MAHESH Vs. PRESIDING OFFICER, LABOUR COURT-III

JUDGEMENT

(1.) THE award in challenge is a rejection of the reference sought at the instance of the workman that he had been illegally terminated from service in April, 1994. The actual month of termination assumed significance in this case, for, that had a bearing on the number of days of continuous service. The workman had originally contended that he had been working as a daily wager in the PWD Provincial Division, Faridabad, from 1982 and his services were terminated in March, 1994. The reference to March, 1994 in demand notice was however altered in the claim statement when he said that he was terminated in April, 1994. The PWD Department joined issue on the actual date of termination, filed a written statement contending that they had not terminated the services, but on the other hand, he did not come present in April and May, 1994 and that there was no termination.

(2.) BEFORE the Labour Court, the evidence which was tendered by the workman again was in conformity with what he had stated in the claim statement when he said that he had been terminated in April, 1994. It was also elicited in the cross -examination that he did not work in May, 1994 and that he was not given any appointment letter. It was suggested that the workman had not completed 240 days. On the side of the management, Shri K.K. Gupta, SDO had been examined when he said for the first time that he remained absent in April and May, 1994, but he came for work for 7 days in June, 1994. He also produced Ex.M -8 to M -10 which purported to contain the details that he worked till June, 1994 and that if reckoning was to be made for 12 months prior to June, 1994, it was seen that he had worked only for 231 days. The Labour Court noticed the variations made in the demand notice and the claim statement of the workman regarding the period of termination and reasoned that he had no consistent stand, looked to the evidence of the management and held that the workman should have worked also in June as the muster roll showed and found that the workman had not completed 240 days. It is axiomatic that evidence shall follow pleadings and therefore, the correctness of the contentions of the party shall be tested on such pleadings. The Court shall apply this principle on even scares to both parties. If the Court could find that there was a variation in the workman's contention in the demand notice and in the pleadings namely, the inconsistency as to whether the termination took effect in March, 1994 or April, 1994, the Court could have accepted the contention of the management if the proof was made to what the management was saying through its pleadings. Consequently, if the management was contending in the written statement that the workman had not been terminated either in March or April and if the management had a definite contention to make that he was terminated only in June, 1994, it could have perhaps come to a conclusion on such evidence rendered by the management. In this case, the Labour Court had opted to refer to a document produced by the management that the workman had worked in June, 1994 for seven days and took that date as the correct date of termination. It was not the contention of the management at any time in the pleadings or even at the time when the workman had tendered evidence that he was terminated only in June, 1994. It was not even suggested to him in the crossexamination that he had worked in June, 1994 also. The production of a document that he had worked for 7 days in June was literally a surprise at the trial and an attempt by the management which was at variance with their own pleadings. As I have observed, if the workman's contention for any inconsistency was to be rejected, the Court could have relied on what was tenable by statement made by the management. It could have picked up any evidence which was in conformity with such pleadings. The ultimate finding of the Labour Court was de hors pleadings of both the parties. It could be only the workman in all cases to be interested in showing that he had completed 240 days and for a management to be interested in denying the entitlement of the workman to say that he had worked for 240 days. But this must be on acceptable evidence based on the pleadings of parties and cannot be done whimsically to dis -entitle a workman to claim the benefits which he is making. It will be impermissible for the management to contend that the workman had been working on any day subsequent to the date where he alleged that he was terminated, so long as there was no pleadings to that effect. I, therefore, set aside the findings of the Labour Court that the workman had been terminated only in June, 1994 and that he had not worked for 240 days. It is accepted on all fours that if the reckoning was to be done only in April, 1994, he had 240 days of continuous service. It is again an admitted fact that there had been no compliance of Section 25 -F and consequently, the termination which was effected in April, 1994 without complying with the terms of Section 25 -F, is not in accordance with law.

(3.) THE workman has not stated anything about whether he had been in any gainful employment or not. The Hon'ble Supreme Court has recorded a shift in emphasis emerging as a judicial trend to look to whether the workman had pleaded for proof of his entitlement to back wages. The termination is said to have been effected in April, 1994 i.e. nearly 15 years prior to the date when the adjudication has finally been undertaken before this Court. The interest of justice, in my view, would be best satisfied if 25% of back wages is accorded to the workman.