{"id":206137,"date":"2009-10-15T00:00:00","date_gmt":"2009-10-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ms-bhiwani-textile-mills-vs-presiding-officer-on-15-october-2009-2"},"modified":"2016-12-21T02:41:27","modified_gmt":"2016-12-20T21:11:27","slug":"ms-bhiwani-textile-mills-vs-presiding-officer-on-15-october-2009-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ms-bhiwani-textile-mills-vs-presiding-officer-on-15-october-2009-2","title":{"rendered":"M\/S Bhiwani Textile Mills vs Presiding Officer on 15 October, 2009"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
M\/S Bhiwani Textile Mills vs Presiding Officer on 15 October, 2009<\/div>\n
      IN THE HIGH COURT OF PUNJAB AND HARYANA AT\n                     CHANDIGARH\n\n                                Civil Writ Petition No.8902 of 1999\n                                Date of decision:15.10.2009\n\n\nM\/s Bhiwani Textile Mills, Bhiwani                     ...Petitioner\n\n\n                               versus\n\n\nPresiding Officer, Industrial Tribunal-cum-Labour Court, Rohtak and\nothers.                                             ...Respondents.\n\n\nCORAM: HON'BLE MR. JUSTICE K. KANNAN\n                               ----\nPresent:    Mr. Pawan Kumar Mutneja, Advocate with\n            Ms. Monica Sharma, Advocate, for the petitioner.\n\n            Mr. B.R.Vohra, Advocate, for the respondent.\n                             ----\n\n1.    Whether reporters of local papers may be allowed to see the\n      judgment ?\n2.    To be referred to the reporters or not ?\n3.    Whether the judgment should be reported in the digest ?\n                                ----\n\nK.Kannan, J.\n<\/pre>\n
1.          The writ petition challenges the award of the Labour Court<\/p>\n
directing reinstatement of the workman with continuity of service and for<\/p>\n
back wages. The contention of the workman had been that he had been<\/p>\n
employed as a Reacher in Babhary (drawing in) department of the<\/p>\n
Textile Mill on temporary basis since 01.12.1989 as against<\/p>\n
absenteeism\/leave vacancy in the department. The work was done on<\/p>\n
change basis system and any absenteeism by a worker broke the chain<\/p>\n
hampering the working of the entire system. In order to cope with the<\/p>\n
urgent requirement,    temporary workers      had been recruited       to<\/p>\n
work during the period of leave\/absenteeism of permanent workmen.
\n Civil Writ Petition No.8902 of 1999                           -2-<\/span><\/p>\n
According to the management, the tenure of appointment was as per the<\/p>\n
exigency of the work and was never continuous. The workman used to<\/p>\n
be paid only on the days when he worked.\n<\/p>\n
2.          The workman had given an application to the manager of the<\/p>\n
Mill on 15.01.1990 seeking for regularization as a badli worker. The<\/p>\n
necessary particulars of service had been called for by the Record<\/p>\n
Keeper, who recorded on the application that the workman had been<\/p>\n
appointed from 01.12.1989, but however, on 01.02.1991, when the<\/p>\n
workman had reported for duty, he was not allowed to work and verbally<\/p>\n
told that the services were no longer required. The workman claimed<\/p>\n
that he had worked from 01.12.1989 to 31.01.1991 with breaks of two or<\/p>\n
three days after two months, which according to the workman constituted<\/p>\n
a deliberate unfair labour practice. His further contention was that many<\/p>\n
persons junior to the workman had been regularized as badli workers, but<\/p>\n
the claim of the workman alone had been ignored. On a demand notice<\/p>\n
issued by the workman complaining of illegal termination, the<\/p>\n
management responded before the Conciliation Officer with an offer to<\/p>\n
permit him to work as a temporary workman, but the workman refused<\/p>\n
the offer on the ground that unless he was absorbed as permanent\/badli<\/p>\n
employee, he was not prepared to accept the engagement.              The<\/p>\n
contention of the management was evidently that the workman had been<\/p>\n
employed for a specific purpose during the absence of some other<\/p>\n
workmen and when there was no vacancy and when the other workmen<\/p>\n
during the absence of the workman had been employed, and had resumed<\/p>\n
duty, the workman is bound to be terminated from service. According to
\n Civil Writ Petition No.8902 of 1999                            -3-<\/span><\/p>\n
the management, the termination qualified for the expression of cessation<\/p>\n
of work as provided under Section 2(oo)(bb) of the Industrial Disputes<\/p>\n
Act.\n<\/p>\n
3.            The Labour Court found that on the failure of the<\/p>\n
management to produce the attendance register, an inference had to be<\/p>\n
drawn and held that the workman had completed 240 days as claimed by<\/p>\n
him. The Labour Court also found that the management was guilty of<\/p>\n
unfair labour practice by making reference to the P.F. Account numbers<\/p>\n
of some persons Virender and Rattan Lal by making an inference that the<\/p>\n
workman’s P.F. Account was mentioned as 11073 while Virender’s<\/p>\n
Account was shown as 11084 and therefore, the latter ought to have been<\/p>\n
his junior.    Finding that Virender had been regularized while the<\/p>\n
workman had been terminated from service, the Court found the<\/p>\n
contention of the workman as regard his complaint of unfair labour<\/p>\n
practice to have been established.\n<\/p>\n
4.            The learned counsel Shri Mutneja appearing for the<\/p>\n
management would contend that the Labour Court had not properly<\/p>\n
appreciated the evidence which had been placed before the Court and the<\/p>\n
alleged admitted situation that the workman had not completed 240 days.<\/p>\n
His further contention was that a badli workman was not a permanent<\/p>\n
employee, but was merely a person working on leave vacancy and he had<\/p>\n
no right to demand a right of reinstatement even after the particular<\/p>\n
contingency under which he gained employment,            was no longer<\/p>\n
available. The finding of unfair labour practice, according to the learned<\/p>\n
counsel, was erroneous and the Labour Court had made inferences that
\n Civil Writ Petition No.8902 of 1999                            -4-<\/span><\/p>\n
the so-called contingencies of employment of temporary workmen did<\/p>\n
not exist.\n<\/p>\n
5.           On the issue relating to the nature of engagement, the<\/p>\n
evidence of the workman before the Labour Court was to the effect that<\/p>\n
Virender son of Shri Bans Gopal had been appointed as Reacher on<\/p>\n
05.12.1989 and another person Rattan Lal son of Shri Murlidhar, had<\/p>\n
joined in March, 1990, both of whom were made badli, while the<\/p>\n
workman had been in employment from 01.12.1989 but not afforded<\/p>\n
such badli status. The learned counsel appearing for the management<\/p>\n
pointed out before me the evidence of the workman when had admitted<\/p>\n
that it was correct that at the time when he had issued the demand notice,<\/p>\n
all the permanent badli Reachers in the employment of the Mill, had been<\/p>\n
seniors to him.    He conceded that the offer for employment as a<\/p>\n
temporary Reacher was made to him but he persisted that he was not<\/p>\n
willing to join in such a temporary capacity. He had also admitted that<\/p>\n
after 31.01.1991, he had never gone to duty in the Mill. The Assistant<\/p>\n
Head Timekeeper with the management, Shri Bharat Bhushan Aggarwal<\/p>\n
had been examined as MW-1, who claimed that he had brought the<\/p>\n
original attendance records upto the year, 1991. It was this particular<\/p>\n
record which according to the Labour Court, was not produced and<\/p>\n
therefore, an adverse inference had been drawn. The assumption,<\/p>\n
according to the learned counsel for the management, was wholly wrong<\/p>\n
and the justification for drawing an adverse inference simply did not<\/p>\n
exist. The learned counsel would refer to the extract of the number of<\/p>\n
days that the workman had worked between 01.12.1989 to January, 1991
\n Civil Writ Petition No.8902 of 1999                          -5-<\/span><\/p>\n
from out of the attendance register that disclosed that the workman had<\/p>\n
worked only for 190 days if the reckoning was to be made from<\/p>\n
01.12.1989 to 30.11.1989 and if the reckoning was to be made from<\/p>\n
January, 1990 to December, 1990 or if the calculation was to be made<\/p>\n
from February, 1990 to January, 1991, still the number of days that he<\/p>\n
had worked did not account for 240 days. The extract that was produced<\/p>\n
before the Court from the attendance register was itself from 01.12.1989<\/p>\n
to January, 1991 that is, for a period of 13 months and even if the full<\/p>\n
allowance had been granted to treating Sundays and holidays even then<\/p>\n
the workman could not be shown to have completed 240 days. As<\/p>\n
pointed out by the learned counsel appearing for the management, it was<\/p>\n
not correct in stating that the attendance register itself had not been<\/p>\n
produced before the Court. There is clear evidence to that effect by<\/p>\n
MW-1 and even the number of days that the workman had been shown to<\/p>\n
have worked, was extracted only from the attendance register which was<\/p>\n
before the Labour Court and which was taken back by the witness.<\/p>\n
6.          The Labour Court was also perhaps not justified in assuming<\/p>\n
that the badli worker attained to a status of a permanent workman. The<\/p>\n
management had explained that it maintained three different categories<\/p>\n
namely of temporary workmen whose services were in the nature of<\/p>\n
being temporary and contingent; badli workman, who had been<\/p>\n
employed during absence of regular workers and regular workmen, who<\/p>\n
ranked highest in the order of seniority and permanent. The appointment<\/p>\n
of the workman as temporary workman was only as per the requirements<\/p>\n
of the Mill and was always done for a period of only 59 days. The
\n Civil Writ Petition No.8902 of 1999                          -6-<\/span><\/p>\n
witness had also explained that there were merely 200 to 250 workers,<\/p>\n
who had been employed on the basis of requirement of the work and all<\/p>\n
of them were retained only on temporary basis. MW-1 had admitted in<\/p>\n
his evidence that Virender was one of the persons, who had been<\/p>\n
appointed for 59 days on temporary basis on 05.12.1989 and from<\/p>\n
temporary, the management had made him a badli workman. The Deputy<\/p>\n
General Manager, Rajinder Kaushik, who gave evidence as MW-2,<\/p>\n
explained before the Court the various categories of workmen and the<\/p>\n
need to employ temporary workmen to keep the continuity of work when<\/p>\n
some workmen remained absent.          He explained that permanent<\/p>\n
employees had been given a green card and temporary employees had<\/p>\n
been issued with red colour cards. When permanent employees remained<\/p>\n
absent, at his place a badli was employed and if badli absented himself,<\/p>\n
the temporary was employed. The status of the workman Dharmpal was<\/p>\n
explained by MW-2 as unskilled labour and as and when work arose, he<\/p>\n
had been called and issued with the red card for employment for two<\/p>\n
months. The management-witness reiterated the offer for work as a<\/p>\n
temporary worker was made during the conciliation proceedings but the<\/p>\n
workman had not received to join.\n<\/p>\n
7.          The Standing Orders themselves had not been produced<\/p>\n
before Court, but it was elicited through MW-2 that apart from<\/p>\n
permanent, badli and temporary, there is yet another category by name<\/p>\n
casual worker and that badli worker was appointed on the absence of<\/p>\n
permanent workman. It was elicited through his evidence that the work<\/p>\n
of babery khata, folding khata and weaving khata were permanent in
\n Civil Writ Petition No.8902 of 1999                             -7 –<\/span><\/p>\n
nature but the absence rate was very high so that 20 to 30% of temporary<\/p>\n
workers were always required from time to time. Explaining the work of<\/p>\n
Reacher was to feed the thread and that the work at babery khata itself<\/p>\n
was only unskilled, the workman admitted that the attendance register for<\/p>\n
all types of workmen had been maintained.         MW-2 had denied the<\/p>\n
suggestion that the manner of engagement of temporary workmen for a<\/p>\n
spell of two months was an unfair labour practice.\n<\/p>\n
8.          From an examination of all the records and evidence of the<\/p>\n
respective witnesses, it bears out clearly that the Labour Court had fallen<\/p>\n
into error in thinking that there was a scope for drawing an adverse<\/p>\n
inference, failing to note although the attendance register had not been<\/p>\n
exhibited as evidence, there was definite statement to the effect that the<\/p>\n
extract to number of working days which the workman had worked had<\/p>\n
been prepared only from the attendance register which was before the<\/p>\n
Labour Court and from that, it was clear that the workman had not<\/p>\n
completed 240 days. The documents filed before the Court and the<\/p>\n
evidence produced also bore out clearly that even apart from permanent<\/p>\n
workman, a classification of badli workers had been made, who fell in<\/p>\n
the next line in the hierarchy after the permanent and still below them<\/p>\n
were the temporary workmen.      It was again clear through the evidence<\/p>\n
that the workman had been employed as a temporary workman and the<\/p>\n
workman was also correct in stating that Virender and Rattan Lal had<\/p>\n
been employed subsequent to him. However, the workman was not<\/p>\n
justified, as the Labour Court itself was not, in making an inference that<\/p>\n
Virender and Rattan Lal had been made badli workman above the claims
\n Civil Writ Petition No.8902 of 1999                            -8-<\/span><\/p>\n
of the workman. A procedure had been set forth in the evidence that it<\/p>\n
was only the duty of the Mill manager to accord the higher status as a<\/p>\n
badli worker from a temporary workman. A badli worker himself is not<\/p>\n
in any way to be treated as a permanent workman and only persons who<\/p>\n
had offered the services regularly as temporary workman during various<\/p>\n
spells qualified for a higher status as badli. Virender and Rattan Lal by<\/p>\n
continuance in the work had been taken as badli workers which still did<\/p>\n
not accord to them any status as permanent workman. The workman, if<\/p>\n
he had not been accorded that status it was only because the nature of<\/p>\n
engagement was such that only when there was vacancy arising out of<\/p>\n
absence of any permanent workman, it became possible for retaining the<\/p>\n
services of the temporary workman as badli. The nature of appointment<\/p>\n
of the whole class of persons either as temporary or badli was wholly<\/p>\n
contingent and the termination that is occasioned by the unavailability of<\/p>\n
work arising out of permanent workman rejoining cannot be treated as<\/p>\n
resulting in retrenchment. The nature of work and the termination of<\/p>\n
service that it resulted after various spells of work were squarely<\/p>\n
governed by Section 2(oo)(bb) and the workman was not entitled to<\/p>\n
completion of any unfair labour practice.\n<\/p>\n
9.          The findings of the Labour Court both as regards the<\/p>\n
completion of 240 days of service and the unfair labour practice on the<\/p>\n
part of the management, were clearly wrong. The claim statement itself<\/p>\n
did not make out a case of any violation of Section 25-G or 25-H and if<\/p>\n
the observation of the Labour Court were to be understood that the<\/p>\n
junior workmen had been retained as badli meant that any violation of
\n Civil Writ Petition No.8902 of 1999                             -9-<\/span><\/p>\n
Section 25-G or H were made, it was again without any proper basis.<\/p>\n
The workman had himself not filed any records or produce evidence that<\/p>\n
enabled the temporary workman to qualify for the higher status as badli<\/p>\n
and how that entitlement was denied to him. The Labour Court failed to<\/p>\n
note that the workman had deliberately not availed offer to resume work<\/p>\n
as a temporary workman and insisted for conferment of a status as badli.<\/p>\n
There is no proof for the basis of his claim for such entitlement.<\/p>\n
10.          The workman could not have any relief before the Court for<\/p>\n
all that the workman was complaining was that his termination was<\/p>\n
illegal. It was not, for, if he had not put in for 240 days of continuous<\/p>\n
service, a non-compliance of Section 25-F did not arise. If the manner of<\/p>\n
engagement in various short spells were to be treated as unfair labour<\/p>\n
practice, the justification was explained by the management-witness by<\/p>\n
having to continue with the system of coping with regular absenteeism of<\/p>\n
permanent workman and keeping a roster of temporary workers who<\/p>\n
could be accommodated to fill up such vacancies and to prevent the<\/p>\n
working chain from being broken. The demand of the workman was not<\/p>\n
justified and the reference answered in his favour by the Labour Court<\/p>\n
was also not tenable.\n<\/p>\n
9.           The award of the Labour Court is set aside and the writ<\/p>\n
petition is allowed. There shall be, however, no directions as to costs.<\/p>\n
\n\n\n\n                                                          (K.KANNAN)\n15.10.2009                                                  JUDGE\nsanjeev\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court M\/S Bhiwani Textile Mills vs Presiding Officer on 15 October, 2009 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-206137","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nM\/S Bhiwani Textile Mills vs Presiding Officer on 15 October, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ms-bhiwani-textile-mills-vs-presiding-officer-on-15-october-2009-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"M\/S Bhiwani Textile Mills vs Presiding Officer on 15 October, 2009 - 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