Officer, Labour Court, Jalandhar and another ....Respondents Present: Mr. J.C. Verma, Sr. Advocate with Ms. Deepinder Kaur, Advocate for the petitioners. Mr. S.S. Brar, Advocate for the respondents. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? -.- K. KANNAN J.(ORAL) 1. The petition challenges the award of the Labour Court rejecting the reference that called for an adjudication whether the termination of services of the petitioners- “workmen” was justified and whether they were entitled to any compensation. 2. The admitted contentions of the workmen were that they were employed on a daily rate of wages but the management had terminated their services without any justification. The contention was that there had been a clear violation of the mandate of Section 25-F of the Industrial Disputes Act, 1947. The Labour Court in its award reasoned that all the workmen were daily paid casual workers who used come to the factory to get work every day. According to it, C.W.P No.3337 of 1989 (O&M) -2- the services of the workmen were terminated since according to the management, there was no work and having regard to the seasonal nature of work with the management and having regard to the nature of engagement as casual, the petitioners were not entitled to seek for reinstatement. The Labour Court found that the workmen were not entitled to any relief they were sought. 3. Learned Senior Counsel appearing for the petitioners, who were three women by names Smt. Bachni, Smt. Vidya and Smt. Mariam Kaur would urge that they had been engaged in the activity of the respondent company which canned fruits and vegetables and the nature of activity was such that they had to employ the workers on a regular basis. Without constant works secured through workmen, it was not possible for the factory to be run. The management knew that they were not merely engaging petitioners as casual workers and all the workmen had been enjoying the benefits of contribution of Provident Fund and ESI and they were also granted bonuses periodically every year. It was the further contention of learned Senior Counsel that the management had failed to bring all the records, which would show the period of engagement to the respective workmen and they had indulged in the unfair trade practices by deliberately not allowing the petitioners to complete 240 days (vide Annexure P-9 dated 14.06.1980) and circulate workmen in such a fashion that statutory benefits were denied to them. 4. In support of his contention, learned Senior Counsel refers to several decisions of the Hon'ble Supreme Court and this High Court that spelt out the propositions that if there were secret circulars or C.W.P No.3337 of 1989 (O&M) -3- practice of management that deliberately denied to workmen 240 days' continuous service, it would amount to unfair trade practice (Director, Health and Family Welfare, Punjab, Chd. and others Vs. Baljinder Singh and another 2006 (2) RSJ 314, The Kapurthala Central Co- operative Bank Ltd., Kapurthala Vs. The Presiding Officer, Labour Court, Jullundhur and others 1984 (1) SLR 435, The Ferozepur Central Co-operative Bank Ltd., Ferozepur Vs. The Presiding Officer, Labour Court and another 1985 (2) SLR 437, Simla Devi Vs. Presiding Officer, Labour Courts, Bathinda 1998 (2) SCT 72). He also referred to me the certain decision of the Hon'ble Supreme Court, which lays down that if the termination of services of even a probationer which is not bona fide in character, the termination would be invalid (Utkal Machinery Ltd. Vs. Santi Patnaik (Miss) 1996 I LLJ 398). In yet another judgment, the Hon'ble Supreme Court in H.D. Singh Vs. Reserve Bank of India and others AIR 1986 SC 132 dealt with the case of striking off name of the workmen from the rolls and non-observance of the procedure described under Section 25-F as constituting retrenchment that was invalid in law. While in the first judgment of the Hon'ble Supreme Court referred to above, the Hon'ble Supreme Court granted compensation of one year salary, in the latter case, the issue was whether striking off names of the petitioners from the rolls amounted to termination of services and whether such termination was retrenchment within the meaning of Section 2 (oo). The decision was rendered against the Reserve Bank of India and directed termination of services in the case where a person has been working as Tikka Mazdoor. C.W.P No.3337 of 1989 (O&M) -4- 5. In response to the arguments entered by learned Senior Counsel appearing for the petitioners, Sh. Brar, learned counsel appearing for the respondents makes pointed reference to the evidence adduced in the case that admittedly, the petitioners even as per their contentions, had been engaged for a period of 15 to 20 days in a month and the document MW-3/1 showed that from 1975-76, the workmen had not been engaged for more than 133 days in a year. Smt. Bachni, who is the first petitioner before this Court had worked only for a period of 13 days in the year 1978-79. Smt. Vidya Devi, who is the second petitioner before this Court had worked only for 11 days during the period while Mariam Kaur, who is the third petitioner had not worked at all during the period. He also referred to the fact that the nature of employment was peeling and cutting of fruits and vegetables and the petitioners themselves had admitted to the seasonal character of employment. In particular, he referred to the statement of of the second petitioner-Smt. Vidya Devi when she admitted "it is correct that we used to peeling and cutting of vegetables and fruits etc. and it depended on the season. It is correct that lady workers used to assemble in front of the door of the respondent, every day, and required number of ladies were employed on each day. It depended on the requirement of the management. On a number of occasions, I was aksed to go back for lack of work." The management version was put through the Production Supervisor, Sh. Sukhdev Singh (MW-2), who also spoke about the seasonal character of employment and the casual employment itself varied between 16 to 120 days. 6. From the admission of the petitioners and the nature of C.W.P No.3337 of 1989 (O&M) -5- employment that the respondent factory was engaged, it is clear that all the workers were not employed right through the year and the workers used to assemble at the gate when on a daily appraisal of the needs of the factory, the workmen were offered employment. The nature of work itself was such that they could not be employed for a continuous period and at any rate for a continuous period of 240 days that the law requires. 7. It needs to be also brought out that there has been a paradigm shift since the days when the industrial policies even in private sector leaned in favour of labour to secure to them a continuity of service and when they afforded sufficient protection for tenure of employment and wages. Some States even came with legislation for confirmation of permanent status in employment on completion of certain number of days of service. Economic policies and globalisation have brought in new concepts of hiring and firing workmen. Judicial opinion now veers around what would be appropriate and what would make for justice for a person, who is terminated from services without compensation. Merely length of service does not guarantee to a workman a continuity of service as well. It is ultimately the issue of balancing of interest of what is good for nation's economy, for increasing production and for enabling the capital to decide what is appropriate to improve the means of production. Maybe, in economies where employment opportunities are aplenty, loss of jobs may not mean everything for it would be always possible for labour to migrate himself to greener pastures. India is still a poor country with a large work force. Labour has not C.W.P No.3337 of 1989 (O&M) -6- properly organised itself in all sectors. 8. I make no more than an expression of sentiment that the labour is given its due but at the same time, I feel compelled to stay within the frontiers of law as have been propounded by the Hon'ble Supreme Court and as to how the law is applied in all the Courts. Judicial discipline and rectitude require me to tow the line of our Courts. While deciding an issue relating to the validity of retrenchment, it is always seen through the prism of Section 11-A of the Industrial Disputes Act. The powers of the Industrial Tribunal or the Labour Court will be so exercised that an adjudicatory body that decides on whether a retrenchment was valid or not would seek in the context of the nature of the employment, the period of employment, the terms of service etc. It may be unfair in situations where workmen turn up gates every day whether they would be going to work or to return homes without work; whether they would earn their daily meal or they would go starving. At least, in this case, there has been no better evidence available than how the petitioners themselves had admitted the case that they were not continuously employed for 240 days at any time and that their own employment was available some day and not available on another day. If that is the nature of employment as the petitioners have themselves admitted their status to be, I am afraid, I have no breadth of latitude available with me than to observe that the petitioners are not entitled to the reliefs as sought for by them. It is not as if all the documents are before the Court, the management that had a complete control of the records had placed records for certain years where the petitioners have been employed for C.W.P No.3337 of 1989 (O&M) -7- nearly 9 to 10 years. They have fought the long battle that they started in the year 1980 and this decision is rendered nearly three decades later. They will all not go without compensation. It is not for approaches of this judgment making a dispensation merely on sympathies. It is the failure of the management to secure such documents as it could have produced to make a fairplay and if they were turning out the petitioners without further employment, they should compensate each of the petitioners. Though the petitioners shall not be entitled to the relief of reinstatement, each one of them shall be compensated in the sum of Rs.10,000/- each for a termination that has been visited on them in respect of the services that they held for nearly 8 and 9 years although in shorter spells of less than 240 days in each year. 9. The writ petition stands disposed of as such affirming the decision of the Labour Court in so far as its finding that they were not entitled to reinstatement but it is subject to the modification that each of the petitioners are entitled to compensation of Rs.10,000/- each. (K. KANNAN) JUDGE July 03, 2009 Pankaj*