Posted On by &filed under High Court, Punjab-Haryana High Court.


Punjab-Haryana High Court
Estate Officer, Haryana Urban … vs Presiding Officer on 8 November, 2000
Equivalent citations: 2001 (91) FLR 341, (2001) IILLJ 120 P H
Author: S Sudhalkar
Bench: S Sudhalkar, M S Gill


JUDGMENT

S.S. Sudhalkar, J.

1. This writ petition is filed by the employer challenging the award of the Labour Court dated 1.9.2000 (copy Annexure P/1) vide which respondent No. 2/workman was ordered to be reinstated in service with continuity of service and full back wages.

2. The workman was appointed in the year 1994 and be continued to work upto February, 1997. The first point argued by learned counsel for the petitioners is that there is no evidence to show that the workman had completed 240 days of service. The Labour Court has dealt with this matter in para No. 7 of the award and it has relied on the documents Mark A to Mark L which are copies of the Muster rolls. They are photo copies. Counsel for the petitioners argued that these are photocopies and not the original. However, the original documents are in the custody of the petitioners. It was for the petitioners to produce the best evidence available with them, which the petitioners have chosen not to do. When this is so, adverse inference has to be drawn against the petitioners in view of the Supreme Court Judgment in the ease of Gopal Krishnaji Ketkar v. Mohamed Haji Latif and others, AIR I96R SC 1413. Coupled with this, photo copies have been produced by the workmen himself, the management cannot lake the stand that photo copies cannot be exhibited when the originals of which can be produced by the petitioners. Therefore, we hold that the workman has completed 259 days.

3. The next argument of the learned counsel for the petitioner is that the appointment of the workman was for a particular period and after the period elapsed, the appointment automatically came to an end by efflux of time. Therefore, there could be no retrenchment and

the case is covered under Section 2(oo)(bb) of the Industrial Disputes Act, 1947 (hereinafter referred to as “the Act”). Me has cited the case of State of Rajasthan v. Rameshwar Lal Gaglot, AIR 1996 (SC) 1001 : 1996(2) SCT 600 (SQ. It is observed by the Supreme Court in that case that when the appointment was for a fixed period, it is covered under Section 2(oo)(bb) of the Act. It is observed by the Supreme Court that unless there is a finding that power under clause (bb) of Section 2(oo) was misused or vitiated by its mala fide exercise, it cannot be held that termination is illegal.

4. Counsel for the petitioner has argued that there was no mala fide in not continuing the service of the workman as there is no finding of mala fide. However, after reading the award of the Labour Court, it is found that the Labour Court has observed that termination of service of workman after 89 days and re-employment after break of one day and termination of his service on completion of 232 days amounts to deprive the workman from benefit of provisions of Section 25F of the Act and it amounts to unfair labour practice and termination of his services is liable to be set-aside. This the Labour Court has observed while relying upon the judgment in another case i.e. Ferozerpur Central Cooperative Bank Limited v. Labour Court. The Labour Court has also observed in the present case, that the petitioner has been given employment for 89 days and he was re-employed after some breaks. It is after considering this position and the provisions of section 25F, the Labour Court held that termination was illegal. The Labour Court has virtually given finding that the policy of the petitioner was mala fide. Even otherwise, giving appointment for 89 days with some notional breaks and continuing for a particular period only shows that the period mentioned in the appointment order is a mala fide one.

5. Moreover, it is not shown in the present case that service of the workman cannot be continued because regular incumbent had been appointed. Therefore the case of Copal Krishnaji Ketkar (supra) does not come to the rescue of the petitioners.

6. The next contention of the learned counsel for the petitioners is that the Labour Court had erred in granting full back wages. The workman worked from 1994 to 1997 and it is not shown that the workman as gainfully employed in the forced unemployment period. When this is the position, the principle laid down by the full Bench in the case of Hari Palace, Ambala City v. The Presiding Officer, Labour Court reported in 1979 P.L.R. 720 shall come into play.

This writ petition is without merit and is, therefore, dismissed.

7. Petition dismissed.


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