Haryana Seeds Development v. The Presiding Officer, Labour Court, Panipat

CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.Vishal Gupta, Advocate, for the petitioner. Mr.A.K.Bura, Advocate for the respondents. *** AUGUSTINE GEORGE MASIH, J. (Oral) By this order, I propose to dispose of C.W.P.Nos.11623 of 1996 titled as Haryana Seeds Development Corporation Ltd. vs. Presiding Officer, Labour Court, Panipat and another and C.W.P.No.12114 of 1996 Haryana Seeds Development Corporation Ltd. vs. Presiding Officer, Labour Court, Panipat and another. Counsel for the parties agree that common questions of fact and law are involved in the present writ petitions and the challenge is also to the same award dated

23.12.1994 (Annexure P-1) passed by the Industrial Tribunal-cum-Labour Court, Panipat. For the sake of convenience, the facts are being taken from C.W.P.No.11623 of 1996. Workman-respondent No.2-Birender Singh was appointed as a C.W.P.No.11623 of 1996 -2- Salesman on 23.9.1986. He continued to work with the petitioner- Management with some breaks therein till 25.1.1988 when when his services were terminated. He preferred a demand notice and when the conciliation proceedings failed, the matter was referred to the Industrial Tribunal-cum-Labour Court, Panipat, for adjudication of the dispute. On the basis of the pleadings and the evidence led by the parties, the Labour Court came to the conclusion that the respondent-workman had completed more than 240 days in service in the 12 preceding months from the date of his termination and further that the persons junior to respondent-workman Birender Singh were retained in service while terminating the services of the workman and, therefore, the provisions of Section 25-G of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) stood violated. On the basis of the findings so recorded, the Labour Court directed reinstatement of the respondent-workman with full back wages. Counsel for the petitioner contends that the services of the respondent-workman were engaged on 89 days' basis and on each time, fresh appointment was given to the respondent-workman with some breaks therein. He contends that the respondent-workman with the said breaks continued to work with the petitioner-Management from 23.9.1986 to

25.1.1988 when his services were retrenched because of the closure of the some of the undertaking for which one month's pay was given to all retrenched employees in lieu of notice besides retrenchment compensation having been paid to them. He, on this basis, contends that even if it is taken that the workman had completed more than 240 days in service in the 12 preceding months, then also in view of compliance of the provisions of Section 25-F of the Act, the respondent-workman would not be entitled to C.W.P.No.11623 of 1996 -3- any benefit. His further contention is that no person junior to the respondent-workman was retained in service and the findings of the Labour Court on this count also cannot be sustained. On the other hand, counsel for the respondent-workman contends that although the appointment of the respondent-workman was on 89 days' basis but he continuously worked with the respondents and a finding has been returned by the Labour Court that the workman had completed more than 240 days in service in the 12 preceding months from the date of termination of his services. His further contention is that the respondent-workman, even if treated to have been retrenched from service, the principle of last come first go should have been adhered to for retrenching the employees by the petitioner-Management. In the present case, Rajinder Kumar and Om Singh, who were appointed subsequent to the appointment of the workman, have been retained in service whereas the workman had been retrenched. He, on this basis, contends that since the provisions of Section 25-G of the Act have been violated, the findings as recorded by the Labour Court are in accordance with law being based upon the evidence on record and, therefore, the Award deserves to be upheld. To this contention as raised by counsel for the respondent-workman, counsel for the petitioner has clarified that Rajinder Kumar and Om Singh were also retrenched along with the respondent-workman but subsequently they have been re-employed in service. He although refers to Annexures P-14 and P- 15 in this regard, however, he is unable to explain as to why the said offer was not given to the respondent-workman who was senior to the persons referred to above. I have heard counsel for the parties and have gone through the C.W.P.No.11623 of 1996 -4- records of the case. During the course of hearing, this Court vide order dated 16.12.1996 had directed the petitioner-Management to prepare the seniority afresh keeping in view the dates of initial appointments, though on 89 days', of the persons mentioned in Annexure P-7 i.e. the seniority list maintained by the Management by ignoring the breaks in service upto 30 days. In compliance of the order passed by this Court, referred to above, fresh seniority list has been prepared by the petitioner-Management, according to which the initial date of appointment of Rajinder Kumar was

10.10.1985, Om Singh that of 6.11.1986, respondent-workman-Birender Singh as 29.9.1986 and the respondent-workman-Rishi Pal Singh in C.W.P.No.12114 of 1996 as 7.10.1985. In view of the seniority list which has been now prepared by the petitioner-Management, there is no manner of doubt that the persons junior to the respondent-workman were re-employed by it while no such offer was made to the respondent-workman, thereby violating the provisions of Section 25-H of the Act. In view of this factual aspect, the contention as raised by the counsel for the petitioner cannot be sustained. Accordingly, the Award passed by the Labour Court calls for no interference by this Court. Counsel for the petitioner-Management, at this stage, submits that the respondent-workman has been granted full back wages. He contends that there is nothing on record to suggest that the respondent- workman was not employed after he was retrenched. To this contention raised by the counsel for the petitioner, counsel for the respondent-workman is unable to rebut the contention as raised by the counsel for the petitioner. In view of the fact that the respondent-workmen (in both the writ petitions) would not have been able to sustain themselves without they C.W.P.No.11623 of 1996 -5- having worked, the grant of full back wages in the present case would not be justified and accordingly, the same is reduced to 50% of the back wages. Accordingly, the Award passed by the Labour Court is modified to the extent that the respondent-workmen (in both the writ petitions) would be entitled to reinstatement in service with continuity thereof with 50% back wages. Initially the operation of the Award was stayed by this Court and, therefore, a direction is issued to the petitioner-Management to release the back wages to the respondent-workmen ( in both the writ petitions) within a period of two months from the date they report for duty. Both the writ petitions stand disposed of accordingly. May 28, 2010 poonam ( AUGUSTINE GEORGE MASIH ) JUDGE Whether referred to Reporters Yes/No.