Gurpartap Singh vs Presiding Officer and Others

Rajiv Narain Raina, J.—The Presiding Officer, Labour Court-cum-Industrial Tribunal, Amritsar has answered Reference No. 46 of 2008 against the petitioning worker holding that the Forest Department is not an Industry nor was the claimant a workman holding the post of Beldar on regular basis. The court has relied on State of Punjab through Assistant Director, Horticulture, Faridkot v. The Presiding Officer, Labour Court, Bhatinda and another, 1994 (2) R.R.R. 192 : 1994 (2) RSJ 130 to hold that the Horticulture Department is part and parcel of the Agriculture Department of the State Government and will not fall within the ambit of "Industry" defined in Section 2 (j) of the Industrial Disputes Act, 1947 (for short "the Act"). The question whether the petitioner is a workman has been answered in the negative. The court a quo has held that the workman never joined service of the management nor had he received salary against a permanent post from the management. This finding was recorded by reasoning that the claimant had not produced any appointment letter on the file to substantiate his claim. Neither was the post allegedly occupied by him ever advertised to the public. In cross examination, the claimant himself admitted that he has no proof of appointment and therefore deserved no better. The onus was on the claimant to prove his employment, appointment and joining and consequential payment of salary as a Beldar from the management, the post he claimed he worked on. In absence of positive evidence, the reference has been declined and the labour court has found it not possible to hold that the services of the claimant were terminated as alleged on January 07, 2007. It was the case of the petitioner that he was appointed as a Beldar on January 05, 1997 and was paid Rs. 2525/- per month against a permanent post while performing duties at the Tarn Taran Nursery run by the State till and his services were dispensed with. His salary from January 01, 2007 to January 06, 2007 remains due and pending. The claimant pleaded that his services were terminated without any notice, charge-sheet or inquiry and that too without paying any compensation to him, which meant was in breach of protections afforded by Section 25-F of the Act.

In the written statement filed by the State, the denial was to the effect that the worker had not served as Beldar against a permanent post from January 05, 1997 onwards. However, they admitted categorically that he served at the Nursery at Tarn Taran. In para. 2 of the written statement it was admitted that the applicant ''as per record'' has worked in Nursery, Tarn Taran in the Forest Department up to January, 2007 and he has been paid wages on monthly basis and no wages remain unpaid. In para. 3 the department admitted that the claimant was removed from service on January 07, 2007 by averring; "contention of worker that he had been removed from service on 7.01.07 is totally correct, it is important to mention here that because of shortage of work, he was removed from service." In the face of the pleadings in the written statement, it cannot be said that the petitioner never worked from 1997 to 2007, which makes a decade of service of whatever kind it may have been. If he worked ''as per record'' no record was produced to rebut the assertion of the petitioner.

In para 3 of the impugned award dated January 19, 2012 the labour court has recorded for reasons best known to it, as follows:-

"3. Management contested the reference by filing written statement, in which it was admitted (should be denied) that the workman had been working with the management since 5.1.1997 at the rate of Rs. 2525/- per month as Beldar against permanent post. It was also admitted (should be denied) that his duty was at Tarn Taran Nursery. Management also took the stand that if it is admitted to be correct that workman ever served with the management against regular post, then he is bound to adduce proof if he is in possession."

From where the Labour Court has observed words in parenthesis to suggest that the admission of the State should actually be read as "(should be denied)" is of obscure origin and is an uncalled for remark which is an imagined addition to the specific words of admission used in the written statement. Once this fallacious chain of reasoning had set in and weighed in the mind of the labour court it was seriously deflected from the path of justice and then many reasons were found to non-suit the petitioner on jurisdictional facts, the proof of which are necessary to steer a claim for reinstatement to service, i.e., the activity being not an industry and the claimant not a workman by definition. The labour court also fell in error in keeping itself pre-occupied by the word ''Beldar''. A Beldar is no more than a laborer/workman who may be paid on daily wages in the prevalent muster rolls system of employment. If the State did not deny that he had worked albeit as a daily wager or on seasonal basis in a nursery managed by the Forest Department, the claim ought not to have been thrown out on mere ipse exit of the labour court. In the face of the admission by the State, it had taken upon itself the burden of disproof, onus having shifted upon them by their admission and the workman was not required to substantiate his stand by any further proof or to have led evidence in support of an admission made by the department in the pleadings. It is trite to say that issues arise out of pleadings. If an assertion is admitted it requires no proof by oral or documentary evidence. If the workman admitted in his cross-examination, on a question put to him to elicit a favourable response that he had no proof of appointment his claim could not have been disbelieved for lack of documentary evidence for the above reason. As a matter of fact the question itself could not have been put to elicit an answer in their favour as the question itself was contrary to pleadings. The State, however, insisted that he was not Beldar holding a permanent post with positive rights involved. It was not that the petitioner never worked at all in any capacity whatsoever. It is also trite to say that a daily wager is a workman who has the protection of the provisions of industrial law. Much water has flown since the days of State of Punjab through Assistant Director, Horticulture, Faridkot v. The Presiding Officer, Labour Court, Bhatinda and another rendered in 1994, two decades back with still no clear light at the end of the tunnel on the subject of the social forestry department being or not being an industrial activity. In Chief Conservator of Forests and another, Vs. Jagannath Maruti Kondhare, etc. etc., a three judge Bench of the Supreme Court took the view that the social forestry department of the State is an industry. A different view was taken in State of Gujarat and Others Vs. Pratamsingh Narsinh Parmar, by a bench of two Hon''ble judges of the Supreme Court giving rise to a conflict which was referred to a five judge Bench in State of U.P. Vs. Jai Bir Singh, to remove the apparent conflict in the two decisions. The Supreme Court has opined in Jai Bir Singh for an expansion of the changing concept of sovereign functions in a welfare State and thereby the decision in Bangalore Water Supply and Sewerage Board Vs. A. Rajappa and Others, deserves reconsideration by a larger bench while observing:-

"This Court must, therefore, reconsider where the line should be drawn and what limitations can and should be reasonably implied in interpreting the wide words used in section 2 (j). That no doubt is rather a difficult problem to resolve more so when both the legislature and executive are silent and have kept an important amended provision of law dormant on the statute book."

The Supreme Court has called for the constitution of a yet larger Bench than decided Rajappa to resolve the vexed questions involved. Two of the paragraphs from the reference order deserve to be quoted to set the pace for the future:-

"In such a situation, it is difficult to ascertain whether the opinion of Krishna Iyer J. given on his own behalf and on behalf of Bhagwati and Desai JJ., can be held to be an authoritative precedent which would require no reconsideration even though the judges themselves expressed the view that the exercise of interpretation done by each one of them was tentative and was only a temporary exercise till the legislature stepped in. The legislature subsequently amended the definition of the word ''industry'' but due to the lack of will both on the part of the Legislature and the Executive, the amended definition, for a long period of 23 years, has remained dormant."

The other:-

"We also wish to enter a caveat on confining ''sovereign functions'' to the traditional so described as ''inalienable functions'' comparable to those performed by a monarch, a ruler or a non-democratic government. The learned judges in the Bangalore Water Supply and Sewerage Board case seem to have confined only such sovereign functions outside the purview of ''industry'' which can be termed strictly as constitutional functions of the three wings of the State i.e. executive, legislature and judiciary. The concept of sovereignty in a constitutional democracy is different from the traditional concept of sovereignty which is confined to ''law and order'', ''defence'', ''law making'' and ''justice dispensation''. In a democracy governed by the Constitution the sovereignty vests in the people and the State is obliged to discharge its constitutional obligations contained in the Directive Principles of the State Policy in Part-IV of the Constitution of India. From that point of view, wherever the government undertakes public welfare activities in discharge of its constitutional obligations, as provided in part-IV of the Constitution, such activities should be treated as activities in discharge of sovereign functions falling outside the purview of ''industry''. Whether employees employed in such welfare activities of the government require protection, apart from the constitutional rights conferred on them, may be a subject of separate legislation but for that reason, such governmental activities cannot be brought within the fold of industrial law by giving an undue expansive and wide meaning to the words used in the definition of industry."

However, there is no interim order for guidance meanwhile pending reference to larger Bench. Therefore, reliance could not have been blindly placed by the labour court solely on the basis of the ruling of this Court in the presence of a contrary opinion expressed by the three judge Bench of the Supreme Court in Jagannath Maruti Khondare, notwithstanding reference to a larger Bench for judicial review of the entire canvas of section 2(j) of the Act. Presently, this Court cannot commit itself to any particular view since the matter is sub judice before the Supreme Court.

I have heard Mr. Amarjit Singh, learned counsel appearing for the petitioner and Mr. Vaibhav Sharma, DAG, Punjab for the respondent State.

In the affidavit by way of evidence of the petitioner, it was specifically pleaded that the termination was without notice or payment of compensation. The cross-examination by the State was not directed on payment of compensation at the time of termination in the adducing of evidence. In more than many words, the State frankly admitted in its pleadings that the petitioner was disengaged for lack of work in 2007 and it follows a priori that retrenchment compensation was not paid on the date of termination. Thus was violation of Section 25-F of the Act committed inherent in the pleadings and in the lack of evidence on the point. The short cross-examination of the workman recorded on October 07, 2011 is found at page 30 of the paper book. In the defendants'' evidence, onus of proof of employment has been shifted to the workman to prove whether he worked in 1997 and onwards. They pleaded in defence that if the workman had such evidence he may produce it. More specifically, it was deposed that as per record, the claimant had not worked in January 2007 at Nursery, Tarn Taran nor any payment was made in that month. It was not deposed that the workman was not paid wages prior thereto. The best evidence was withheld by the State after committing itself in the pleadings. In the facts of the present case the burden of proving service of an employee was on the management as all the records pertaining to the petitioner''s employment was available only with the department including the muster rolls. For this proposition regarding burden of proof reference can profitably be made to The State Bank of India Vs. Shri N. Sundara Money, . Besides, an admission is the best proof of fact.

In the cross-examination of MW-2 Sunil Kumar, Forest Guard it was deposed that the contents of the written statement were correct and based on record. It was specifically admitted so in para. 2 of the written statement where the management had admitted that the worker had served in the department Nursery in January 2007. The deposition was in sync with the pleadings in the written statement. MW-3 Jagtar Singh has taken the same stand in the witness box on the contents of the written statement stating that they were correct. When the written statement of the State is read in juxtaposition of the evidence of the management witnesses and the pleadings on record then it is a strange wonder how the court a quo could have ever recorded that what was really meant in the written statement was a plea of denial of facts pleaded in the statement of claim. This is the serious misadventure in the impugned award which can neither be ignored nor logically sustained by any stretch of imagination and such is the error writ large as is apparent on the face of the record. The entire foundation and superstructure of the award is so intrinsically defective that no reasonable person could endorse its supporting reasoning which is in complete misreading of the pleadings and the evidence on record. The labour court has used extra paint and gloss to draw a wholly new landscape by perverting the pleadings to find ways to deny relief to the claimant. For the foregoing reasons, the impugned award dated January 19, 2012 is found not sustainable in the eyes of law or on facts established on record and when examined from all possible angles the same cannot be left to stand. Therefore, the petition is accepted. A certiorari is issued quashing the impugned award. As a result, a mandamus is issued to the respondents to reinstate the petitioner to daily wage service with 50% back wages which are deemed just and appropriate in the circumstances as the judicial trend is not to award full wages automatically. This direction will however remain subject to final outcome of the pending reference to larger Bench of the Supreme Court in Jai Bir Singh case.