Naresh vs Presiding Officer,Industrial Tribunal-cum-Labour Court

G.S. Sandhawalia, J.—Challenge in the present writ petition is to the award dated 23.11.2012 (Annexure P3) passed by the Labour Court, Rohtak whereby the reference has been decided against the workman and he has not been held entitled to any relief.

A perusal of the claim statement of the workman would go on to show that he worked from 01.12.1982 to 29.10.2000 as Baildar on daily wage basis and details of having worked under various officers of the respondent-Department, was given. The case of the workman was that from 30.10.2000, he went for duty time and again but he was not taken back and therefore, there was violation of the mandatory provisions of the Industrial Disputes Act, 1947 (for short, the ''Act''). It was also pleaded that junior workman, namely Narender, Raju, Maman, Krishan and Anand Singh, had been taken on duty whereas the petitioner had been discriminated against. The respondent-Department filed large number of objections and took the plea that the demand notice was being served after more than 3 years of the alleged termination and held that record of attendance of the daily wager was weeded out by the Divisional Forest Officer after 3 years by virtue of Rule 15.24 of Haryana Forest Manual and therefore, it had become common tendency amongst daily wagers to send a demand notice after the lapse of 3 years. It was admitted that the workman had worked from 1985 to February, 1995 but with heavy breaks and it was alleged that in May, 1985, he had worked for 30 days and for 21 days in the month of September, 1985. Similarly, for February, 1987, he had worked for 24 days and for April, 1987, he had worked for 17 days and for July, 1994, the petitioner had worked for 31 days. He had also worked for 18 days in September, 1994 and for 31 days in October, 1994 and lastly, for 28 days in February, 1995. It was the case of the Department categorically that he left the job in February, 1995 and never came back and neither had made any request/representation for re-engagement to the competent authority. The factum of the junior persons working with the respondent-Department was also denied and it was alleged that there was no violation of the mandatory provisions of the Act.

After examining the statement of the workman as WW1 and WW2, Naresh Kumar, Forester, who had been summoned as witness of the petitioner-workman, the Labour Court also took into consideration the statement of MW1, Shamsher Singh, Range Forest Officer and MW2, Ishwar Singh, Forest Guard. The Labour Court came to the opinion that the submission of the authorized representative that the entire record had not been produced and therefore, an adverse inference should have been drawn against the respondent-Department was rejected and it was held that the onus was upon the workman to prove that he had worked for 240 days, preceding his termination of service, in the last calendar year and merely the statement was not sufficient to prove the said fact. The statement of the workman that the persons junior to him were employed, was rejected since the date of appointment was not mentioned and therefore, nothing could be proved that they were his juniors and therefore, Section 25G was not attracted.

Counsel for the petitioner has, thus, vehemently submitted that the petitioner had worked for 18 years with the Department and therefore, the Labour Court was not justified in rejecting the case of the petitioner. Reliance was placed upon the statement of Naresh Kumar to submit that the workman had joined in 1985 and juniors were still in service. Reliance is also placed upon the judgment of this Court in CWP No. 19837 of 2012 titled Smt. Maya Devi Vs. Industrial Tribunal-cum-Labour Court, Rohtak, decided on 27.03.2012 to contend that the benefit of reinstatement should be granted.

It is settled principle of law that before the petitioner can claim the violation of Section 25F, it was for him to prove that he had actually worked for 240 days, preceding his date of termination of service, as prescribed u/s 25B & 25F of the Act. It is categorical case of the Department in the present case that petitioner-workman had worked from the year 1985 to 1995 and there were heavy breaks and details of his service were given. It was mentioned that in the month of February, 1995, he had only worked for 28 days. It was denied that he had worked for 240 days preceding the date of his termination of service. So, if one goes backwards from February, 1995, it transpires that the workman had only worked for 31 days in October, 1994, 18 days in September, 1994 and 17 days in July, 1994 and thus, did not complete the mandatory period of 240 days. In such circumstances, there was no necessity to comply with the mandatory provisions of Section 25F of the Act.

The workman summoned the records from Naresh Kumar, Forester, who had brought the record of the months mentioned whereby the workman had worked and did not produce the muster rolls of other months. Accordingly, he was asked to produce the same from April, 1995 to October, 2000 and also the records of Devender and Anand Singh. He deposed that he had received summons for producing the record from 1982 to 1987 and from 1997 to 2000 and not from 1982 to 2000. He further deposed that he produced all the muster rolls relating to the applicant as to for how many days he had worked and that the applicant did not complete 240 days. Similarly, even the cross-examination of Shamsher Singh, MW1 and Ishwar Singh, MW2 would go on to show that they had produced the relevant record preceding the termination of service of the workman, as per the case of the Department and there were never any direction from the Court to produce any record for the year preceding the year 2000. Apart from the bare testimony of the petitioner-workman, there was nothing to show that there was any material before the Court to show that the workman had worked for 240 days preceding the last year of his alleged termination of service and therefore, the factual finding of the Labour Court cannot be held to be, in any manner, wrong or illegal.

The submission that the juniors were still working and therefore, he was entitled to the benefit u/s 25G of the Act, is not acceptable since it is the case of the respondent-Department that the workman stopped coming after March, 1995 and the demand was raised only in the year 2002, i.e., after a period of 7 years. In the facts and circumstances of the present case, for the petitioner to submit that persons appointed after him were deployed to the workforce and therefore, there is violation of Section 25G of the Act, would not be tenable. The workman has not examined any independent witness to state that he was working till the year 2000 and has stated that some persons have been employed by the Department after him and in such circumstances, an adverse inference has rightly been drawn against him that he had not worked for 240 days from the year 1982 and had only worked till the year 1995 and thus, no benefit can be granted to the workman on the ground that some persons have been appointed after his termination of service since it is apparent that he himself had left the job and stopped reporting for duty and after such a long delay, he is not liable to be reinstated. The Apex Court in The Nedungadi Bank Ltd. Vs. K.P. Madhavankutty and Others, has specifically held that where an industrial dispute is raised at a belated stage, it cannot be termed as an industrial dispute which can be referred and in the said case, the reference, which was made by the appropriate Government, was quashed. Relevant observations read as under:

Law does not prescribe any time limit for the appropriate government to exercise its powers u/s 10 of the Act. It is not that this power can be exercised at any point of time and to revive matters which had since been settled. Power is to be exercised reasonably and in a rational manner. There appears to us to be no rational basis on which the Central Government has exercised powers in this case after lapse of about seven years of order dismissing the respondent from service. At the time reference was made no industrial dispute existed or could be even said to have been apprehended. A dispute which is stale could not be the subject-matter of reference u/s 10 of the Act. As to when a dispute can be said to be stale would depend on the facts and circumstances of each case. When the matter has become final, it appears to us to be rather incongruous that the reference be made u/s 10 of the Act in the circumstances like the present one. In fact it could be said that there was no dispute pending at the time When the reference in question was made. The only ground advanced by the respondent was that two other employees who were dismissed from service were reinstated. Under what circumstances they were dismissed and subsequently reinstated is nowhere mentioned. Demand raised by the respondent for raising industrial dispute was ex facie bad and incompetent.

In the present appeal it is not the case of the respondent that the disciplinary proceedings, which resulted in his dismissal, were in any way illegal or there was even any irregularity. He availed his remedy of appeal under the rules governing his conditions of service. It could not be said that in the circumstances industrial dispute did arise or was even apprehended after lapse of about seven years of the dismissal of the respondent. Whenever a workman raises some dispute it does not become industrial dispute and appropriate government cannot in a mechanical fashion make the reference of the alleged dispute terming as industrial dispute. Central Government lacked power to make reference both on the ground of delay in invoking the power u/s 10 of the Act and there being no industrial dispute existing or even apprehended. The purpose of reference is to keep industrial peace in an establishment. The present reference is destructive to the industrial peace and defeats the very object and purpose of the Act. Bank was justified in thus moving the High Court seeking an order to quash the reference in question.

Recently in Assistant Engineer, Rajasthan State Agriculture Marketing Board, Sub-Division, Kota Vs. Mohan Lal, a similar issue came up before the Apex Court wherein the workman whose services were terminated in 1986, raised an industrial dispute in 1992 and was directed to be reinstated with 30% back wages. The said award was set aside by the Single Bench of the High Court and substituted by compensation on account of delay. The Division Bench restored the award passed by the Labour Court, keeping in view the observations made in Ajaib Singh Vs. The Sirhind Co-Operative Marketing Cum-Processing Service Society Limited and Another, The order of the Division Bench was set aside by the Apex Court by holding that delay is a major factor which is to be taken into consideration while directing reinstatement and the relief has to be moulded accordingly. It was held that though there is no limitation provided but this important circumstance has to be kept in mind. The compensation amount was, however, enhanced. Relevant observations read as under:

We are clearly of the view that though Limitation Act, 1963 is not applicable to the reference made under the I.D. Act but delay in raising industrial dispute is definitely an important circumstance which the Labour Court must keep in view at the time of exercise of discretion irrespective of whether or not such objection has been raised by the other side. The legal position laid down by this Court in Gitam Singh (supra) that before exercising its judicial discretion, the Labour Court has to keep in view all relevant factors including the mode and manner of appointment, nature of employment, length of service, the ground on which termination has been set aside and the delay in raising industrial dispute before grant of relief in an industrial dispute, must be invariably followed.

Now, if the facts of the present case are seen, the position that emerges is this: the workman worked as a work charged employee for a period from 01.11.1984 to 17.02.1986 (in all he worked for 286 days during his employment). The services of the workman were terminated with effect from 18.02.1986. The workman raised the industrial dispute in 1992, i.e., after 6 years of termination. The Labour Court did not keep in view admitted delay of 6 years in raising the industrial dispute by the workman. The judicial discretion exercised by the Labour Court is, thus, flawed and unsustainable. The Division Bench of the High Court was clearly in error in restoring the award of the Labour Court whereby reinstatement was granted to the workman. Though, the compensation awarded by the Single Judge was too low and needed to be enhanced by the Division Bench but surely reinstatement of the workman in the facts and circumstances is not the appropriate relief.

In our opinion, interest of justice will be subserved if in lieu of reinstatement, the compensation of Rs. 1,00,000/- (one lac) is paid by the appellant (employer) to the respondent (workman). We order accordingly. Such payment shall be made by the appellant to the respondent within six weeks from today failing which the same will carry interest @ 9% per annum.

The appeal is partly allowed to the above extent with no order as to costs.

Reliance upon Smt. Mava Devi (supra) is also without any basis since in the said case, the workman has been granted compensation of Rs. 30,000/- as she had worked from 1981 to 2000. This Court had held that the said workwoman was entitled for reinstatement along with full back wages, from the date of the demand notice and therefore, the workwoman, in the said case, was able to prove the fact of violation of Section 25F of the Act and having worked more than 240 days. In the present case, it is not so and therefore, there can be no interference in the well reasoned award passed by the Labour Court.

Accordingly, finding no merit in the present writ petition, the same is hereby dismissed.