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2009 Supreme(P&H) 1545
2009(4) LAW HERALD (P&H) 2561
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice K. Kannan
C.W.P No.6673 of 2006 (O&M)
Range Forest Officer, Rewari & Anr.
v.
Sh. Ram Chander & Anr.
{Decided on 02/09/2009}
For the Petitioner: Mr. D.S. Nalwa, Addl. A.G., Haryana.
For the Respondent No.1:Mr. Ashwani Bakshi, Advocate.
IMPORTANT POINT
Reinstatement--For the non-compliance of Section 25-F by failure of the management to prove that no such work existed or that it was seasonal, the workman shall be entitled to reinstatement
Headnote:(A) Industrial Disputes Act, 1947, S.25-F--Termination of Services--Daily wager--Reinstatement--Reinstatement of a person in a Forest Department--Workman had been terminated when he was a daily rated worker--Workman had claimed that he had been terminated from service without assigning any reasons--There may not be sanctioned posts but it is not the contention that there was not even work available for any daily rated worker or daily rated workers are not employed by the Forest Department at all--If such an eventuality does arise, it shall always be possible for the management to terminate the services by following the procedure under S.25-F of the I.D Act--Right which is provided under the Industrial Disputes Act could not flouted either by the workman or the management--Whoever commits a breach or violates a provision shall restore the benefit which the respective parties would have obtained but for the breach--For the non-compliance of Section 25-F by failure of the management to prove that no such work existed or that it was seasonal, the workman shall be entitled to reinstatement--Award of the Labour court confirmed in all respects, except as regards the back wages, which is restricted to 50% (P.18 & 19)
(B) Industrial Disputes Act, 1947, S.25-F--Termination of Services--Daily wager--Reinstatement--There is no law that a daily rated worker is not entitled to reinstatement in public employments--There is sufficient guidance available through several erudite pronouncements of the Hon’ble Supreme Court and by the Division Bench. If the reference to all the judgments could be distilled to legal principles, they could perhaps be stated as follows:-
(i) A workman claiming reinstatement and backwages must first show that there has been a non-compliance 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, 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 possible (regularisation.
(v) In case of daily workers, in the event of proof of applicability of section 25 F and its non-compliance relief of re-instatement 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 re- instatement, the court shall award compensation. (P.16)
(C) Industrial Disputes Act, 1947, S.25-F--Termination of Services--Daily wager--Reinstatement--Violation of Section 25-F does not in all cases lead to reinstatement--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, the relief of reinstatement shall not be possible--In case of daily workers, in the event of proof of applicability of section 25 F and its non-compliance, relief of re-instatement shall be perfectly justified. However, re-instatement shall not be ordered merely Because, it shall lawful for the court to do so. (P.16)
K. Kannan J.:-
I. Dispensation of the Labour Court
1. By the impugned award before the Labour Court Gurgaon, the workman’s reference seeking for an adjudication that the termination was bad, was accepted and was directed to be reinstated with continuity of service and 50% back wages. The case of the workman was that he had joined the respondent-establishment as Mate on 17.07.1991, had completed more than 240 days of continuous service and that he had been illegally terminated on 15.09.1992 in violation of Section 25-F of the Industrial Disputes Act without giving notice and payment of retrenchment compensation. The contest on behalf of the management was on the ground that there was no post as Mate in Aravali Project and the nature of work was totally seasonal and the petitioner himself was merely on daily wages. The contention was that the project had been funded by EEC that was taking up afforestation drive, which was purely an ecological objective. The workman had examined himself but the management failed to lead any evidence. The Labour Court found that the oral evidence of the workman went unrebutted and the workman’s claim that he had worked more than 240 days was, therefore, bound to be accepted and passed the award as detailed above.
II. Contentions on behalf of the State before High Court
2. The contention of the State through its counsel, Sh. Nalwa was that the onus of proof that the workman had completed 240 days of service was wholly on the workman and even though no evidence had been let in on the side of the management, the Court could not have accepted the workman’s contention by his mere ipse dixit. It was the further contention on behalf of the management that the project had already closed down and wound up and therefore, the direction for reinstatement was improper. The claim for back wages also ought not to have been accommodated in favour of the workman in the manner done by the Labour Court.
III. Examination of workman’s contention regarding length of service
3. Although the issue objecting to the characterization of the Forest Department as an ‘industry’ had been taken in the writ petition, the same was not argued. The contention, therefore, veered on whether the workman’s evidence could have been accepted by the Labour Court to grant the reliefs to the workman as sought for. Admittedly, the workman was a daily wager and the quality of evidence would, therefore, depend on what the workman was capable of producing. Admittedly, the wages had been paid in cash and ought to have been entered in the payment register signed by the workman and retained by the management. If the management had participated in the proceedings, it should have been possible for the workman to summon the records from the management and pressed for presumptions against it, if the document had not been produced. When other documents to disprove the oral assertions by the workman was available and if the management has chosen not to produce the same even before this Court when writ petition was filed, I have no hesitation to hold that the workman’s contention that he had 240 days of continuous service was true. The finding of the Labour Court is, therefore, affirmed.
IV. Cessation of work or closure of project shall be matters of pleading and evidence
4. The further contention on behalf of the management was that the project itself had been closed and wound up and therefore, it is not possible to reinstate him in service. This fact cannot again be a matter of mere assertion in a writ petition where the management was bound to show that the project had closed and there is no longer any work available. The contention on behalf of the workman, however, was that the Forest Department is engaged in several projects and the workmen were retained and employed in various projects one after the other and mere closure of one project would not mean that the workman could not also be continued. In my view, no hard and fast rule could be mad
