IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Writ Petition No.8902 of 1999
Date of decision:15.10.2009
M/s Bhiwani Textile Mills, Bhiwani ...Petitioner
versus
Presiding Officer, Industrial Tribunal-cum-Labour Court, Rohtak and
others. ...Respondents.
CORAM: HON'BLE MR. JUSTICE K. KANNAN
----
Present: Mr. Pawan Kumar Mutneja, Advocate with
Ms. Monica Sharma, Advocate, for the petitioner.
Mr. B.R.Vohra, Advocate, for the respondent.
----
1. Whether reporters of local papers may be allowed to see the
judgment ?
2. To be referred to the reporters or not ?
3. Whether the judgment should be reported in the digest ?
----
K.Kannan, J.
1. The writ petition challenges the award of the Labour Court
directing reinstatement of the workman with continuity of service and for
back wages. The contention of the workman had been that he had been
employed as a Reacher in Babhary (drawing in) department of the
Textile Mill on temporary basis since 01.12.1989 as against
absenteeism/leave vacancy in the department. The work was done on
change basis system and any absenteeism by a worker broke the chain
hampering the working of the entire system. In order to cope with the
urgent requirement, temporary workers had been recruited to
work during the period of leave/absenteeism of permanent workmen.
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According to the management, the tenure of appointment was as per the
exigency of the work and was never continuous. The workman used to
be paid only on the days when he worked.
2. The workman had given an application to the manager of the
Mill on 15.01.1990 seeking for regularization as a badli worker. The
necessary particulars of service had been called for by the Record
Keeper, who recorded on the application that the workman had been
appointed from 01.12.1989, but however, on 01.02.1991, when the
workman had reported for duty, he was not allowed to work and verbally
told that the services were no longer required. The workman claimed
that he had worked from 01.12.1989 to 31.01.1991 with breaks of two or
three days after two months, which according to the workman constituted
a deliberate unfair labour practice. His further contention was that many
persons junior to the workman had been regularized as badli workers, but
the claim of the workman alone had been ignored. On a demand notice
issued by the workman complaining of illegal termination, the
management responded before the Conciliation Officer with an offer to
permit him to work as a temporary workman, but the workman refused
the offer on the ground that unless he was absorbed as permanent/badli
employee, he was not prepared to accept the engagement. The
contention of the management was evidently that the workman had been
employed for a specific purpose during the absence of some other
workmen and when there was no vacancy and when the other workmen
during the absence of the workman had been employed, and had resumed
duty, the workman is bound to be terminated from service. According to
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the management, the termination qualified for the expression of cessation
of work as provided under Section 2(oo)(bb) of the Industrial Disputes
Act.
3. The Labour Court found that on the failure of the
management to produce the attendance register, an inference had to be
drawn and held that the workman had completed 240 days as claimed by
him. The Labour Court also found that the management was guilty of
unfair labour practice by making reference to the P.F. Account numbers
of some persons Virender and Rattan Lal by making an inference that the
workman’s P.F. Account was mentioned as 11073 while Virender’s
Account was shown as 11084 and therefore, the latter ought to have been
his junior. Finding that Virender had been regularized while the
workman had been terminated from service, the Court found the
contention of the workman as regard his complaint of unfair labour
practice to have been established.
4. The learned counsel Shri Mutneja appearing for the
management would contend that the Labour Court had not properly
appreciated the evidence which had been placed before the Court and the
alleged admitted situation that the workman had not completed 240 days.
His further contention was that a badli workman was not a permanent
employee, but was merely a person working on leave vacancy and he had
no right to demand a right of reinstatement even after the particular
contingency under which he gained employment, was no longer
available. The finding of unfair labour practice, according to the learned
counsel, was erroneous and the Labour Court had made inferences that
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the so-called contingencies of employment of temporary workmen did
not exist.
5. On the issue relating to the nature of engagement, the
evidence of the workman before the Labour Court was to the effect that
Virender son of Shri Bans Gopal had been appointed as Reacher on
05.12.1989 and another person Rattan Lal son of Shri Murlidhar, had
joined in March, 1990, both of whom were made badli, while the
workman had been in employment from 01.12.1989 but not afforded
such badli status. The learned counsel appearing for the management
pointed out before me the evidence of the workman when had admitted
that it was correct that at the time when he had issued the demand notice,
all the permanent badli Reachers in the employment of the Mill, had been
seniors to him. He conceded that the offer for employment as a
temporary Reacher was made to him but he persisted that he was not
willing to join in such a temporary capacity. He had also admitted that
after 31.01.1991, he had never gone to duty in the Mill. The Assistant
Head Timekeeper with the management, Shri Bharat Bhushan Aggarwal
had been examined as MW-1, who claimed that he had brought the
original attendance records upto the year, 1991. It was this particular
record which according to the Labour Court, was not produced and
therefore, an adverse inference had been drawn. The assumption,
according to the learned counsel for the management, was wholly wrong
and the justification for drawing an adverse inference simply did not
exist. The learned counsel would refer to the extract of the number of
days that the workman had worked between 01.12.1989 to January, 1991
Civil Writ Petition No.8902 of 1999 -5-
from out of the attendance register that disclosed that the workman had
worked only for 190 days if the reckoning was to be made from
01.12.1989 to 30.11.1989 and if the reckoning was to be made from
January, 1990 to December, 1990 or if the calculation was to be made
from February, 1990 to January, 1991, still the number of days that he
had worked did not account for 240 days. The extract that was produced
before the Court from the attendance register was itself from 01.12.1989
to January, 1991 that is, for a period of 13 months and even if the full
allowance had been granted to treating Sundays and holidays even then
the workman could not be shown to have completed 240 days. As
pointed out by the learned counsel appearing for the management, it was
not correct in stating that the attendance register itself had not been
produced before the Court. There is clear evidence to that effect by
MW-1 and even the number of days that the workman had been shown to
have worked, was extracted only from the attendance register which was
before the Labour Court and which was taken back by the witness.
6. The Labour Court was also perhaps not justified in assuming
that the badli worker attained to a status of a permanent workman. The
management had explained that it maintained three different categories
namely of temporary workmen whose services were in the nature of
being temporary and contingent; badli workman, who had been
employed during absence of regular workers and regular workmen, who
ranked highest in the order of seniority and permanent. The appointment
of the workman as temporary workman was only as per the requirements
of the Mill and was always done for a period of only 59 days. The
Civil Writ Petition No.8902 of 1999 -6-
witness had also explained that there were merely 200 to 250 workers,
who had been employed on the basis of requirement of the work and all
of them were retained only on temporary basis. MW-1 had admitted in
his evidence that Virender was one of the persons, who had been
appointed for 59 days on temporary basis on 05.12.1989 and from
temporary, the management had made him a badli workman. The Deputy
General Manager, Rajinder Kaushik, who gave evidence as MW-2,
explained before the Court the various categories of workmen and the
need to employ temporary workmen to keep the continuity of work when
some workmen remained absent. He explained that permanent
employees had been given a green card and temporary employees had
been issued with red colour cards. When permanent employees remained
absent, at his place a badli was employed and if badli absented himself,
the temporary was employed. The status of the workman Dharmpal was
explained by MW-2 as unskilled labour and as and when work arose, he
had been called and issued with the red card for employment for two
months. The management-witness reiterated the offer for work as a
temporary worker was made during the conciliation proceedings but the
workman had not received to join.
7. The Standing Orders themselves had not been produced
before Court, but it was elicited through MW-2 that apart from
permanent, badli and temporary, there is yet another category by name
casual worker and that badli worker was appointed on the absence of
permanent workman. It was elicited through his evidence that the work
of babery khata, folding khata and weaving khata were permanent in
Civil Writ Petition No.8902 of 1999 -7 –
nature but the absence rate was very high so that 20 to 30% of temporary
workers were always required from time to time. Explaining the work of
Reacher was to feed the thread and that the work at babery khata itself
was only unskilled, the workman admitted that the attendance register for
all types of workmen had been maintained. MW-2 had denied the
suggestion that the manner of engagement of temporary workmen for a
spell of two months was an unfair labour practice.
8. From an examination of all the records and evidence of the
respective witnesses, it bears out clearly that the Labour Court had fallen
into error in thinking that there was a scope for drawing an adverse
inference, failing to note although the attendance register had not been
exhibited as evidence, there was definite statement to the effect that the
extract to number of working days which the workman had worked had
been prepared only from the attendance register which was before the
Labour Court and from that, it was clear that the workman had not
completed 240 days. The documents filed before the Court and the
evidence produced also bore out clearly that even apart from permanent
workman, a classification of badli workers had been made, who fell in
the next line in the hierarchy after the permanent and still below them
were the temporary workmen. It was again clear through the evidence
that the workman had been employed as a temporary workman and the
workman was also correct in stating that Virender and Rattan Lal had
been employed subsequent to him. However, the workman was not
justified, as the Labour Court itself was not, in making an inference that
Virender and Rattan Lal had been made badli workman above the claims
Civil Writ Petition No.8902 of 1999 -8-
of the workman. A procedure had been set forth in the evidence that it
was only the duty of the Mill manager to accord the higher status as a
badli worker from a temporary workman. A badli worker himself is not
in any way to be treated as a permanent workman and only persons who
had offered the services regularly as temporary workman during various
spells qualified for a higher status as badli. Virender and Rattan Lal by
continuance in the work had been taken as badli workers which still did
not accord to them any status as permanent workman. The workman, if
he had not been accorded that status it was only because the nature of
engagement was such that only when there was vacancy arising out of
absence of any permanent workman, it became possible for retaining the
services of the temporary workman as badli. The nature of appointment
of the whole class of persons either as temporary or badli was wholly
contingent and the termination that is occasioned by the unavailability of
work arising out of permanent workman rejoining cannot be treated as
resulting in retrenchment. The nature of work and the termination of
service that it resulted after various spells of work were squarely
governed by Section 2(oo)(bb) and the workman was not entitled to
completion of any unfair labour practice.
9. The findings of the Labour Court both as regards the
completion of 240 days of service and the unfair labour practice on the
part of the management, were clearly wrong. The claim statement itself
did not make out a case of any violation of Section 25-G or 25-H and if
the observation of the Labour Court were to be understood that the
junior workmen had been retained as badli meant that any violation of
Civil Writ Petition No.8902 of 1999 -9-
Section 25-G or H were made, it was again without any proper basis.
The workman had himself not filed any records or produce evidence that
enabled the temporary workman to qualify for the higher status as badli
and how that entitlement was denied to him. The Labour Court failed to
note that the workman had deliberately not availed offer to resume work
as a temporary workman and insisted for conferment of a status as badli.
There is no proof for the basis of his claim for such entitlement.
10. The workman could not have any relief before the Court for
all that the workman was complaining was that his termination was
illegal. It was not, for, if he had not put in for 240 days of continuous
service, a non-compliance of Section 25-F did not arise. If the manner of
engagement in various short spells were to be treated as unfair labour
practice, the justification was explained by the management-witness by
having to continue with the system of coping with regular absenteeism of
permanent workman and keeping a roster of temporary workers who
could be accommodated to fill up such vacancies and to prevent the
working chain from being broken. The demand of the workman was not
justified and the reference answered in his favour by the Labour Court
was also not tenable.
9. The award of the Labour Court is set aside and the writ
petition is allowed. There shall be, however, no directions as to costs.
(K.KANNAN)
15.10.2009 JUDGE
sanjeev