C.W.P. No.3962 of 2007 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
C.W.P. No.3962 of 2007
Decided on : 25-11-2008
Divisional Forest Officer
....Petitioner
VERSUS
Presiding Officer, Labour Court, Hisar & another
....Respondents
CORAM:-HON’BLE MR. JUSTICE HEMANT GUPTA.
HON’BLE MR. JUSTICE NAWAB SINGH.
Present:- Mr. Sunil Nehra, Addl. A.G., Haryana
for the petitioner.
Mr. R.K. Rana, Advocate for respondent No.2.
HEMANT GUPTA, J
The challenge in the present writ petition is to the Award passed
by the Labour Court on 17.08.2006 (Annexure P-3), whereby an Industrial
Dispute raised by respondent No.2 (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-
cum-Mali from 1.8.1988 to 30.06.1999. His services have been terminated
on 1.7.1999 without assigning any reason or reasonable cause. It is the case
of the workman that since he has worked for more than 240 days in a
calendar year, therefore, termination without payment of retrenchment
C.W.P. No.3962 of 2007 -2-
compensation and compliance of mandatory provisions of Section 25-F of
Industrial Disputes Act, 1947 (for short ‘the Act’), is void. It is also alleged
that some juniors have been retained, whereas the workman has been
retrenched. Thus, there is violation of Sections 25-G and 25-H of the Act.
The stand of the petitioner was that the workman has worked on
need basis and he has not worked continuously for 240 days in a calendar
year preceding the termination of his services. It was alleged that workman
left job himself that his services were not terminated. It was also pleaded
that no junior person has been retained.
The learned Labour Court after giving an opportunity to the
parties to lead evidence, returned the finding that the workman has worked
for 240 days and thus, the provisions of Section 25-F of the Act were
required to be followed by the management. After returning such finding,
the Labour Court has ordered reinstatement of the workman with continuity
of service and also awarded 50% of back wages from the date of demand
notice till the date of publication of the Award and full wages thereafter till
reinstatement.
Learned counsel for the petitioner has relied on 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 be filled up in terms of the
Recruitment Rules and by inviting applications from all eligible candidates.
C.W.P. No.3962 of 2007 -3-
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
authority to make appointment are relevant factors.”
The said observations are in the context of engagement of a
C.W.P. No.3962 of 2007 -4-
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.”
In view of the aforesaid judgments, we are of the opinion that the
workman, though has worked on daily wages intermittently for more than
10 years, but is not entitled to be reinstated.
C.W.P. No.3962 of 2007 -5-
In view of the above, we allow the present writ petition and the
impugned award dated 17.08.2006 (Annexure P-3), is set aside.
Since the workman has worked for a period of more than 10 years
prior to his termination, we deem it appropriate to direct the petitioner to
pay compensation of Rs.50,000/- to the respondent-workman within a
period of four months from the date of receipt of copy of the order.
(Hemant Gupta)
Judge
25th November 2008. (Nawab Singh)
Monika Judge