State Of Haryana vs Ramesh Kumar

State of Haryana ...Appellant

Versus

Ramesh Kumar ... Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the order passed by a

Division Bench of the Punjab and Haryana High Court

summarily dismissing the Civil Writ Petition filed by the State.

Challenge in the writ petition was to the award passed by the

1 Presiding Officer, Labour court, U.T. Chandigarh in a

reference made under Section 10 of the Industrial Disputes

Act, 1947 (in short the `Act'). The respondent claimed that he

was working in the office of the Public Works Department B&R

since December 1991 and continued to work upto 31st March,

1993. He claimed to have completed 240 days of service and

to have drawn the salary. The allegation was that without any

justifiable reason his services were terminated w.e.f.

31.3.1993. A civil suit was filed for mandatory injunction

against the department. The Department took the view that

the Civil Court had no jurisdiction to entertain the suit.

Subsequently, demand notice was issued and the matter was

referred to the Labour Court. The Labour Court found that the

alleged termination was not sustainable. The Labour Court

took the view that since the workman was engaged in

December, 1991 and worked upto 31.1.1993 he is presumed

to have completed 240 days of service. Therefore, provision of

Section 25 of the Act was not complied with.

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3. Writ Petition was filed by the appellant questioning

correctness of the award which was dismissed summarily as

noted above.

4. Learned counsel for the appellant submitted that the

Labour Court did not take note of the fact that the claim

petition was made after about 5 years of the alleged

termination. The High Court should not have dismissed the

writ petition in a summary manner without indicating any

reason. It was further submitted that the respondent had not

completed 240 days of service within 12 calendar months

preceding the alleged date of termination. The award of 50%

back wages with a direction of re-instatement therefore cannot

be sustained.

5. Learned counsel for the respondent on the other hand

submitted that the burden is on the employer to show that the

concerned employee had not completed 240 days of service.

6. Reasons introduce clarity in an order. On plainest

consideration of justice, the High Court ought to have set forth

3 its reasons, howsoever brief, in its order indicative of an

application of its mind, all the more when its order is

amenable to further avenue of challenge. The absence of

reasons has rendered the High Court order not sustainable.

Similar view was expressed in State of U.P. v. Battan and Ors

(2001 (10) SCC 607). About two decades back in State of

Maharashtra v. Vithal Rao Pritirao Chawan (AIR 1982 SC

1215) the desirability of a speaking order while dealing with

an application for grant of leave was highlighted. The

requirement of indicating reasons in such cases has been

judicially recognized as imperative. The view was re-iterated in

Jawahar Lal Singh v. Naresh Singh and Ors. (1987 (2) SCC

222). Judicial discipline to abide by declaration of law by this

Court, cannot be forsaken, under any pretext by any authority

or Court, be it even the Highest Court in a State, oblivious to

Article 141 of the Constitution of India, 1950 (in short the

`Constitution').

7. Even in respect of administrative orders Lord Denning

M.R. in Breen v. Amalgamated Engineering Union (1971 (1) All

4 E.R. 1148) observed "The giving of reasons is one of the

fundamentals of good administration". In Alexander

Machinery (Dudley) Ltd. v. Crabtree (1974 LCR 120) it was

observed: "Failure to give reasons amounts to denial of

justice". Reasons are live links between the mind of the

decision taker to the controversy in question and the decision

or conclusion arrived at". Reasons substitute subjectivity by

objectivity. The emphasis on recording reasons is that if the

decision reveals the "inscrutable face of the sphinx", it can, by

its silence, render it virtually impossible for the Courts to

perform their appellate function or exercise the power of

judicial review in adjudging the validity of the decision. Right

to reason is an indispensable part of a sound judicial system,

reasons at least sufficient to indicate an application of mind to

the matter before Court. Another rationale is that the affected

party can know why the decision has gone against him. One of

the salutary requirements of natural justice is spelling out

reasons for the order made, in other words, a speaking out.

The "inscrutable face of a sphinx" is ordinarily incongruous

with a judicial or quasi-judicial performance.

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8. These aspects were highlighted in State of Punjab v.

Bhag Singh (2004(1) SCC 547) and Suga Ram @ Chhuga Ram

v. State of Rajasthan and Ors. (2006 (8) SCC 641).

9. In Mohan Lal v. Bharat Electronics Ltd. (1981 (3) SCC

225), it is said by this Court that before a workman can claim

retrenchment not being in consonance with Section 25-F of

the Industrial Disputes Act, he has to show that he has been

in continuous service for not less than one year with the

employer who had retrenched him from service.

10. In Range Forest Officer v. S.T. Hadimani (2002 (3) SCC

25) this Court held that: (SCC p. 26, para 3)

"In our opinion the Tribunal was not right in placing the onus on the management without first determining on the basis of cogent evidence that the respondent had worked for more than 240 days in the year preceding his termination. It was the case of the claimant that he had so worked but this claim was denied by the appellant. It was then for the claimant to lead evidence to show that he

6 had in fact worked for 240 days in the year preceding his termination. Filing of an affidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any court or tribunal to come to the conclusion that a workman had, in fact, worked for 240 days in a year. No proof of receipt of salary or wages for 240 days or order or record of appointment or engagement for this period was produced by the workman. On this ground alone, the award is liable to be set aside."

11. This Court again in Rajasthan State Ganganagar S. Mills

Ltd. v. State of Rajasthan (2004 (8) SCC 161), Municipal

Corpn., Faridabad v. Siri Niwas (2004 (8) SCC 195) and M.P.

Electricity Board v. Hariram (2004 (8) SCC 246), has reiterated

the principle that the burden of proof lies on the workman to

show that he had worked continuously for 240 days in the

preceding one year prior to his alleged retrenchment and it is

for the workman to adduce evidence apart from examining

himself to prove the factum of his being in employment of the

employer.

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12. The position was highlighted in Surendrangar District

Panchayat and Anr. vs. Jethabhai Pitamberbhai (2005 (8) SCC

450).

13. In view of the position in law as highlighted by this Court

as afore-noted we set aside the impugned order of the High

Court and remit the matter for fresh consideration in

accordance with law. Since the matter is pending since long, it

would be desirable that the High Court should dispose of the

writ petition as early as practicable preferably within 6

months from the date of receipt of this order.

14. The appeal is disposed of accordingly with no order as to

costs.

..............................J. (Dr. ARIJIT PASAYAT)

..............................J. (P. SATHASIVAM) New Delhi, July 11, 2008

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