C.W.P. No.9477 of 1987 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
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C.W.P. No.9477 of 1987
Date of Decision:05.11.2008
Habri Cooperative Credit and Service Society Limited,
Habri, Tehsil Kaithal, District Kurukshetra
.....Petitioner
Vs.
The Presiding Officer, Labour Court, Ambala and another
.....Respondents
CORAM:- HON'BLE MR. JUSTICE HARBANS LAL
Present:- Mr. Rakesh Gupta and Mr. C.B. Goel, Advocates
for the petitioner.
Mr. R.S. Chahar, Advocate for respondent No.2.
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JUDGMENT
HARBANS LAL, J.
This petition has been moved by Habri Cooperative Credit and
Service Limited, Habri under Articles 226/227 of the Constitution of India
for quashing the impugned award Annexure P.2 dated 2.5.1987.
The brief facts giving rise to this petition are that prior to
coming into force of the Common Cadre Rules, 1975, the respective
Societies used to employ its staff. Under these Rules, all the Secretaries
working in the Primary or Central Cooperative Societies were screened and
selected by the Appointing Authority. Balwant Singh- respondent
(hereinafter to be referred as `the workman’) was not selected by the
authority. Consequently, he was no more in service of the petitioner-
Society. He had relinquished the charge on 1.9.1976. After the
C.W.P. No.9477 of 1987 -2-
enforcement of these Rules, the Primary Cooperative Society ceased to have
any control over the appointment or removal of the Secretaries of the
Society. Thus, the workman was not the employee of the petitioner-
Society. He was not brought on the Common Cadre Rules referred to above.
He did not ask for any reference to the arbitration as contemplated by
Sections 55 and 56 of the Punjab Cooperative Societies Act, 1961, nor
Section 102 of the Haryana Cooperative Societies Act, 1984. He remained
at home after 1.9.1976 when he gave the charge of his post. He preferred a
reference under the Industrial Disputes Act, 1947 (for short, `the Act’) and
served a demand notice under Section 2-A of the Act on 2.7.1984. State
Government did not refer the same for adjudication on the ground that he
was not the employee of the said Bank. The petitioner- Society is a primary
Society and is a member of the Kurukshetra Central Cooperative Bank
Limited, Kurukshetra. Since the dispute was not referred for adjudication
against the Kurukshetra Central Cooperative Bank Limited, no reference
could be preferred against the petitioner- Society, who was not the employer
of the workman. However, the demand notice was referred to the Presiding
Officer, Labour Court, Ambala. Since the workman was not the employee
of the petitioner- Society, so the later did not prefer to contest the dispute.
Consequently, the Labour Court passed an award dated 2.5.1987 ex parte
Annexure P.2. The very demand of the workman and the decision of the
Government referring the same to the Labour Court for adjudication of the
dispute between the workman and the petitioner- Society is wholly illegal
and without jurisdiction, as there existed no relationship of master and
servant between them. Moreover, there was no order of termination of
service of the workman- Balwant Singh. The impugned award Annexure
C.W.P. No.9477 of 1987 -3-
P.2 is patently illegal and without jurisdiction on the grounds as embodied
in this petition. In his written statement, the respondent- workman has
averred that he was possessing all the pre-requisite qualifications as
envisaged under Rule 9.6 of the Common Cadre Rules, which came into
force on 3.3.1975, whereas the answering respondent remained in the
employment of the petitioner- Society till 1.9.1976. His services were
dispensed with without any reason or notice as contemplated under the Act.
He had served the petitioner- Society since 1971 to 1.9.1976 and had never
been an employee of the Central Bank under the Common Cadre Rules. The
demand notice was served upon the petitioner- Society. The reference
against the Kurukshetra Central Cooperative Bank was declined by the State
Government vide memo on the sole ground that the answering respondent
was not an employee of the Bank and that is why the dispute was referred.
Lastly, it has been prayed that this petition may be dismissed.
After hearing the representative of the workman, the learned
Presiding Officer, Labour Court, Ambala passed the impugned award by
observing as under:-
“The matter is already subjudice with the Court without
awaiting the result of the criminal case services of Shri Balwant
Singh have been terminated in violation of Section 25(F). So, I
think that the termination order passed by the respondent
regarding services of workman is at this stage unjust and illegal
during the pendency of Criminal Case against the workman and
other person. So, termination of the workman is set aside with
the relief of reinstatement with continuity in service and with
full back wages, I pass an ex-parte award regarding the dispute
C.W.P. No.9477 of 1987 -4-in hand between the parties accordingly. This Award of mine
regarding the present Industrial dispute shall not have any
effect on the Criminal Case pending in the Court of S.D.J.M.
Kaithal. Neither this Award shall in any respect influence the
mind of the Criminal Court while delivering judgment in
Criminal Case.”
Feeling aggrieved with this award, the petitioner has filed this
petition.
I have heard the learned counsel for the parties, besides
perusing the findings returned by the learned Presiding Officer, Labour
Court with due care and circumspection.
Mr. Rakesh Gupta, Advocate appearing on behalf of the
petitioner urged with great eloquence that the services of the workman were
terminated in October, 1976 whereas he asked for a reference on 29.6.1985
which is obviously after about nine years. He could not ask for any relief at
such a belated stage. The learned Labour Court has gravely erred in not
taking into consideration this long delay of nine years. To buttress this
stance, he has sought to place abundant reliance upon the observations made
in re: Haryana State Cooperative Land Development Bank vs. Neelam,
2005(2) Recent Services Judgments 438, in which the respondent-
workman had approached the Labour Court after more than seven years.
The Labour Court held that the claim was made at a belated stage and
answered the award against the respondent- workman. The award was set
aside by the High Court and ordered reinstatement of the respondent. The
Apex Court held that the conduct of the respondent in approaching the
Labour Court after more than seven years had rightly been considered
C.W.P. No.9477 of 1987 -5-
relevant for refusing relief to her. It was not a fit case where the High Court
should have interfered with the discretionary jurisdiction exercised by the
Labour Court.
To tide over these submissions, Mr. R.S. Chahar, Advocate
representing the respondent argued that the petitioner did not have the
courage to contest this matter before the Presiding Officer of the Labour
Court. In the impugned award, it has been mentioned that respondent-
Management was served, but in-spite of service, it did not appear. The
respondent- Management was proceeded ex parte. It clearly indicates that
the Management was quite disinterested to pursue the matter before the
Labour Court. That being so, now it does not lie in its mouth to contend
that the demand was raised by the workman at a belated stage. He further
puts that a glance through the observations made by the Labour Court
would reveal that the same call for no interference. At this juncture, it is
pointed out by the learned counsel for the petitioner that the workman has
superannuated. This fact has not been denied by the adversary. The learned
Presiding Officer, Labour Court has observed that while removing the
workman from service, no notice, no retrenchment compensation was paid.
The Assistant Registrar Cooperative Societies conducted inquiry against
him and copy of the inquiry report is Ex.A.2. Thereafter, arbitration
proceedings were carried out against him. The award of arbitration is
Ex.A.3. A police case was registered against him in which four, five other
persons have also been summoned by the Court and copy of the order of the
Court is Ex.A.4. He served demand notice upon the Bank and, thereafter,
his case was referred to the Labour Court. The Cooperative Society issued a
`no dues certificate’ to him and copy of the same is Ex.A.5. One more `no
C.W.P. No.9477 of 1987 -6-
due certificate’ was issued to him and copy of the same is Ex.A.6. A glance
through the findings returned by the learned Labour Court would reveal that
no interference is warranted therein. The workman cannot be reinstated as
he has already superannuated. The petitioner- Company has not assigned
any cogent reason for not contesting the matter before the Labour Court. If
there was delay in serving the demand notice by the workman, in that, the
petitioner- Company should have come forward and raised an objection in
this behalf before the Labour Court. The facts of Neelam’s case (supra) are
distinguishable from the one in hand. That being so, the contention raised
on behalf of the petitioner’s Company is turned down.
Coming to the back-wages, in re: General Manager, Haryana
Roadways vs. Rudhan Singh, 2005(5) SCC 591, it has been held as under:
“There is no rule of thumb that in every case where the
Industrial Tribunal gives a finding that the termination of
service was in violation of Section 25-F of the Act, entire back
wages should be awarded. A host of factors like the manner
and method of selection and appointment i.e. whether after
proper advertisement of the vacancy or inviting applications
from the employment exchange, nature of appointment,
namely, whether ad hoc, short term, daily wages, temporary or
permanent in character, any special qualification required for
the job and the like should be weighed and balanced in taking a
decision regarding award of back wages. One of the important
factors, which has to be taken into consideration, is the length
of service, which the workman had rendered with the employer.
If the workman has rendered a considerable period of service
C.W.P. No.9477 of 1987 -7-and his services are wrongfully terminated, he may be awarded
full or partial back wages keeping in view the fact that at his
age and the qualification possessed by him he may not be in a
position to get another employment. However, where the total
length of service rendered by a workman is very small, the
award of back wage for the complete period i.e. from the date
of termination till the date of the award, which our experience
shows is often quite large, would be wholly inappropriate.
Another important factor, which requires to be taken into
consideration is the nature of employment. A regular service of
permanent character cannot be compared to short or
intermittent daily-wage employment though it may be for 240
days in a calendar year.”
Again in Allahabad Jal Sansthan vs. Daya Shankar Rai, 2005
(5) SCC 124, after considering the relevant cases on the point, their
Lordships were pleased to observe in the following terms:
“We have referred to certain decisions of this Court to
highlight that earlier in the event of an order of dismissal being
set aside, reinstatement with full back wages was the usual
result. But now with the passage of time, it has come to be
realized that industry is being compelled to pay the workman
for a period during which he apparently contributed little or
nothing at all, for a period that was spent unproductively, while
the workman is being compelled to go back to a situation
which prevailed many years ago when he was dismissed. It is
necessary for us to develop a pragmatic approach to problems
C.W.P. No.9477 of 1987 -8-dogging industrial relations. However, no just solution can be
offered but the golden mean may be arrived at.”
In re: U.P.S.R.T.C. Ltd. vs. Sarada Prasad Misra, JT 2006(5)
SC 114, it was observed as under:
“From the above cases, it is clear that no precise formula can be
adopted nor `cast iron rule’ can be laid down as to when
payment of full back wages should be allowed by the Court or
Tribunal. It depends upon the facts and circumstances of each
case. The approach of the Court/ Tribunal should not be rigid
or mechanical but flexible and realistic. The Court or Tribunal
dealing with cases of industrial disputes may find force in the
contention of the employee as to illegal termination of his
services and may come to the conclusion that the action has
been taken otherwise than in accordance with law. In such
cases obviously, the workman would be entitled to
reinstatement but the question regarding payment of back
wages would be independent of the first question as to
entitlement of reinstatement in service. While considering and
determining the second question, the Court or Tribunal would
consider all relevant circumstances referred to above and
keeping in view the principles of justice, equity and good
conscience, should pass an appropriate order.”
Thus, entitlement of a workman to get reinstatement does not
necessarily result in payment of back wages which would be independent of
reinstatement. While dealing with the prayer of back wages, factual
scenario and the principles of justice, equity and good conscience have to be
C.W.P. No.9477 of 1987 -9-
kept in view by an appropriate Court/ Tribunal.
Adverting to the case in hand, the workman has undergone
litigation for over 20 years. The interest of justice would be met, if a sum of
Rs.2.75 lacs is directed to be paid to him by way of compensation. The
payment shall be made within 12 weeks from today, failing which it shall
carry interest at the rate of 9% per month from today till the date of actual
payment. Accordingly, the award is modified.
Disposed of accordingly.
November 05, 2008 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes.