Dev Chand v. Presiding Officer, Industrial Tribunal-cum-Labour Court-II, Gurgaon & Ors.

On the other hand, counsel for the respondents submits that the findings recorded by the Labour Court cannot be faulted with. It was not the case of the petitioner-workman that his initial appointment was as per the statutory Rules governing the service. The principles, therefore, as laid down by the Hon'ble Supreme Court in its various judgments which have been referred to by the Labour Court in its Award, are fully applicable to the present case and the findings and the observations made by the Labour Court are fully justified which do not call for any interference by this Court. He disputes the claim of wages made by the petitioner in the present writ petition on the basis of the reply filed by the respondents to the writ petition, wherein it has been stated that the petitioner had not worked for the period, for which he is claiming wages. I have heard the counsel for the parties and have gone through the records of the case. The proposition that if there is no pleading or raising of a contention, there is no question of substantiating such non-existing contention by evidence, the assertion, which is not pleaded, even if there is evidence to support it, cannot be examined because the other side has no notice of it and if entertained, it would tantamount to giving advantage to one of the parties, cannot be disputed. The rules of fair play demand that a party seeking to establish a contention, which, if proved, would be sufficient to deny relief to the opposite side, is required to be specifically pleaded and then proved also cannot be disputed with as, if there is no pleading, there is no question of proving something, which is not pleaded CWP No. 7568 of 2008 8 provided both the parties are aware of that position and despite the absence of pleadings both the parties have led evidence on that point and had contested that. Keeping this principle in mind, the contention, as raised by the counsel for the petitioner that nothing has been pleaded or brought on record showing or proving that the appointment of the petitioner was not in consonance with the statutory Rules or in accordance with law on behalf of the respondents, the findings given by the Labour Court to that effect cannot be sustained, is fully justified. The principles, as laid down by the Hon'ble Supreme Court in the case of Harjinder Singh's case (supra), when applied, would lead to the conclusion that in the present case, the defence of the respondents was struck off due to their non-filing of the written statement to the claim statement made by the workman before the Labour Court and that order had attained finality as the same was not challenged by the respondents. In the absence of any pleadings or evidence, the findings, as recorded by the Labour Court with regard to the appointment of the petitioner-workman being not in consonance with law, therefore, denying him the claim of reinstatement, cannot be sustained and the findings, so recorded, by the Labour Court deserve to be set aside. Now the question arises whether there was any victimization or unfair labour practice on the part of the respondents. It is an admitted position that the petitioner was working under a project and was working on daily wage basis. Initially as per his own claim statement, the petitioner was appointed as a Chowkidar on 01.09.1993. He continued as such till CWP No. 7568 of 2008 9 September, 1995 when his services were terminated in October, 1995. He was put back in service from November, 1995 on a representation made by the Gram Panchayat and the Village Forest Protection Committee. He continued as such till July, 1996 when his services were terminated. This is the first span of his work with the respondents. He was thereafter appointed as a Parcharak w.e.f. 01.04.1997 vide order dated 21.02.1997 (Annexure P- 3) issued by the Divisional Forest Officer, Aravali Project, Charkhi Dadri- respondent No. 3. It would not be out of way to mention here that it was a totally different appointment wherein the petitioner was assigned to do the work of promotion regarding Aravali Project and Environment in the villages of Nawan, Dhigroti, Nagalmala, Madhogarh, Mandhola etc. He was to be paid Rs. 100/- per day as wages. This was the second assignment granted to the petitioner which had no connection with his earlier appointment as Chowkidar where the work and responsibility was totally different and even the wages were different because as per the petitioner himself, initially the wages given to him were Rs. 40/- per day, which were subsequently enhanced to Rs. 45/- per day from July, 1995 and later increased to Rs. 73/- per day. This would go beyond doubt to show that it was a totally new assignment given to the petitioner, which was duly accepted by the petitioner and the reason for that is obvious that the petitioner was a Graduate and initially was working as a Chowkidar at lower wages and was now given a higher responsibility with higher wages. The petitioner worked from 01.04.1997 to 30.09.1997. This is as per the claim statement submitted by the petitioner before the Labour Court as also his oral evidence and affidavit submitted in the Labour Court. CWP No. 7568 of 2008 10 Thus, for coming to a conclusion as to whether the petitioner would be entitled to the benefit of Section 25-F of the Act or not, the service rendered by the petitioner as Parcharak will have to be taken into consideration. Even if the assertion as made by the counsel for the petitioner, is taken to be correct that he had worked from 01.04.1997 till

30.09.1997, the total period comes to six months, which is well short of the required period of 240 days under Section 25-B of the Act to grant him protection under Section 25-F of the Act. The result thereof is that the termination of the service of the workman cannot be said to be in violation of the provisions of the Act entitling him the benefit of reinstatement in service. The earlier period of service rendered by the petitioner cannot be taken into consideration as it was as a Chowkidar and not as a Parcharak. Even as a Chowkidar, as per his own statement, his services were terminated in August, 1996, so the workman has not completed 240 days in service in 12 preceding months from the date of his termination. In view of the above, it cannot be said that there was any victimization or use of unfair labour practice by the Management. As regards the claim of the petitioner that he is entitled to the wages, which have not been paid to him, the said fact has not been controverted by the Management before the Labour Court as no written statement was filed, because of which their defence was struck off. It was the claim of the petitioner that he was not paid the wages for August and September, 1995 and November, 1995 to July, 1996 @ Rs. 45/- per day as Chowkidar and March, 1997 to September, 1997 @ Rs. 100/- per day as CWP No. 7568 of 2008 11 Parcharak. Since the evidence led by the petitioner proves that the petitioner was not paid the amount of wages for the period mentioned herein above, which fact could not be disputed by the respondents before the Labour Court, the said claim deserves to be allowed. The petitioner is, thus, held entitled to the wages for August and September, 1995 and November, 1995 to July, 1996 @ Rs. 45/- per day as Chowkidar and March, 1997 to September, 1997 @ Rs. 100/- per day as Parcharak. The petition stands disposed of accordingly. February 15, 2010 (AUGUSTINE GEORGE MASIH ) JUDGE