IMPORTANT POINT
Relief to be granted in terms of Section 11-A of Industrial Disputes Act being discretionary relevant considerations would be the nature of appointment, purpose for which such appointment had been made, duration/ tenure of work, question whether post was a sanctioned one.

Headnote:Industrial Disputes Act, 1947—Sections 25F and 11-A—Termination of service—Respondent was appointed on 1-4-1994 and continued to work up to 31-7-1996—His services were terminated on 16-7-1997—Industrial dispute referred to Labour Court—Defence plea that respondent was appointed on a supervisory post and was not a workman—Labour Court held that though appointed as Supervisor, he was discharging duties of a workman and having completed 240 days of work in twelve months preceding his termination, his termination in violation of Section 25F was illegal and directed his reinstatement with full back wages and other benefits—High Court dismissed the writ and upheld the award—Appeal—Labour Court and High Court proceeded wrongly on premise that burden to establish non-completion of 240 days of work in twelve months was on management—Burden was on workman—Burden of proof that workman was not gainfully employed was on workman—Relief to be granted was discretionary and factors relevant were the nature of appointment, purpose for which such appointment was made, duration of work, question whether post was a sanctioned one—Respondent was appointed not in a sanctioned post but merely on recommendation of a minister—Recruitment made in violation of recruitment rules was in violation of Articles 14 and 16 of the Constitution —Grant of monetary compensation would serve interest of justice—Compensation of Rs. 50,000/- awarded to respondent.
Held : The Labour Court and the High Court also proceeded wrongly on the premise that the burden of proof to establish non-completion of 240 days of work within a period of twelve months preceding the termination, was on the management. The burden was on the workman. [See U.P. State Brassware Corporation & Ors. v. Udit Narain Pandey, JT 2005 (10) SC 344 and State of M.P. v. Arian Lal Rajak (2006) 2 SCC 610]. Equally well settled is the principle that the burden of proof, having regard to the principles analogus to Section 106 of the Evidence Act that he was not gainfully employed, was on the workman. [See Manager, Reserve Bank of India Bangalore v. S. Mani & Ors. (2005) 5 SCC 100]. It is also a trite law that only because some documents have not been produced by the management, an adverse inference would be drawn against the management. [See S. Mani (supra)]. Apart from the aforementioned error of law, in our considered opinion, the Labour Court and consequently the High Court completely misdirected themselves insofar as they failed to take into consideration that relief to be granted in terms of Section 11A of the said Act being discretionary in nature, a Labour Court was required to consider the facts of each case therefor. Only because relief by way of reinstatement with full back wages would be lawful, it would not mean that the same would be granted automatically. For the said purpose, the nature of the appointment, the purpose for which such appointment had been made, the duration/tenure of work, the question whether the post was a sanctioned one, being relevant facts, must be taken into consideration. It is not disputed that the appointment of the respondent was not in a sanctioned post. Being a ‘State’ within the meaning of Article 12 of the Constitution of India, the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules. Any recruitment made in violation of such rules as also in violation of the constitutional scheme enshrined under Articles 14 and 16 of the Constitution of India would be void in law. (Paras 13 to 18)
In the instant case, the respondent was appointed in violation of the rules. He was appointed at the instance of a Member of the Legislative Assembly who was a minister at the relevant time. No appointment could have been made at his instance. No authority howsoever high may be cannot direct recruitment of persons of his choice. Having regard to the factual circumstances of this case, we are of the opinion that grant of monetary compensation would sub-serve the interests of justice. We, therefore, allow the appeal and set aside the directions of the Labour Court and direct that in place of the respondent being reinstated with back wages, the Appellant would pay monetary compensation to him, quantified at Rs. 50,000/-.(Paras 21 to 23)

JUDGMENT

S.B. Sinha, J.—Leave granted.

2. The appellant herein being aggrieved by and dissatisfied with the judgment and order dated 29.4.2004 passed by a Division Bench of the Punjab and Haryana High Court at Chandigarh in Civil Writ Petition No. 4988 of 2002 affirming the award dated 22.11.2001 of the Labour Court, Gurdaspur is before us. It is not in dispute that the Appellant herein is a statutory body and being a local authority, governed by the Punjab Municipal Act. The terms and conditions of service, including recruitment of its employees, are governed by statutory rules.

3. The respondent herein was appointed on 1.4.1994. He continued to work up to 31.7.1996. His services were terminated on 16.7.1997 by issuing a notice of termination. Questioning the validity and legality thereof, an industrial dispute was raised which culminated in a reference made by the appropriate governments under Industrial Disputes Act (‘the Act’) in exercise of its power under Section 10(1)(c) thereof the following dispute to the Labour Court, Gurdaspur:

“Whether termination of services of Shri Surinder Kumar, workman is justified and in order? If not, to what/exact amount of compensation is he entitled?”

4. A plea was raised in the said proceedings on behalf of the appellant herein that the respondent was appointed on a supervisory post and, thus, was not a ‘workman’ within the meaning of Section 2(S) of the Act.

5. It is not in dispute that the respondent was appointed on daily wages. Before the Labour Court, the appellant raised a plea that the respondent was appointed on the post of Supervisor, on the recommendation of one Shri R.S. Puri, M.L.A. Sujanpur and then a Minister in the Government of Punjab. The Labour Court by reason of the impugned award, inter alia, held that although the second respondent was appointed with the designation of a Supervisor and was expected to look after the development work being carried out by the appellant and other construction works under the Nehru Rojgar Yojana, he was merely discharging the duties of a workman.

6. It was held by the Labour Court that the respondent completed 240 days of work within a period of twelve months preceding his termination. The Labour Court proceeded on the basis that the workman having completed 240 days of work in a calendar year, it was the bounden duty of the Appellant to produce the entire relevant records but the same had not been done. It is not in dispute that the attendance records of March 1994 and from April 1994 to February 1996 were produced but the attendance registers from March 1996 onwards were not produced. It, however, does not appear from the impugned award that the respondent had called for the records from the office of the appellant.

7. The Labour Court upon arriving at a finding that in terminating the services of the respondent, the appellant had not complied with the statutory requirements contained in Section 25F of the Industrial Disputes Act as to compensation had been paid to him in terms thereof, the respondent shall be directed to be reinstated in service with full back wages and allied benefits from the date of termination i.e. July 1997 till actual reinstatement.

8. A writ petition filed before the High Court by the appellant herein against the said award was dismissed.

9. Before the High Court, a specific plea was raised by the Appellant that the initial appointment of the respondent was contrary to the recruitment rules. The High Court’s attention was further drawn to the fact that the respondent was appointed in a Supervisory capacity to look after the construction work of the MC building and other construction works under the Nehru Rojgar Yojana.

10. The High Court, however, rejected the said contentions of the Appellant relying on or on the basis of the findings of the Labour Court that the work for which the respondent was appointed had been existing. It opined that its jurisdiction in the matter of issuing a writ of certiorari is limited. It fur

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2006 Supreme(SC) 449

IMPORTANT POINTRelief to be granted in terms of Section 11-A of Industrial Disputes Act being discretionary relevant considerations would be the nature of appointment, purpose for which such appointment had been made, duration/ tenure of work, question whether post was a sanctioned one.

Cases Referred (7)

IMPORTANT POINT
Relief to be granted in terms of Section 11-A of Industrial Disputes Act being discretionary relevant considerations would be the nature of appointment, purpose for which such appointment had been made, duration/ tenure of work, question whether post was a sanctioned one.