{"id":44272,"date":"2009-02-18T00:00:00","date_gmt":"2009-02-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/panipat-co-operative-sugar-mills-vs-the-presiding-officer-on-18-february-2009"},"modified":"2018-03-15T21:35:48","modified_gmt":"2018-03-15T16:05:48","slug":"panipat-co-operative-sugar-mills-vs-the-presiding-officer-on-18-february-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/panipat-co-operative-sugar-mills-vs-the-presiding-officer-on-18-february-2009","title":{"rendered":"Panipat Co-Operative Sugar Mills … vs The Presiding Officer on 18 February, 2009"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Panipat Co-Operative Sugar Mills … vs The Presiding Officer on 18 February, 2009<\/div>\n
       IN THE HIGH COURT OF PUNJAB AND HARYANA\n                    AT CHANDIGARH\n\n                                          C.W.P. No. 10146 of 2006.\n                                   Date of Decision : February 18, 2009.\n\n\nPanipat Co-operative Sugar Mills Limited, Panipat.         ...... Petitioner.\n\n                                  Versus.\n\n\nThe Presiding Officer, Industrial Tribunal-cum-\nLabour Court, Panipat, and another.                       ...... Respondents.\n\n\nCORAM:HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH.\n\n\nPresent:    Mr. Kulvir Narwal, Advocate,\n            for the petitioner.\n\n            Ms. Abha Rathore, Advocate,\n            for the respondent No. 2.\n\n\nAUGUSTINE GEORGE MASIH, J.\n<\/pre>\n
            In the present writ petition, the challenge is to the award dated<\/p>\n
01.02.2006 (Annexure-P-3), passed by the Industrial Tribunal-cum-Labour<\/p>\n
Court, Panipat, vide which the reference has been answered in favour of the<\/p>\n
workman holding him entitled to reinstatement with continuity of service<\/p>\n
and full back wages from the date of demand notice i.e. 14.05.1998.<\/p>\n
            Counsel for the petitioner contends that the workman has not<\/p>\n
been able to prove that he has completed 240 days in the 12 preceding<\/p>\n
months from the date of his termination and the Labour Court has wrongly<\/p>\n
included Sundays to hold him entitled to the benefit of Section 25-F of the<\/p>\n
Industrial Disputes Act, 1947. It is not in dispute that the workman has<\/p>\n
completed 216 days with the petitioner-management and the relevant
\n C.W.P. No. 10146 of 2006.                                             -2-<\/span><\/p>\n
records were produced by the petitioner-management which has not been<\/p>\n
disputed by the respondent-workman. Since the respondent-workman has<\/p>\n
worked for only 216 days, therefore, the award which has been passed in<\/p>\n
favour of the respondent-workman cannot be sustained and deserves to be set<\/p>\n
aside.\n<\/p>\n
            He further contended that the respondent-workman was<\/p>\n
appointed on daily wage basis and therefore, did not have any right to the<\/p>\n
post. He further contended that the respondent-workman had been appointed<\/p>\n
as and when the requirement arose and therefore, cannot be said to be<\/p>\n
regularly appointed.\n<\/p>\n
            On the other hand, counsel for the respondent-workman<\/p>\n
contended that the actual working days of the workman comes to 216 days,<\/p>\n
however, Sundays and other gazetted holidays are required to be taken into<\/p>\n
account while counting, and to come to a conclusion whether the respondent-<\/p>\n
workman has completed 240 days in the 12 preceding months as has been<\/p>\n
held by Hon’ble the Supreme Court in the case of Workman of American<\/p>\n
Express International Banking Corporation Versus Management of<\/p>\n
American Express International Banking Corporation, A.I.R. S.C. 1986.<\/p>\n
The present case is covered against the petitioner by the Division Bench of<\/p>\n
this Court in the case of Executive Engineer, P.W.D., Public Health<\/p>\n
Division, Narnaul Versus Rajbir Singh and another, (C.W.P. No. 6183 of<\/p>\n
2004), decided on 24.08.2005.\n<\/p>\n
            I have heard counsel for the parties and have gone through the<\/p>\n
records of the case. The question which needs to be decided in the present<\/p>\n
case is whether Sundays\/rest days are to be counted while calculating
\n C.W.P. No. 10146 of 2006.                                               -3-<\/span><\/p>\n
whether the respondent-workman has completed 240 days in the 12<\/p>\n
preceding months from the date of his termination.\n<\/p>\n
            Counsel for the petitioner has basically tried to distinguish the<\/p>\n
Judgment of Division Bench of this Court in Executive Engineer, P.W.D.,<\/p>\n
Public Health Division, Narnaul’s case (supra), on the ground that the said<\/p>\n
case was one where the workman was appointed on monthly salary and<\/p>\n
therefore, though this Court has basically relied on the Judgment of Hon’ble<\/p>\n
the Supreme Court in Workman of American Express              International<\/p>\n
Banking Corporation Versus           Management of American Express<\/p>\n
International Banking Corporation’s (supra), but has taken into<\/p>\n
consideration the Minimum Wages Act, 1948, and the Punjab Minimum<\/p>\n
Wages Rules, 1950, and granted the benefit to the workman holding him<\/p>\n
entitled to paid rest days while calculating the number of working days in<\/p>\n
terms of Section 25-B of the Industrial Disputes Act. He submitted that the<\/p>\n
present case is one where the workman was appointed on daily wage basis<\/p>\n
and was paid as per the days he worked. He further relied upon the proviso<\/p>\n
to Rule 23 (4) of the Punjab Minimum Wages Rules, 1950, which has been<\/p>\n
relied upon by the Division Bench of this Court to state that where the<\/p>\n
minimum daily rate of wages of the employee as notified under the Minimum<\/p>\n
Wages Act, has been worked out by dividing the minimum monthly rate of<\/p>\n
wages by twenty six or where the actual daily rate of wages of the employee<\/p>\n
has been worked out by dividing the monthly rate of wages by twenty six<\/p>\n
and such actual daily rate of wages is not less than the notified minimum<\/p>\n
daily rate of wages of the employee, no wages for the rest day shall be<\/p>\n
payable. He on this basis contends that since the minimum daily rate of<\/p>\n
wages was based on this principle, the workman was not entitled to payment
\n C.W.P. No. 10146 of 2006.                                                -4-<\/span><\/p>\n
of rest day, and therefore, rest day cannot be termed as paid rest day which<\/p>\n
could be included while computing 240 days under Section 25-B of the<\/p>\n
Industrial Disputes Act. In any case, he submitted that no evidence has been<\/p>\n
led before the Labour Court that minimum wages were not paid nor has it<\/p>\n
been said that he was being given the benefit of rest days and was paid for<\/p>\n
the rest days and it was a question of fact which can now not be agitated<\/p>\n
before this Court. He further contended that in view of there being no<\/p>\n
evidence to this effect before the Labour Court, the conclusion derived by<\/p>\n
the Labour Court was not sustainable.\n<\/p>\n
             The contentions as raised by counsel for the petitioner cannot be<\/p>\n
accepted. It is an admitted position before the Labour Court by the petitioner<\/p>\n
and has come in the statement of Chander Parkash, Time Keeper, who had<\/p>\n
appeared as W.W.3 and had brought the summoned records which showed<\/p>\n
and proved the working days details which has been placed on record as<\/p>\n
Ex.W.3\/A. He has stated in his statement that the weekly rests were not<\/p>\n
included nor other gazetted holidays were included in the working days<\/p>\n
details given in Ex. W.3\/A, which shows that in the 12 preceding months<\/p>\n
from the date of termination of the respondent-workman, the workman had<\/p>\n
worked for 216 days continuously. It is further conceded position by counsel<\/p>\n
for the petitioner that if rests days are included, the respondent-workman<\/p>\n
would complete more than 240 days. It is also an admitted position in the<\/p>\n
statement given by Radhu Ram, Clerk of the Sugarmill, Panipat, who<\/p>\n
appeared as M.W.2 who has stated that the respondent-workman was not<\/p>\n
given any notice, pay in lieu of notice and retrenchment compensation before<\/p>\n
termination of his services.\n<\/p>\n
 C.W.P. No. 10146 of 2006.                                                -5-<\/span><\/p>\n
            That being the position, the submission of counsel for the<\/p>\n
petitioner cannot be accepted in the light of the Judgment passed by the<\/p>\n
Division Bench of this Court in Executive Engineer, P.W.D., Public Health<\/p>\n
Division, Narnaul Versus Rajbir Singh and another’s case (supra), and<\/p>\n
Hon’ble the Supreme Court in            Workman of American Express<\/p>\n
International Banking Corporation Versus Management of American<\/p>\n
Express International Banking Corporation’s case (supra). There can be<\/p>\n
no conclusion except that the rest days would be counted for the purpose of<\/p>\n
computing 240 days in 12 calendar months preceding his retrenchment. The<\/p>\n
Division Bench of this Court relying on the observations of Hon’ble the<\/p>\n
Supreme Court while considering the provisions of Payment of Wages Act,<\/p>\n
has held as follows :-\n<\/p>\n
            ”      It is the submission of learned counsel for the respondent-<\/p>\n
            workman, that even if it is taken as correct, that the respondent-<\/p>\n
            workman rendered 26 days service in every month, during the 8<\/p>\n
            months, during which he is acknowledged to have rendered<\/p>\n
            service under the petitioner-management, he must be deemed to<\/p>\n
            have been paid wages for the four compulsory rest days falling<\/p>\n
            in each of the said months.        On the basis of the instant<\/p>\n
            submissions learned counsel for the respondents-workman<\/p>\n
            wishes to conclude that the workman must be deemed to have<\/p>\n
            rendered 30 days of service in each of the 8 months during<\/p>\n
            which he is stated to have rendered service under the petitioner-<\/p>\n
            management.<\/p>\n
                         We have perused the Rule 23(4) of the Punjab<\/p>\n
            Minimum Wages Rules, 1950. We are satisfied that in spite of
\n C.W.P. No. 10146 of 2006.                                              -6-<\/span><\/p>\n
           the fact that the respondent-workman rendered only 26 days<\/p>\n
           service in the 8 calendar months depicted in the compilation<\/p>\n
           extracted above, he was liable to be paid for four rest days in<\/p>\n
           each of the said months, under Rule 23(4) (i.e. 1 day for<\/p>\n
           rendering service for 5 days), subject to the condition that the<\/p>\n
           respondent-workman      was    employed    in   a    “Scheduled<\/p>\n
           Employment”. In order to substantiate that the respondent-<\/p>\n
           workman was engaged in a scheduled employment, our<\/p>\n
           attention has been invited to the Schedule appended to the<\/p>\n
           Rules, wherein, the Public Works Department (Public Health) is<\/p>\n
           included. As such, we have no hesitation in arriving at the<\/p>\n
           conclusion that the respondent-workman was paid and \/ or<\/p>\n
           liable to be paid for rest days during the months he has<\/p>\n
           rendered service with the petitioners-management.<\/p>\n<\/blockquote>\n
                       The question that has to be adjudication upon now<\/p>\n
           is whether the days on which, the respondent-workman did not<\/p>\n
           render service but was paid for, have to be included while<\/p>\n
           computing 240 days, under Section 25-B of the Act. In so far as<\/p>\n
           the instant issue is concerned, the matter has been adjudicated<\/p>\n
           upon by the Supreme Court in Workman of American Express<\/p>\n
           International Banking Corporation Versus Management of<\/p>\n
           American Express International Banking Corporation, A.I.R.<\/p>\n
           1996 Supreme Court 458, wherein it had been held as under :-<\/p>\n<\/blockquote>\n
               ”      Section 25-F of the Industrial Disputes Act is plainly<\/p>\n
               intended to give relief to retrenched workmen.           The<\/p>\n
               qualification for relief under S.25-F is that he should be a
\n C.W.P. No. 10146 of 2006.                                            -7-<\/span><\/p>\n
               workman employed in an industry and has been in<\/p>\n
               continuous service for not less than one year under an<\/p>\n
               employer. What is continuous service has been defined<\/p>\n
               and explained in S. 25-F of the Industrial Disputes Act. In<\/p>\n
               the present case, the provisions which is of relevance is<\/p>\n
               S.25-B(2)(a)(ii) which to the extent that it concerns us,<\/p>\n
               provides that a workman who is not in continuous service<\/p>\n
               for a period of one year shall be deemed to be in<\/p>\n
               continuous service for a period of one year if the workman,<\/p>\n
               during a period of twelve calendar months preceding the<\/p>\n
               date with reference to which the calculation is to be made,<\/p>\n
               has actually worked under the employer for not less than<\/p>\n
               240 days.      The expression which we are required to<\/p>\n
               construe is ‘actually worked under the employer’.      The<\/p>\n
               expression, according to us, cannot mean those days only<\/p>\n
               when the workman worked with hammer, sickle or pen, but<\/p>\n
               must necessarily comprehend all those days during which<\/p>\n
               he was in the employment of the employer and for which he<\/p>\n
               has been paid wages either under express or implied<\/p>\n
               contract of service or by compulsion of statute, standing<\/p>\n
               orders, etc.    The learned counsel for the Management<\/p>\n
               would urge that only those days which are mentioned in<\/p>\n
               the Explanation to S. 25-B(2) should be taken into account<\/p>\n
               for the purpose of calculating the number of days on which<\/p>\n
               the workman had actually worked though he had not so<\/p>\n
               worked and no other days. We do not think that we are
\n C.W.P. No. 10146 of 2006.                                             -8-<\/span><\/p>\n
               entitled to so constrain the construction of the expression<\/p>\n
               ‘actually worked under the employer’. The explanation is<\/p>\n
               only clarificatory, as all explanations are, and cannot be<\/p>\n
               used to limit the expanse of the main provision. If the<\/p>\n
               expressions ‘actually worked under the employer’ is<\/p>\n
               capable of comprehending the days during which the<\/p>\n
               workman was in employment and was paid wages – and we<\/p>\n
               see no impediment to so construe the expression- there is<\/p>\n
               no reason why the expression should be limited by the<\/p>\n
               explanation. To give it any other meaning then what we<\/p>\n
               have done would bring the object of S. 25-F very close to<\/p>\n
               frustration.”<\/p><\/blockquote>\n<\/blockquote>\n
\n<\/blockquote>\n
                 In view of the above, we have no hesitation in arriving at<\/p>\n
           the conclusion that the number of rest days for which the<\/p>\n
           employee had been paid, is liable to be included in the number<\/p>\n
           of working days while calculating 240 days service in terms of<\/p>\n
           Section 25-B of the Act. If that is to be done the respondent-<\/p>\n
           workman is entitled to a paid rest day after completing five<\/p>\n
           working days. Since, it is not a matter of dispute, on the basis<\/p>\n
           of compilation extracted above, that the respondent-workman<\/p>\n
           rendered service for 208 days, he would be entitled to 35 rest<\/p>\n
           days as well as wages for the same. It is, therefore, clear that<\/p>\n
           the respondent-workman has been paid for 208+35 = 243 days<\/p>\n
           in the 12 calendar months, preceding his retrenchment. In view<\/p>\n
           of the decision rendered by the Supreme Court in Workman<\/p>\n
           American Express International Banking Corporation Versus
\n C.W.P. No. 10146 of 2006.                                                -9-<\/span><\/p>\n
            Management of American Express International Banking<\/p>\n
            Corporation’s case       (supra), we are satisfied that the<\/p>\n
            respondent-workman       fulfilled   the   minimum    mandatory<\/p>\n
            requirement of 240 days in the 12 calendar months preceding<\/p>\n
            his retrenchment, and as such, was entitled to all the benefits of<\/p>\n
            retrenchment delineated under Section 25-F of the Act. Since<\/p>\n
            the petitioner was neither issued any notice before his<\/p>\n
            retrenchment nor paid compensation in lieu of the notice<\/p>\n
            period, and further more, since he was not paid any<\/p>\n
            retrenchment compensation under Section 25-F of the Act, we<\/p>\n
            are satisfied, that the termination of the services of the<\/p>\n
            respondent-workman in October, 1993 was in clear violation of<\/p>\n
            the mandate of Section 25-F of the Act.\n<\/p><\/blockquote>\n
                  In view of the above, we find merit in the contentions<\/p>\n
            advanced by the learned counsel for the respondent-workman,<\/p>\n
            and no infirmity in the award of the Labour Court.”<\/p><\/blockquote>\n
            In view of the authoritative decision of this Court, the present<\/p>\n
case is fully covered by abovementioned Division Bench Judgment of this<\/p>\n
Court and I see no reason for taking a different view than has been held by<\/p>\n
this Court. The distinction tried to be drawn by counsel by the petitioner<\/p>\n
does not have any bearing in the present case in view of Rule 23 (4) of the<\/p>\n
Punjab Minimum Wages Rules, 1950, as interpreted by this Court. To this<\/p>\n
extent that the workman has completed 240 days in the last preceding 12<\/p>\n
months from the date of his termination is upheld and so is it upheld that the<\/p>\n
provisions of Section 25-F of the Industrial Disputes having not been
\n C.W.P. No. 10146 of 2006.                                               -10-<\/span><\/p>\n
complied with, the workman is entitled to reinstatement in service with<\/p>\n
continuity thereof.\n<\/p>\n
             In any case a finding has been returned by the Labour Court that<\/p>\n
the provisions of Section 25-G of the Industrial Disputes Act has been<\/p>\n
violated as the principle of last come first go has not been complied with by<\/p>\n
the petitioner while terminating the services of the respondent-workman.<\/p>\n
This finding has been recorded by the Labour Court on the basis of the<\/p>\n
evidence which has come in the form of statement of Om Parkash workman<\/p>\n
who appeared as W.W.1 wherein he has stated that one Shri Harbans Lal<\/p>\n
who is junior to him is still working with the petitioner at the time of his<\/p>\n
termination. Ram Mehar who appeared as M.W.1 has not denied that Shri<\/p>\n
Harbans Lal who is an ex-serviceman, and is junior to the respondent-<\/p>\n
workman is working as a Security Guard. He has not denied the suggestion<\/p>\n
made to him that the said Harbans Lal is junior to the respondent-workman.<\/p>\n
In view of the violation of provisions of Section 25-G of the Industrial<\/p>\n
Disputes Act, the respondent-workman would be entitled to reinstatement<\/p>\n
with continuity of service irrespective of the fact whether the respondent-<\/p>\n
workman has completed 240 days in the 12 preceding months from the date<\/p>\n
of his termination. That being so, the award passed by the Labour Court,<\/p>\n
cannot be set aside.\n<\/p>\n
             A perusal of the award also does not indicate that the<\/p>\n
respondent-workman had not been gainfully employed after his termination<\/p>\n
of service. Counsel for the petitioner further contends that the onus of<\/p>\n
proving that the workman has not been gainfully employed from the date of<\/p>\n
his termination is on the workman himself. He relies upon the Judgment of<\/p>\n
Hon’ble the Supreme Court in the case of R.B.I. Versus S. Mani, 2005 (5)
\n C.W.P. No. 10146 of 2006.                                                  -11-<\/span><\/p>\n
S.C.C. 100. A perusal of the demand notice in the present case, which has<\/p>\n
been appended as Annexure-P-1, clearly indicates that the respondent-<\/p>\n
workman had stated in para-7 thereof that the applicant tried his best to get<\/p>\n
the job again but all in vain.\n<\/p>\n
             In the present case an affidavit dated 12.08.2006 has been filed<\/p>\n
by the workman-respondent No. 2 stating there in para-5 that he is not<\/p>\n
gainfully employed in any factory or establishment.         He has kept 2\/3<\/p>\n
buffaloes and sustains himself and his family by selling milk. The said<\/p>\n
assertion in the affidavit by the respondent-workman has not               been<\/p>\n
controverted by the petitioner, therefore, the impugned award is modified to<\/p>\n
the extent that the workman would be entitled to 40% back wages from the<\/p>\n
date of demand notice i.e. 14.05.1998 instead of full back wages as granted<\/p>\n
by   the    Labour     Court,    vide   impugned    award dated 01.02.2006<\/p>\n
(Annexure-P-3).\n<\/p>\n
             The present writ petition is partly allowed in above terms.<\/p>\n
                                        (AUGUSTINE GEORGE MASIH)
\n                                                 JUDGE
\nFebruary 18, 2009.\n<\/p>\n
sjks.<\/p>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Panipat Co-Operative Sugar Mills … vs The Presiding Officer on 18 February, 2009 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 10146 of 2006. Date of Decision : February 18, 2009. Panipat Co-operative Sugar Mills Limited, Panipat. …… Petitioner. Versus. The Presiding Officer, Industrial Tribunal-cum- Labour Court, Panipat, […]<\/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-44272","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nPanipat Co-Operative Sugar Mills ... vs The Presiding Officer on 18 February, 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\/panipat-co-operative-sugar-mills-vs-the-presiding-officer-on-18-february-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Panipat Co-Operative Sugar Mills ... vs The Presiding Officer on 18 February, 2009 - 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