JUDGMENT Rakesh Tiwari, J.
1. Heard learned Counsel for the parties and perused the record. This writ petition has been filed against the impugned award dated 24.11.98 passed by the Central Government Industrial Tribunal-cum-Labour Court, Pandu Nagar, Kanpur, hereinafter referred to as CGIT, Kanpur, in Industrial Dispute No. 141 of 1998 which has been enforced on 21.12.98 by publication on the Notice board.
2. By the impugned award the CGIT has held that termination of services of the workman by the employer are illegal and order reinstatement in service without back wages.
3. It appears that services of the workman were retrenched w.e.f. 1.8.87 without any notice or payment of retrenchment compensation as contemplated under Section 25 F of the Industrial Disputes (Central) Act, 1947.
4. An industrial dispute was raised by the workman before the Assistant Labour Commissioner, Kanpur. On conciliation proceedings having failed, the following matter of dispute was referred to the Central Government Industrial Tribunal-cum-Labour Court, Pandu Nagar, Kanpur for adjudication where it was registered as Industrial Dispute No. 141 of 1998.
Whether the action of Station Director, All India Radio Kanpur, is legal and justified in terminating the services of Sri Shambhoo Dayal son of late Bameshwar w.e.f. 1.8.87 if not to what relief the workman is entitled?
5. The only point that has been pressed by learned Counsel for the petitioner is that CGIT, Kanpur has wrongly come to a finding that the workman had not worked for more than 240 days continuously in the establishment. In this regard he has placed reliance upon a chart appended to the writ petition as Annexure-4 for establishing the number of actual working days of the workman which is as under:
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6. In support of his aforesaid submission, learned Counsel for the petitioner has also placed reliance upon the following rulings.
1. AIR 2006 Supreme Com 1-2427, Haryana State Electronics Development Corporation Ltd. v. Mamni; and
2. Union of India and Anr. v. Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court and Anr.
7. In the case of Haryana State Electronics Development (Supra) the respondent workman was appointed initially for a period of 89 days on the post of Junior Technician (Electronics) on an hoc basis on or about 31.10.1990. The post was purely temporary and her services were liable to be terminated without assigning any reason or notice. The services of the respondent workman were terminated on regular basis on expiry of 89 days followed by re-appointment after one or two days. The workman approached the Labour Court. The Labour Court by the award reinstated him in service with full back wages on the premise that she had completed 240 days of work during the period of twelve months and in view of the fact that the conditions laid down under Section 25-F of the Industrial Disputes Act had not been complied with. Aggrieved by the said award the appellant Corporation filed writ petition before the High Court which was dismissed. Thereafter the department approach the Hon'ble Apex Court. In the circumstances, the Apex Court held the respondent shall have no claim for regular appointment having worked with the appellant Corporation and reinstatement of the respondent workmen in service was not proper and directed payment of lump sum compensation of Rs. 25,000/-.
8. In the case of Union of India and Anr. (supra) the workman was engaged as casual labour in the office of Management of Sub-Division Telgraph, Mainpuri and when the job came to an end his services were terminated. He approached the Labour Court. The Labour Court held that as the workman had worked for 339 days continuously, hence he was entitled to the protection of Section 25-F of the Industrial Disputes Act and as no compensation and salary etc. was given in terms of the said Section, hence retrenchment was bad and directed reinstatement with full back wages. Aggrieved the department filed the writ petition before the High Court. The writ petition was allowed and the award was modified and it was directed that instead of reinstatement with full back wages, the petitioner shall pay Rs. 25,000/- as consolidated damages to respondent No. 2 workman within three months from today failing which interest at the rate of 1% per month until actual payment shall also be payable.
9. In the instant case the workman was appointed on the post of Faras in Vigyapan Prasaran Sewa All India Radio, Kanpur on daily wages basis. He had worked continuously for more than 240 days. His services were terminated w.e.f. 1.8.87. He approach the Labour Court and by its impugned award the workman was reinstated in service but without back wagers as he was a daily wager, hence the aforesaid rulings cited by the learned Counsel for the petitioner are not applicable to the facts of the present writ petition.
10. The relevant extract of the award is as under:
4. In the first place it will be seen if the opposite party All India Radio is an industry. There is case of All India Radio v. Santosh Kumar 418(78) FLR 914 SC in which it has been finally held by the Hon'ble Supreme Court that All India Radio and Doordarshan are Industry. In view of this authority this objection is overruled.
5. Now it will be seen if the concerned workman has completed 240 days in a year. In this regard there is uncross-examined evidence of the W.W. 1 Shainbhu Dayal. Documents filed by the concerned workman do not render any assistance to him as they are in the nature of school leaving certificates and copies of correspondence. Any how in my opinion, the case of the concerned workman should be believed as it is supported by uncross-examined evidence. Apart from this the opposite party All India Radio is in possession of all documents like muster roll attendance sheet by which the number of working days would have been confirmed. The opposite party admittedly has not filed any documents and in such a case adverse inference has to be drawn against them. Hence I believe the version of the concerned workman and hold that he had completed 240 clays in a year.
6. Admittedly no retrenchment compensation and notice pay was paid to him at the time of his retrenchment, hence his retrenchment is bad in law being in breach of provisions of Section 25-F of I.D. Act.
7. I am not inclined to believe the version of the workman that there had been breach of provisions of Section 25G and H of I.D. Act as particulars were not given in the claim statement.
8. As regards delay there is evidence of the concerned workman as well as evidence lead by the workman show that he had making repeated request and assurance was given by the opposite party to look into the matter, this matter was kept pending because of the fault of the opposite party in this delay has been explained.
9. In the end my award is that the termination of the workman is bad being in breach of provisions of Section 25F of I.D. Act and the workman is entitled for reinstatement but without back wages as he was admitted a daily rated employee.
Let six copies be sent to the Government for its publication in the Gazette of India.
No other point has been argued.
11. It appears from perusal of the impugned award that the workman had entered the witness box and had given oral evidence to the effect that he had put in more than 240 days of continuous service in the establishment as defined in the Act. He was neither cross-examined by the employer on this point, nor any evidence was filed by the employer in support of their case that the workman had not actually worked for 240 days or more in any year in this establishment during which he was in their employment, hence his examination-in-chief remain unrebutted on this score.
12. The Industrial Tribunal on these facts has recorded a finding of fact that neither the petitioner had cross-examined the workman nor had filed any document in support of his case to prove that the workman had not worked for more than 240 days, hence disbelieved the case of the employer by drawing adverse inference and believed the version of the workman and held that as the services of the workman had been terminated without complying with the mandatory provisions of Section 25-F of the Act relating to payment of retrenchment compensation.
13. On the aforesaid findings the Labour Court held that the termination of the services of the workman were illegal and he was entitled for the relief of reinstatement but without back wages as admittedly he was a daily wager.
14. Aggrieved by the impugned award dated 24.11.98 the petitioner filed the present writ petition in which the following interim order was passed on 15.3.99.
Heard learned Counsel for the petitioner. The validity of the award made under the Industrial Disputes Act, 1947 (Central) has been challenged in this writ petition. A fine point of controversy has been raised requiring scrutiny by this Court.
Issue notice to the respondents for which steps shall be taken in accordance with provisions contained in the Rules of the Court within one week. Respondents be called upon to file counter affidavit within six weeks. List thereafter.
In the mean time, the enforcement of the impugned award shall remain stayed provided:
1) the back wages to the extent of 50 per cent payable under the award arc deposited with the concerned Industrial Tribunal-cum-Labour Court within two months from today.
2) a sum equal to wages payable to the workman from the date of the award till the last preceding month is paid to the respondent workman within two months from today; and;
3) wages at the rate admissible under Section 17-B of the Industrial Disputes Act, 1947 for the succeeding months shall be paid to the respondent-workman, month by month basis till further orders of this Court.
The hack wages so deposited, in terms of this order, shall be invested in some Nationalized Bank by the concerned Industrial Tribunal-cum-Labour Court under an interest term deposit scheme. This deposit shall be subject to the ultimate decision of this petition.
In the event of default in complying with any of the aforementioned conditions, the present stay order shall automatically come to an end and award in question shall become enforceable and recovery proceedings, if any, shall revive.
15. Admittedly, the Industrial Tribunal has not granted any back wages to the workman who was a daily wager, hence condition No. 1 of the aforesaid interim order dated 15.3.99 was not applicable in that case. As regards condition Nos. 2 and 3 of the aforesaid interim order the parties agree that the compliance has been made.
16. After hearing learned Counsel for the parties and on perusal of the record I am of the opinion that there is no illegality or infirmity in the impugned award as the workman was neither cross-examined by the employer on the point that he had not worked for more than 240 days nor the employer had submitted any proof or document to the contrary to establish that the workman had not worked for more than 240 days.
17. As regards annexure-4 which has been appended with this writ petition it was not filed before the Labour Court, hence no reliance can be placed upon it in the writ petition for the purpose of considering the validity and correctness of the award passed by the Labour Court.
18. Even otherwise, from the chart appended to the writ petition it is clear that the number of days on which the workman is said to have been working from the date of his termination would show that he has worked for more than 240 days in a year.
19. It may also be noted that the employer has neither cross-examined the workman on oath nor had given any oral statement before the CGIT, Kanpur. Even no documentary evidence was filed and produced before the Court below by the employer in support of its case.
20. For the reasons stated above, the writ petition is dismissed. No order as to cost.