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Friday, January 16, 2015

CIVIL APPEAL NO. 346 OF 2015 (Arising out of S.L.P. (C) No. 1532 of 2014) JASMER SINGH ... APPELLANT VERSUS STATE OF HARYANA & ANR. ...RESPONDENTS

                                                              NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 346 OF 2015
                (Arising out of S.L.P. (C) No. 1532 of 2014)


JASMER SINGH                         ... APPELLANT

                                   VERSUS

STATE OF HARYANA & ANR.          ...RESPONDENTS



                               J U D G M E N T


V. GOPALA GOWDA, J.


      Leave granted.

This appeal is filed by the workman, aggrieved by the impugned judgment  and
order of the Punjab and Haryana High Court in L.P.A. No. 2245 of 2011  (O  &
M) dated 19.09.2013 affirming the judgment and order of the  learned  Single
Judge dated 7.04.2010 passed in C.W.P. No.  9532  of  2001  by  which  Award
dated 27.07.2000 of the Industrial Tribunal-cum-Labour  Court,  Panipat,  in
Reference No. 205 of 1997 is set aside, raising  certain  questions  of  law
and urging various legal grounds in support of the same.

In nutshell, facts are stated for the purpose of  finding  out  whether  the
impugned judgment and order of the Division Bench warrants  interference  by
this Court in this appeal.

The appellant-workman was working as daily paid worker in the office of  Sub
Divisional Officer/Engineer, Provincial Division No. 3, PWD  B  &  R  Karnal
since  1.1.1993  and  remained  in  service  upto  December,  1993.  He  had
completed more than 240 days of continuous service  in  one  calendar  year.
His services were  terminated  on  31.12.1993  without  complying  with  the
mandatory provisions of Sections 25-F,  25-G  and  25-H  of  the  Industrial
Disputes Act, 1947 (hereinafter referred to as "the Act").  The  respondent-
management  neither  issued  notice  nor   notice   pay   nor   retrenchment
compensation was given to him. The principle of 'last  come  first  go'  was
not followed as provided under Section 25G of the Act and  the  persons  who
were juniors to him in service were retained. Therefore, he  has  raised  an
industrial dispute under the provisions of the Act before  the  Conciliation
Officer requesting for setting aside the order of termination  as  the  same
is void ab initio in law and sought an order  for  reinstatement  with  back
wages and other consequential benefits. As the workman's demand made in  his
Notice dated 27.11.1996 was not  complied  with,  the  Conciliation  Officer
submitted a failure report to the State Government  of  Haryana.  The  State
Government of Haryana in exercise  of  its  statutory  power  under  Section
10(1)(c) of the Act  referred  the  industrial  dispute  to  the  Industrial
Tribunal-cum- Labour Court for adjudication as per the  points  of  dispute.
The same was registered as Case Reference No. 205 of 1997  for  adjudication
of the dispute.

The Industrial Tribunal-cum-Labour Court  answered  the  points  of  dispute
referred to it. Both the parties filed  their  respective  statements  inter
alia justifying their demand and order of  termination  passed  against  the
workman.  The  respondent-management  has   taken   preliminary   objections
contending that Reference is  bad  in  law  as  necessary  parties  are  not
impleaded to the order  of  reference,   namely,  Sub  Divisional  Engineer,
Province Sub Division No.8, PWD (B & R) Karnal, the claim of the workman  is
time barred and the  provisions  of  the  Act  are  not  applicable  to  the
respondent-employer. Further, the appellant  was  employed  on  daily  wages
muster roll by the Divisional Engineer, Provincial Sub-Division No.  8,  PWD
(B & R), Karnal, in the month of January, 1993 and he left the  job  on  his
own accord in August, 1993 and he has not completed 240  days  in  that  Sub
Division. It was further pleaded by the respondent-employer that some  other
daily wage  workmen  who  were  working  along  with  him  in  August,  1993
continued to work in September, 1993 as well and  if  the  workman  attended
the duty in September, 1993 there is no reason not to employ him along  with
others. Further, it was pleaded that in October, 1993 the appellant went  to
another Sub-Divisional Officer where some other work was going  on  and  got
himself employed there afresh and  worked  up  to  December,  1993  in  Sub-
division No.6 and again he left the job voluntarily  during  December,  1993
and therefore, termination order was not passed by respondent-employer.  The
number of working days of the workman as  given  in  the  written  statement
that he did not complete 240 days in any calendar  year  and  as  such,  the
provisions of Section 25-F clauses (a) & (b) of the Act  were  not  required
to be complied with. To the said written statement, a  reply  statement  was
filed by the workman.

On the basis of the pleadings made on behalf of  the  parties,  five  Issues
were framed and the witness Mr. Vipin  Sharma  on  behalf  of  the  employer
along with the workman was examined by himself  to  prove  their  respective
cases. The workman produced Ex 6 WX - Muster  Roll  of  September,  1993  to
prove his case that he worked for 240 days  in  a  calendar  year  with  the
respondent-employer and the  Industrial  Tribunal-cum-Labour  Court  on  the
basis of pleadings and evidence on record has recorded the finding  of  fact
and answered the issues framed by it in the Award in favour of  the  workman
after proper appreciation of evidence on record.  The  Industrial  Tribunal-
cum-Labour Court has recorded the finding of  fact  on  issue  No.  1  after
adverting to the  evidence  of  the  workman-WW1,  who  has  stated  in  his
statement of  evidence  that  he  had  been  appointed  in  the  respondent-
management on monthly pay of Rs.1240/-.

He has further stated that he has worked up to 31.12.1993  and  showed  that
he has worked for more than 310 days both in Sub Division Nos. 8 and  6.  He
has produced the Muster Roll  in  support  of  his  contention  and  further
stated that the Executive Engineer of both the Sub  Divisions  is  same.  He
has further stated that while terminating his service,  neither  notice  nor
notice pay in lieu of notice or retrenchment compensation was given to  him.
He has further produced the photocopy of the Muster  Roll  Exh.  WX  showing
that he worked for 22 days during the month of September,  1993.  Therefore,
the total number of days worked in a calendar  year,  as  indicated  in  the
written statement filed by the respondent-employer at para 2, if taken  into
consideration then it will be more than 240 days the workman has  worked  in
the  establishment  of  the  respondent-employer.  The  genuineness  of  the
document is not  questioned  by  the  respondent's  counsel  in  the  cross-
examination of WW-1, therefore, the same  is  accepted  and  held  that  the
workman has worked for more than 240 days during a calendar  year  preceding
the date of his termination from the  services.  Undisputedly,  retrenchment
compensation was not given by  the  respondent-employer   to  the  appellant
contending that he is not entitled for the same, as he has  not  worked  for
240 days, and therefore, the question of  giving  retrenchment  compensation
does  not  arise.  The  Industrial  Tribunal-cum-Labour   Court   has   also
considered the evidence of MW 1 - Vipin Sharma, SDO, who had stated  in  his
evidence that the appellant-workman had worked in their Sub-Division  No.  8
from January, 1993 to August, 1993 and had left the work  in  the  month  of
September, 1993. He further stated that  from  October,  1993  to  December,
1993 he had worked in some other  Division,  which  does  not  fall  in  the
National Highway Division.  To  this  effect,  no  documentary  evidence  is
produced. On the other hand, the evidence produced by  him  proves  that  he
has worked during the month of September, 1993 with the  respondent-employer
which would clearly go to show that he has worked for more than 240 days  in
the Sub Division and further, the said witness  of  the  respondent-employer
has stated that administrative  control  of  Sub  Division  No.  6  and  Sub
Division No. 8 is under the different Executive Engineer. He further  stated
that construction of National Highways and its maintenance work is given  by
the Ministry of Surface of India. After adverting to the  said  evidence  of
MW-1 and the plea taken by the respondent-employer in the written  statement
that the appellant-workman has left the job voluntarily,  therefore,  he  is
not entitled for the benefit of Section 25-F clauses  (a)  and  (b)  of  the
Act, is rightly rejected by the Industrial Tribunal-cum-Labour  Court  after
placing reliance upon Civil Writ Petition No. 2375 of 1997  titled  "Rajpati
vs. HUDA" in which the High Court has observed that  Executive  Engineer  is
the appointing and terminating authority of the workmen  in  both  the  Sub-
Divisions. Therefore, the Industrial Tribunal-cum-Labour Court  has  rightly
recorded a finding of fact on the basis of evidence on record  stating  that
the contention urged on behalf of the respondent-employer that  the  workman
has worked in two different Sub Divisions is immaterial for the reason  that
the XEN of both the Sub Divisions is the same. Therefore, the issue No.1  is
rightly  decided  in  favour  of  the  appellant-workman  and  against   the
respondent-employer.

Further, the evidence of Executive Engineer is considered, who  deposed   in
his evidence that he has worked  as  Sewadar  with  the  respondent-employer
from January, 1993 to December, 1993 and total number of working days  in  a
calendar year are shown as  310,  the  said  evidence  was  considered  with
reference to the Muster Roll Exbs M-1 to M-8  produced  by  the  respondent-
employer and its written  statement,  wherein  the  respondent-employer  has
categorically stated that in Sub Division No.  8  Karnal,  the  workman  has
worked for 231 days and in  view  of  the  Muster  Roll  for  the  month  of
September, 1993, which is tendered by  the  workman  as  Exb.  WX,  who  has
worked for 22 days  during  that  month,  therefore,  the  total  number  of
working days in Sub Division No. 8 for the  period  from  January,  1993  to
September, 1993 and sub-Division No.6  would  be  253  days.  As  the  total
number of working days are more than 240 days,  therefore,  the  documentary
evidence produced by the workman is rightly relied upon by the Labour  Court
and that the workman has  rendered  more  than  240  days'  service  in  the
establishment of the respondent is established. Hence, it has  further  held
that the non-compliance of the provisions of Section 25-F  clauses  (a)  and
(b) of the Act i.e.  issuance of neither notice nor notice pay  and  payment
of retrenchment  compensation  to  the  appellant  are  not  complied  with,
therefore, the labour court has correctly held that the termination  of  the
services of the workman is illegal and  accordingly,  the  issue  No.  1  is
answered in favour of the workman and against the respondent-employer.

On issue No. 3, after adverting to the case of State of Punjab  v.  Kalidass
and Anr. in C.W.P. No. 1742 of 1996, wherein the  High  Court  has  observed
that the workman cannot be allowed to approach  the  Labour  Court  after  3
years of termination of his services, upon  which  reliance  placed  by  the
respondent-employer with reference to the said plea  the  Labour  Court  has
rightly placed reliance upon the judgment of this Court in Ajaib  Singh   v.
Sirhind  Co-operative  Marketing-cum-Processing  Service  Society  Ltd.  and
Anr.[1] in which it is observed by this Court that there  is  no  period  of
limitation to the proceedings in  the  Act.  Accordingly,  Issue  No.  3  is
answered against the  respondent-management.  The  relevant  paragraph  from
Ajaib Singh's case (supra) are extracted herein below:
"10. It follows,  therefore,  that  the  provisions  of  Article 137 of  the
Schedule to Limitation Act, 1963  are  not  applicable  to  the  proceedings
under the act and that the relief under it cannot be denied to  the  workman
merely on the ground of delay. The plea of delay if raised by  the  employer
is required to be proved as a matter of fact by showing the  real  prejudice
and not as a merely hypothetical defence. No reference to the  labour  court
can be generally questioned on the ground of delay alone.  Even  in  a  case
where the delay in shown to be  existing,  the  tribunal,  labour  court  or
board,  dealing  with  the  case  can  appropriately  mould  the  relief  by
declining to grant back wages to the workman till the  date  he  raised  the
demand regarding his illegal retrenchment/  termination  or  dismissal.  The
Court may also in appropriate cases direct the payment of part of  the  back
wages instead of full back wages....."


 On issue No. 4, after adverting to the judgment of the High  Court  in  the
case of State of Punjab v. Hari Dass[2],  in  which  it  is  held  that  the
Public Works Department (B & R) is an  industry  and  accordingly  the  said
issue was also answered against the respondent-management.

 Eventually, the Industrial Tribunal-cum-Labour Court has rightly set  aside
the  order  of  termination  passed  against   the   workman   and   awarded
reinstatement in his job with continuity of service and full back  wages  to
him.

 The said Award is challenged  by  the  respondent-employer  in  Civil  Writ
Petition No. 9532 of 2001 urging untenable contentions.  In  the  said  writ
petition,  the  High  Court  exercised  its  jurisdiction  contrary  to  the
judgment of this Court in the case of Syed Yakoob v.  K.S.  Radhakrishnan  &
Ors.[3] and also the  judgment,  which  was  referred  to  in  the  case  of
Harjinder Singh  v.  Punjab State Warehousing  Corporation[4].  The  learned
counsel for the appellant has aptly placed reliance  upon  another  judgment
of Anoop Sharma v.   Executive  Engineer,  Public  Health  Division    No.1,
Panipat (Haryana)[5] in support of  her  legal  submissions  that  both  the
learned Single Judge and the Division Bench of the High Court have erred  in
exercising their supervisory power under Article 227 of the Constitution  of
India in setting aside the finding of fact recorded on the  facts  based  on
the pleadings and evidence on record.

   Further in the case  of  Harjinder  Singh  v.  Punjab  State  Warehousing
Corporation (supra), wherein this Court opined on the exercise of  power  by
the High Court under Article 227 of the Constitution of India as under:-

"21. Before concluding, we consider  it  necessary  to  observe  that  while
exercising jurisdiction under Articles 226 and/or 227  of  the  Constitution
in matters like the present one, the High Courts are duty bound to  keep  in
mind  that  the  Industrial  Disputes  Act  and  other  similar  legislative
instruments are social welfare legislations and the same are required to  be
interpreted keeping in view the  goals  set  out  in  the  preamble  of  the
Constitution and the provisions contained in Part IV thereof in general  and
Articles 38, 39(a) to (e), 43 and 43A in particular, which mandate that  the
State should secure a social order for  the  promotion  of  welfare  of  the
people, ensure equality between men and women and equitable distribution  of
material resources of the community to sub-serve the common  good  and  also
ensure  that  the  workers  get  their  dues.  More  than  41   years   ago,
Gajendragadkar, J, opined that:-
"the concept  of  social  and  economic  justice  is  a  living  concept  of
revolutionary import; it gives sustenance to the rule  of  law  and  meaning
and significance to the  ideal  of  welfare  State"  - State  of  Mysore  v.
Workers of Gold Mines AIR 1958 SC 923."


13. In view of the aforesaid statement of  law  the  setting  aside  of  the
Award by the learned Single Judge which is affirmed by  the  Division  Bench
is vitiated in law as the same is contrary to the judgments  of  this  Court
referred to supra, upon which the learned  counsel  for  the  appellant  has
rightly placed reliance  in  support  of  the  correctness  of  the  finding
recorded by the  labour  court  on  the  various  issues,  particularly  the
finding of fact that the workman has worked for more  than  240  days  in  a
calendar year and termination order is  void  ab  initio  in  law  for  non-
compliance of Sections 25-F (clauses (a) and (b)),  25-G  and  25-H  of  the
Act, therefore, the Industrial Tribunal-cum-Labour  Court  has  rightly  set
aside the order of termination of services of the workman  and  awarded  the
order of reinstatement with continuity of service and full back  wages.  The
said relief in favour of the appellant-workman, particularly the  full  back
wages is supported by the legal principles laid down by this  Court  in  the
case of Deepali Gundu Surwase  v. Kranti Junior Adhyapak  Mahavidyalaya  (D.
ED.) & Ors.[6], wherein the Division Bench of this Court to which one of  us
was a member, after considering three-Judge Bench decision,  has  held  that
if the order of termination is void ab initio, the workman  is  entitled  to
full back wages. The relevant para of the decision is extracted hereunder:-

"22. The very idea of restoring an employee to the position  which  he  held
before dismissal or removal or  termination  of  service  implies  that  the
employee will be put in the same position in which he would  have  been  but
for the illegal action taken by the  employer.  The  injury  suffered  by  a
person, who is dismissed or removed or is otherwise terminated from  service
cannot easily be measured in terms of money. With the passing  of  an  order
which has the effect of severing the  employer  employee  relationship,  the
latter's source of income gets dried up. Not only  the  concerned  employee,
but his entire family suffers grave adversities. They are  deprived  of  the
source of sustenance. The children are deprived of nutritious food  and  all
opportunities of education and advancement in life.  At  times,  the  family
has  to  borrow  from  the  relatives  and  other  acquaintance   to   avoid
starvation. These sufferings continue till the competent adjudicatory  forum
decides  on  the  legality  of  the  action  taken  by  the  employer.   The
reinstatement of such an employee, which is preceded by  a  finding  of  the
competent judicial/quasi judicial body or Court that  the  action  taken  by
the  employer  is ultra  vires the  relevant  statutory  provisions  or  the
principles of natural justice, entitles the  employee  to  claim  full  back
wages. If the employer wants to deny back wages to the employee  or  contest
his entitlement to get consequential benefits, then it  is  for  him/her  to
specifically  plead  and  prove  that  during  the  intervening  period  the
employee was gainfully employed and was getting the same emoluments.  Denial
of back wages to an employee, who has suffered due to an illegal act of  the
employer would amount to indirectly punishing  the  concerned  employee  and
rewarding the employer by relieving him of the obligation to pay back  wages
including the emoluments."


      In the circumstances, the appeal is  allowed,  the  judgment  &  order
passed by the  learned  Single  Judge  in  C.W.P.  No.  9532/2001  which  is
affirmed by the Division Bench of the High Court in L.P.A. No. 2245/2011  in
its judgment and order are  set  aside  and  the  Award  of  the  Industrial
Tribunal-cum-Labour Court is restored. The respondent-employer  is  directed
to comply with the Award within six weeks from the  date  of  receipt  of  a
copy of this order and send a report to this Court. The  appeal  is  allowed
with cost of Rs.25,000/- payable to the appellant-workman by the  respondent
employer.


           ...............................................................J.
                                  [V.GOPALA GOWDA]




           ...............................................................J.
                                  [C.NAGAPPAN]


NEW DELHI,
JANUARY 13, 2015
-----------------------
[1]    (1999) 6 SCC 82
[2]    (1999) 2 RSJ 266
[3]    (1964) 5 SCR 64
[4]    (2010) 3 SCC 192
[5]    (2010) 5 SCC 497
[6]    (2013) 10 SCC 324

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