DIVISIONAL FOREST OFFICER, SOCIAL FORESTRY DIVISION NOW THE DIVISIONAL FOREST OFFICER (TERRITORIAL) Vs. PRESIDING OFFICER, INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,; SH ISHWAR AND ANR ; NIRMALA AND ANR AND SHRI JAGBIR SINGH AND ANR

JUDGEMENT

(1.) By this Order, I propose to dispose of C. W.P. No. 2605 of 2009 titled as The Divisional Forest Officer, Social Forestry Division, Bhiwani now the Divisional Forest Officer (Territorial), Bhiwani v. The Presiding Officer, Labour Court, Rohtak, and Anr., C. W.P. No. 3252 of 2009 titled as The Divisional Forest Officer (Territorial), Bhiwani v. Sh. Ishwar and Anr. C.W.P. No. 4359 of 2009 titled as Divisional Forest Officer (Territorial), Rohtak v. Smt. Nirmala and Anr. and C. W.P. No. 2665 of 2009 titled as Divisional Forest Officer (Territorial), Rohtak v. Shri Jagbir Singh and Anr., as counsel for the parties have stated that common questions of law and the pleadings involved in the present writ petitions are same. In these writ petitions, the challenge has been put to the Award passed by the Industrial Tribunal-cum-Labour Court, Rohtak, vide which the references had been answered in favour of the Worklady/Workman, holding them entitled to reinstatement in service with continuity thereof and 50% back wages from the date of demand notice.

(2.) Counsel for the petitioner has, while referring to the facts in C.W.P. No. 2605 of 2009 submitted that the respondent/Worklady as per her assertion before the Labour Court, was appointed as a Beldar-cum-Mali on daily wage basis on 15.07.1985 and continued to work with the petitioner/Management till 31.03.2000. The respondent/Worklady was terminated from service on 01.04.2000 without any notice or notice pay nor retrenchment compensation was paid to her in violation of Section 25F of the Industrial Disputes Act, 1947, (hereinafter referred to as "the Act"). On the basis of these assertions, the demand notice was preferred by the respondent/Worklady on 13.11.2000 (Annexure-P-2). As the petitioner/Management could not produce the records as summoned by the Labour Court on an application moved by the respondent/Worklady and it was stated by WW-2/Ramesh Kumar, o/o DFO Bhiwani, that he could not find the records summoned despite search nor could he produce the same in future, the Labour Court had proceeded to draw an adverse inference against the petitioner/Management and held that the respondent/Worklady had continuously worked from 15.07.1985 to 31.03.2000 and as the Management Witness had not disputed that no notice was served or notice pay paid nor retrenchment compensation was paid to her at the time of termination, thus, there was violation of the provisions of Section 25F of the Act. Since there was non compliance of the provisions of Section 25F of the Act, the respondent/Worklady was held entitled to reinstatement in service with continuity thereof and 50% back wages from the date of demand notice, i.e., dated 13.11.2000 (Annexure-P-2). On the passing of the Award, the same having not been found to in accordance with law, the present writ petition has been preferred by the petitioner.

(3.) Counsel for the petitioner contends that the appointment of the respondent/Worklady was de hors the statutory Rules, governing the service and in violation of Articles 14 and 16 of the Constitution of India and, therefore, the respondent/Worklady was not entitled to reinstatement in service on the previous past with continuity thereof. His submission is that even if the adverse inference, as had been drawn by the Labour Court, is taken to be in accordance with law as the petitioner/Management had failed to produce the summoned records, which were relevant for the adjudication of the case, but still for claiming reinstatement in service, the respondent/Worklady was required to contend that the work still existed and since no such assertion had been made by the respondent/Worklady in her demand notice or claim statement, no reinstatement in service could have been granted by the Labour Court. He contends that merely because Section 25F of the Act had been violated by the petitioner/Management would not ipso facto entitle the respondent/Worklady to be reinstated in service. For reinstatement, the Labour Court was required to go into the nature of the appointment, the availability of the post as also the availability of the work with the petitioner/Management, which factors have not been taken into consideration by the Labour Court in reinstating the respondent/Worklady. Even if the termination of the services of the respondent/Worklady was not in accordance with the provisions of Section 25F of the Act, the respondent/Worklady at the most would be entitled to compensation for the period she had put in work with the petitioner/Management.