C.W.P. No.17851 of 2007 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
C.W.P. No.17851 of 2007
Decided on : 26-11-2008
Divisional Forest Officer
....Petitioner
VERSUS
Bansi & another
....RespondentsCORAM:-HON’BLE MR. JUSTICE HEMANT GUPTA.
HON’BLE MR. JUSTICE NAWAB SINGH.
1.Whether Reporters of local papers may be allowed to see the judgment ?
2. To be referred to the Reporters or not ?
3.Whether the judgment should be reported in the Digest ?
-.-
Present:- Mr. Sunil Nehra, Addl. A.G., Haryana
for the petitioner.
Mr. Manoj Kumar, Advocate for respondent No.1.
HEMANT GUPTA, J
The challenge in the present writ petition is to the Award passed
by the Labour Court on 05.06.2006 (Annexure P-5), whereby an Industrial
Dispute raised by respondent No.1 (hereinafter referred to as “the
workman”) was answered in favour of the workman and the workman has
been ordered to be reinstated in service with continuity of service and other
consequential benefits including 50% back wages from the date of issuance
of demand notice till the date of publication of the Award and full wages
thereafter till reinstatement.
It is the case of the workman that he was engaged as a Beldar
w.e.f. December, 1992 on daily wage basis and continued to work till
26.8.2000. The workman claims to have worked for 240 days in a year
C.W.P. No.17851 of 2007 -2-
preceding the date of termination. It is alleged that his services have been
terminated on 27.8.2000 without complying with the provisions of Section
25-F of Industrial Disputes Act, 1947 (for short ‘the Act’) and also the
provisions of Section 25-G of the Act has been violated, as the Management
has retained persons junior to the petitioner.
The stand of the Management was that the workman was engaged
to carry out plantation work which is of seasonal nature. It was denied that
the workman has worked for 240 days in a calendar year.
The learned Labour Court answered reference in favour of the
workman by raising adverse inference against the Management for not
producing the record of the engagement of the workman. It was found that
though the Management witness Dalip Singh, Range Forest Officer, MW-1,
has stated in the cross-examination that he has seen the original muster rolls
from July, 1993 to August, 2000 before appearing as a witness. But, still he
has not produced the records. The learned Labour Court has returned a
finding that the workman has worked for more than 240 days preceding one
year from the date of termination.
Learned counsel for the petitioner has relied placed upon a
decision of the Supreme Court in cases reported as Ghaziabad
Development Authority & another Vs. Ashok Kumar & another, 2008
(4) SCC 261, Mahboob Deepak vs. Nagar Panchayat, Gajraula,
(2008) 1 SCC 575, M.P. Administration Vs. Tribhuwan, (2007) 9 SCC
748, Utrranchal Forest Development Corpn. Vs. M.C. Joshi, (2007) 2
SCC (L&S) 813, State of M.P. And others Vs. Lalit Kumar Verma,
(2007) 1 SCC 575, to contend that the post under the State are required to
C.W.P. No.17851 of 2007 -3-
be filled up in terms of the Recruitment Rules and by inviting applications
from all eligible candidates. It is contended that the respondent-workman
was engaged on daily wages without following the rules and principles of
Articles 14 and 16 of the Constitution, therefore, even if the workman has
completed 240 days of service, the said workman is not entitled to be
reinstated and also for the grant of back wages. In M.P. Administration’s
case (supra), the Court held to the following effect:-
6. “The question, however, which arises for consideration is as
to whether in a situation of this nature, the learned Single Judge
and consequently the Division Bench of the Delhi High Court
should have directed reinstatement of the respondent with full
back wages. Whereas at one point of time, such a relief used to be
automatically granted, but keeping in view several other factors
and in particular the doctrine of public employment and
involvement of the public money, a change in the said trend is
now found in the recent decisions of this Court. This Court in a
large number of decisions in the matter of grant of relief of the
kind distinguished between a daily wager who does not hold a
post and a permanent employee. It may be that the definition of
“workman” as contained in Section 2(s) of the Act is wide and
takes within its embrace all categories of workmen specified
therein, but the same would not mean that even for the purpose of
grant of relief in an industrial dispute referred for adjudication,
application of constitutional scheme of equality adumbrated under
Articles 14 and 16 of the Constitution of India, in the light of a
decision of a Constitution Bench of this Court in Secy., State of
Karnataka v. Umadevi and other relevant factors pointed out by
the Court in a catena of decisions shall not be taken into
consideration.
7. The nature of appointment, whether there existed any
sanctioned post or whether the officer concerned had any
C.W.P. No.17851 of 2007 -4-authority to make appointment are relevant factors.”
The said observations are in the context of engagement of a
workman engaged on temporary basis from time to time. It was held that
the Industrial Court exercises its discretionary jurisdiction under Section
11A of the Act, when it directs the amount of compensation to be paid to the
workman.
In Mahboob Deepak’s case (supra), the Court held to the
following effect:-
9. “Due to some exigency of work, although recruitment on
daily wages or on an ad hoc basis was permissible, but by reason
thereof an employee cannot claim any right to be permanently
absorbed in service or made permanent in absence of any statute
or statutory rules. Merely because an employee has completed
240 days of work in a year preceding the date of retrenchment, the
same would not mean that his services were liable to be
regularised.”
In Ghaziabad Development Authority’s case (supra), the dispute
referred to the Labour Court was regarding termination of daily wagers
appointed on ad hoc basis. It was held to the following effect:-
19. “A statutory authority is obligated to make recruitments
only upon compliance with the equality clause contained in
Articles 14 and 16 of the Constitution of India. Any appointment
in violation of the said contitutional scheme as also the statutory
recruitment rules, if any, would be void. These facts were
required to the kept in mind by the Labour Court before passing
an award of reinstatement.
20. Furthermore, public interest would not be subserved if
after such a long lapse of time, the first respondent is directed to
be reinstated in service.”
C.W.P. No.17851 of 2007 -5-
Since the workman has no proof to have worked continuously as
claimed by the workman, therefore, we are of the opinion that the workman
is neither entitled to be reinstated or any back wages.
In view of the above, we allow the present writ petition and the
impugned award dated 05.06.2006 (Annexure P-5), is set aside.
(Hemant Gupta)
Judge
26th November 2008. (Nawab Singh)
Monika Judge