Mahender vs Presiding Officer on 23 March, 2009

            IN THE HIGH COURT OF PUNJAB AND HARYANA
                      AT CHANDIGARH

                                            C.M. No. 5111 of 2009 and
                                            C.W.P. No. 21109 of 2008.
                                         Date of Decision : March 23, 2009.


Mahender.                                            ...... Petitioner.

                                  Versus.

Presiding Officer, Industrial Tribunal-cum-Labour Court, Hisar,
and another.                                            ..... Respondents.

CORAM: HON’BLE MR. JUSTICE AUGUSTINE GEORGE MASIH.

Present:-    Mr. J.P. Dhull, Advocate,
             for the petitioner.

             Mr. R.N. Sharma, Advocate,
             for the respondent No. 2.

AUGUSTINE GEORGE MASIH, J. (ORAL).

C.M. No. 5111 of 2009.

This application is for placing on record the written statement on

behalf of respondent No.2.

Application is allowed.

Written statement is taken on record.

C.W.P. No. 21109 of 2008.

In the present writ petition, the challenge is to the award dated

28.02.2008 (Annexure-P-1), passed by the Industrial Tribunal-cum-Labour

Court, Hisar, vide which the reference has been answered against the

petitioner-workman.

Counsel for the petitioner-workman states that the petitioner-

workman has put in service of more than 240 days in the 12 preceding
C.W.P. No. 21109 of 2008. -2-

months which is an admitted fact and finding to that effect has been given by

the Labour Court. He contends that even if it is held that the petitioner-

workman would not be held entitled to the reinstatement in the light of the

fact that it was a public post which was not made in accordance with the

statutory rules and the petitioner-workman in the light of the judgment of the

Division Bench of this Court in the case of State of Haryana Versus Ishwar

Singh and another, 2008(3) S.C.T. 788, would be entitled to compensation

alone.

Counsel for the respondent-management on the other hand

contends that he was a daily wager and he was performing his duties as a

daily wager all through, therefore, the provisions of Section 25-F of the

Industrial Disputes Act would not attracted in the present case. He relies

upon the judgment of Hon’ble the Supreme Court in the case of Batala

Cooperative Sugar Mill Limited Versus Sowaran Singh, 2006 (1) R.S.J.

758. He further relies upon the judgment of this Court in the case of

Director, Central Sheep Breeding Farm, Hisar Versus President, District

Agriculture Workers Union, Hisar, and another, as well as Division Bench

judgment of this Court in the case of Executive Engineer H.U.D.A.

Gurgaon Versus Presiding Officer, Industrial Tribunal-cum-Labour

Court, Gurgaon, and another, in support of his contentions.

I have heard counsel for the parties and have gone through the

records of the case. The admitted position as is apparent from the impugned

award is that the petitioner-workman has indeed put in 240 days prior to his

termination. It is also not in dispute that the petitioner-workman was

appointed in September,2000, and continued in service till April, 2003. The

judgments as relied upon by counsel for the respondent did hold field but in
C.W.P. No. 21109 of 2008. -3-

subsequent judgments, Hon’ble the Supreme Court while considering these

aspects has come to the conclusion that where there is violation of

Section 25-F of the Industrial Disputes Act even in case of daily wagers

although they would not be entitled to reinstatement in the light of fact that

the appointment was not in consonance with the statutory requirements or in

violation of the mandate of the constitution for making appointment on

public post but still for the reason that the workman had indeed worked with

the respondents and the appointment was made by the management in

violation of the statutory rules, held him entitled to compensation in lieu of

the reinstatement in service. Reliance on the judgment of Hon’ble the

Supreme Court in the Telecom District Manager and Others Versus

Kesheb Deb, 2008 (4) S.C.T. 33, and thereafter, judgment of Division Bench

this High Court in the case State of Haryana Versus Ishwar Singh and

another, 2008(3) S.C.T. 788, can be placed.

In the present writ petition, the petitioner-workman has put in

service of 2 years and 9 months with the respondent-management, he is held

entitled to compensation of Rs. 30,000/- to balance equities between the

parties.

Direction is issued to the respondent-management to make the

payment of compensation amount within a period of two months from the

date of receipt of copy of this order.

In this view of the matter, the present writ petition stands

disposed of.

(AUGUSTINE GEORGE MASIH)
JUDGE
March 23, 2009.

sjks.