Civil Writ Petition No.3071 of 1989 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
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Civil Writ Petition No.3071 of 1989
Date of Decision:18.12.2008
Manjit Singh
.....Petitioner
Vs.
The Julan Cooperative Agricultural Service Society Ltd., Julan
and another
.....Respondent
CORAM:- HON'BLE MR. JUSTICE HARBANS LAL
Present:- Mr. A.S. Klar, Advocate for Mr.Vikas Singh, Advocate
for the petitioner.
Mr. M.S. Bedi, Advocate for respondent No.1.
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JUDGMENT
HARBANS LAL, J.
This petition has been moved by Manjit Singh under Articles
226/227 of the Constitution of India for quashing the award dated 9.8.1988
Annexure P.1.
The brief facts giving rise to this petition are that the petitioner
has put in two years and six months’ service with the respondent- Society as
Cashier and was drawing Rs.387/- per month by way of wages, when his
services were terminated on 8.6.1981. There was a general strike by the
employees of the Cooperative Societies in Punjab. The notice for this strike
had been given to the Registrar, Cooperative Societies and higher
authorities. The petitioner raised an industrial dispute that his services had
been terminated without any notice, charge-sheet, inquiry or compensation.
Civil Writ Petition No.3071 of 1989 -2-
The Presiding Officer, Labour Court, Patiala vide the impugned award held
that the workman is not entitled to any relief. This award is liable to be
quashed in view of the reasons assigned in 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. A.S. Klar, Advocate representing the petitioner urged with
a good deal of force that the services of the petitioner were admittedly
terminated without any inquiry, charge-sheet or payment of compensation
on the ground that he was absent from duty. The learned Presiding Officer,
Labour Court was not right in holding that the order of termination of
services of the workman was justified and in order.
In a bid to counter these arguments, Mr. M.S. Bedi, Advocate
appearing on behalf of the respondent- Society argued that the petitioner
remained absent from duty for four months with effect from 8th May, 1981
for participating in illegal strike in connection with which he remained in
jail and all this happened without the workman taking any leave from the
respondent or informing the employer about his arrest in connection with an
illegal strike. Furthermore, Ex.M3, Ex.M6, Ex.M7 and Ex.M8 tend to show
that there was arbitration award against him. In these premises, no useful
purpose would have been served by holding domestic inquiry as the
petitioner did not explain his conduct before the authorities. Sequelly, the
impugned award in no manner can be faulted with. He has sought to place
reliance upon the observations rendered in re: Jaswant Singh v. The State
of Punjab and others, 1986 Punjab Legal Reports and Statutes 314,
Civil Writ Petition No.3071 of 1989 -3-
wherein it has been observed that the employees of a cooperative society
cannot enforce contract of service.
I have given a deep and thoughtful consideration to the rival
contentions.
Primarily, it is to be determined as to whether the domestic
inquiry was required to be held before passing the order in relation to the
termination of services of the petitioner. In re: Makhan Singh
v.Narainpura Cooperative Agricultural Service Society Limited and
another, AIR 1987 Supreme Court 1892, the appellant- Makhan Singh
was working as the Secretary of Narainpura Cooperative Agricultural
Service Society Limited, Narainpura, District Ferozepur. He did not attend
his duties between May 11, 1981 and May 29, 1981. He had stayed away
from the work during that period. The Society passed a resolution on May
30, 1981 terminating his services. On being raised industrial dispute, the
Labour Court found that the appellant had committed embezzlement and
that he had absented himself from duties without obtaining leave and the
termination of the services of the appellant was justified. The Apex Court
observed as under:-
“On a consideration of the whole material placed before this
Court we are of the view that the decision of the management
in the instant case to terminate the services of the appellant
without holding any domestic enquiry is not a bona fide one.
We accordingly hold that the termination of the appellant’s
services is unjustified. In the result, we set aside the judgment
of the High Court and the award passed by the Labour Court
Civil Writ Petition No.3071 of 1989 -4-and pass an award directing the Society to reinstate the
appellant in its service with effect from May 30, 1981, the date
on which the Society passed the resolution terminating the
appellants’ services. The appellant shall be treated as being in
the service of the Society without any break in his service. He
is entitled to all the consequential benefits. We direct the
society to pay full back wages to the appellant from the date of
termination of his service till the date of reinstatement.”
The facts of the case in hand being somewhat similar with
Makhan Singh’s case (supra), the decision of the respondent- Society to
terminate the services of the petitioner without holding any domestic
inquiry was not bonafide. In re: I.M.H. Press, Delhi v. Additional
Industrial Tribunal Delhi, AIR 1961 Supreme Court 1168, it has been
held by the Apex Court “that mere taking part in an illegal strike without
anything further would not necessarily justify the dismissal of all the
workmen taking part in the strike. An identical view has been taken by the
Division Bench of this Court in re: The Coca-Cola Factory Workers
Union v. The Management of Punjab Beverages Private Limited,
Chandigarh and another, 1987 Labour and Industrial Cases 607, in
which it has been held as under:-
“Mere participation in an illegal and unjustified strike per
se is not sufficient to impose punishment of termination of
service on a workman. The management must establish, either
during the domestic enquiry or failing that before the Tribunal,
that the worker in question indulged in vandalism or violence,
Civil Writ Petition No.3071 of 1989 -5-instigation or sabotage.
Held on facts that the respondent- Management having
not held a domestic enquiry before terminating the services of
the workmen, nor having adduced any evidence against the
workmen regarding their individual misconduct, there is no
escape from the conclusion that the order of termination of the
services of the workmen passed by the respondent-
Management was illegal.
Held further that the strike was legal and justified and
hence the termination of the services of the workmen was,
therefore, obviously illegal and unjustified.”
In re: Kendriya Vidyalaya Sangathan and another v. S.C.
Sharma, 2005(1) Service Cases Today 569, the workman had absented
from duty. His service was terminated. The Apex Court ruled that “The
competent authority must record its conclusions with sufficient reasons
based on some material as to its satisfaction that the holding of inquiry was
not reasonably practicable failing which the order of dismissal in the
absence of any inquiry will be vitiated.”
Harking back to the instant case, no such conclusions have
been recorded for not holding the domestic inquiry. Sequelly, the impugned
award is quashed. The services of the petitioner were terminated way back
in the year 1981. He was drawing Rs.387/- per month as salary. He had put
in two years and six months’ service. These facts bear semblance with
Rajasthan Lalit Kala Academy v. Radhey Shyam, 2008(4) Service Cases
Today 841, wherein the workman was appointed on 7.6.1980 on a monthly
Civil Writ Petition No.3071 of 1989 -6-
salary of Rs.300/- to do the work of a junior Clerk. On 4.4.1981, his
services were terminated. On an industrial dispute being raised, the
Industrial Tribunal, Jaipur by an award dated 24.9.1983, set aside the order
of termination and directed reinstatement of the respondent with effect from
24.9.1983 with 50% back-wages. The Apex Court held as under:-
“It appears to us that in the present case there has not been due
application of mind either by the Labour Court or the High
Court on the question of reinstatement and payment of 25%
back-wages. The only ground on which reinstatement and
continuity of service has been ordered is because the order of
termination has been held to be unlawful. Similarly, 25% back-
wages have been awarded for the reason that the services of the
petitioner were terminated with immediate effect but no
specific reason as such has been assigned for the award of the
said back-wages. In our opinion, though, illegality of the order
of termination is one of the prime considerations for
determining the question and quantum of back-wages, but it
cannot be the sole criterion therefor. A host of other factors, a
few enumerated above, are required to be taken into
consideration before issuing directions in that behalf.
Therefore, the award of the Labour Court to that extent cannot
be sustained. However, we feel that at this distant time, it
would not be fair to the respondent- workman to remit the
matter back to the Labour Court or the High Court for fresh
consideration of the issue. In the light of the observations
Civil Writ Petition No.3071 of 1989 -7-referred to supra and having regard to the nature and the period
of services rendered by the respondent and the fact that his
services were terminated initially on 4th April, 1981 and then on
31st January, 1985 and the vicissitudes of long-drawn litigation,
the respondent has undergone for over 27 years, interest of
justice would be met if instead and in place of direction for
reinstatement and back-wages – a sum of Rs.3 lakhs is directed
to be paid to the respondent by way of compensation. We direct
accordingly. The payment shall be made within eight weeks
from today, failing which it shall carry interest @ 9% per
annum from the date of this judgment till the date of actual
payment.”
Learned counsel for the petitioner has submitted that by now,
the petitioner would have been superannuated. Therefore, in the factual
scenario, the interest of justice would be met, if instead and in place of
direction for reinstatement and back-wages, a sum of Rs.3 lacs is directed to
be paid to the petitioner by way of compensation. I direct accordingly. The
payment shall be made within eight weeks from today, failing which, it shall
carry interest at the rate of 9% per annum from the date of this judgment till
the date of actual payment.
Disposed of accordingly.
December 18, 2008 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes.