REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 229 OF 2010
(Arising out of S.L.P. (C) No. 14078 of 2009)
Ramesh Kumar .... Appellant(s)
Versus
State of Haryana .... Respondent(s)
JUDGMENT
P. Sathasivam, J.
1) Leave granted.
2) This appeal is directed against the judgment and
final order dated 23.12.2008 passed by the High Court of
Punjab and Haryana at Chandigarh in CWP No. 575 of
2004 whereby the High Court allowed the writ petition
filed by the State of Haryana.
3) According to the appellant, in December, 1991, he
was appointed as Mali on casual basis in Public Works
Department (B & R) Haryana and worked at the Chief
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Minister’s residence. On 31.01.1993, his service was
terminated without any notice or retrenchment
compensation as provided in the Industrial Disputes Act,
1947 (hereinafter referred to as “the Act”). After knowing
that persons similarly appointed were either allowed to
continue or regularized by the Department, the appellant
sent a notice to the respondent. Since the Department
declined to accede to his request, appellant made a
Reference No. 81 of 1999 before the Labour Court, Union
Territory, Chandigarh. He pleaded before the Labour
Court that he had completed more than 240 days of
service and all along he was performing his duties at the
residence of the Chief Minister, Haryana. The
Government has made a policy that persons who have
completed 240 days of service may be regularized,
however, instead of regularization of his services, he was
terminated w.e.f. 31.01.1993. He prayed before the
Labour Court for setting the order of termination of his
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service and for an award for reinstatement with full back-
wages.
4) It is the case of the Department that the workman
has not completed 240 days of service except in the year
1992. He has not fulfilled the circular dated 27th May,
1993 entitling him for regularization of his service.
Further, the Government has not framed any policy to
regularize the service of persons who have completed 240
days as claimed.
5) Before the Labour Court, the workman himself was
examined as AW-1. On the side of the Department, one
Junior Engineer was examined as MW-1. On
consideration of the materials placed, the Labour Court,
by award dated 10.02.2003, has arrived at a conclusion
that the workman has worked with the Department for a
period of more than 240 days within 12 calendar months
preceding the date of termination i.e. 31.01.1993, and in
view of non-compliance of Section 25F of the Act, he is
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entitled to reinstatement. The Labour Court has also
directed reinstatement with continuity of service with 50
per cent back-wages from the date of termination. With
the above direction, reference was accepted and answered
in the affirmative.
6) Aggrieved by the said award of the Labour Court, the
State of Haryana challenged the same in CWP No. 575 of
2004 before the Punjab and Haryana High Court. By the
impugned order dated 23.12.2008, the High Court set
aside the award of the Labour Court granting
reinstatement and back-wages, consequently allowed the
writ petition.
7) Questioning the said decision of the High Court, the
workman has filed the present appeal by way of special
leave.
8) Heard learned counsel for the appellant-workman as
well as learned counsel for the respondent-State of
Haryana.
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9) The only point for consideration in this appeal is
whether the High Court was justified in setting aside the
award of the Labour Court when the appellant had
established that he was in continuous service for a period
of 240 days in a calendar year, particularly, when
similarly placed workmen were regularized by the
Government.
10) It is not in dispute that the appellant was appointed
as a Mali and posted at the residence of the Chief Minister
in the year 1991. The materials placed by the appellant
before the Labour Court clearly show that he had worked
for three years and there was no break during his service
tenure. He was issued identity card to work in the
residence of the Chief Minister and no reason was given
for his termination. It is also his case that there was no
show cause notice and no inquiry was conducted. The
perusal of the order of the Labour Court clearly shows
that one Shri Nasib Singh, Junior Engineer, who deposed
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as MW-1 on behalf of the Department has categorically
stated that the workman was engaged by the Department
on muster rolls as Mali in December, 1991 and he worked
up to 31.01.1993. He also stated that there was no break
from December, 1991 to January, 1993 during which the
workman was engaged. The Labour Court as per the
materials placed rightly found that the workman has
continuously worked from December 1991 to 31.01.1993.
It also found that the workman worked for 240 days with
the Department within 12 calendar months preceding his
date of termination i.e. 31.01.1993. It is useful to refer
the definition of “retrenchment” and “workman” in the Act
which reads thus:
“2 (oo) “retrenchment” means the termination by the
employer of the service of a workman for any reason
whatsoever, otherwise than as a punishment inflicted
by way of disciplinary action, but does not include…….”
2 (s) “workman” means any person (including an
apprentice) employed in any industry to do any manual,
unskilled, skilled, technical, operational, clerical or
supervisory work for hire or reward, whether the terms
of employment be express or implied, and for the
purposes of any proceeding under this Act in relation to
an industrial dispute, includes any such person who
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has been dismissed, discharged or retrenched in
connection with, or as a consequence of, that dispute,
or whose dismissal, discharge or retrenchment has led
to that dispute, but does not include any such person…
……….”
25F. Conditions precedent to retrenchment of
workmen.
No workman employed in any industry who has been in
continuous service for not less than one year under an
employer shall be retrenched by that employer until-
(a) the workman has been given one month’s notice in
writing indicating the reasons for retrenchment and the
period of notice has expired, or the workman has been
paid in lieu of such notice, wages for the period of the
notice;
(b) the workman has been paid, at the time of
retrenchment, compensation which shall be equivalent
to fifteen days’ average pay for every completed year of
continuous service or any part thereof in excess of six
months; and
(c) notice in the prescribed manner is served on the
appropriate Government or such authority as may be
specified by the appropriate Government by notification
in the Official Gazette.”
It is not in dispute that the appellant is a “workman” as
defined under Section 2 (s) and “retrenchment” if any it
should be in accordance with Section 25F of the Act.
Admittedly, in the case on hand, the workman was not
given any notice or pay in lieu of notice or retrenchment
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compensation at the time of his retrenchment. In view of
the same, the Labour Court has correctly concluded that
his termination is in contravention of the provisions of
Section 25 F of the Act. Though the Department has
relied on a circular, the Labour Court on going through
the same rightly concluded that the same is not applicable
to the case of the retrenchment.
11) In addition to the factual conclusion by the Labour
Court, namely, continuance for a period of 240 days in a
calendar year preceding his termination, the appellant has
also placed relevant materials to show that persons
similarly situated have already been reinstated and their
services have been regularized. It is his grievance that
appellant alone has been meted out with the hostile
discrimination by the Department. He also highlighted
that in respect of some of the workmen who were
appointed and terminated, after similar awards passed by
the Labour Court, the Management did not challenge the
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same before the High Court by filing writ petitions. He
also pointed out that in some cases where a challenge was
made before the High Court by filing writ petitions
however, after dismissal of the writ petitions those persons
were reinstated. In fact, according to the appellant some
of them were even regularized. The details of other
identically situated persons are as follows:-
S.No. Name Labour High Court Supreme Court Present
Court Status
1. Gurbax Singh Claim No writ petition No SLP filed Reinstated
allowed filed on
19.06.2004.
Service
regularized
w.e.f.
01.07.2004
2. Mast Ram Claim Writ petition filed SLP filed by the Reinstated on
allowed by respondents, respondents, 19.06.2004.
dismissed also dismissed. Service
regularized
3. Rajesh Kumar Claim Writ petition filed SLP filed by the Reinstated.
allowed by respondents, respondents, Service
dismissed also dismissed. regularized.
4. Paramjit Claim Writ petition filed SLP filed by the Reinstated.
Kumar allowed by respondents, respondents, Service
dismissed also dismissed. regularized.
5. Ramesh Claim In 1st round Writ SLP filed by the Reinstated
Kumar allowed petition filed by respondents, on
(Petitioner) respondents, matter remitted 18.06.2004
dismissed back. but service
Now petitioner not
In 2nd round writ has filed the regularized.
petition was present writ
allowed. petition.
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12) The perusal of all these details clearly shows that the
appellant alone was singled out and discriminated. We
have already noted the specific finding of the Labour Court
that the appellant had fulfilled 240 days in a calendar
year before the order of termination. The appellant has
also highlighted that he is the sole bread earner of his
family and his family consists of his old mother, wife and
two minor sons and a minor daughter. The above-
mentioned chart also shows that identical awards passed
in the case of Mast Ram, Rajesh, Paramjit and Amarjit
was upheld by the High Court and the award in favour of
the appellant alone was quashed by the High Court in the
second round of litigation. Though, it was contended that
the initial appointment of the appellant was contrary to
the recruitment rules and constitutional scheme of
employment, admittedly, the said objection was not raised
by the Department either before the Labour Court or
before the High Court at the first instance. It was only for
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the first time that they raised the said issue before the
High Court when the matter was remitted to it that too the
same was raised only during the arguments. In such
circumstances, the High Court ought not to have
interfered with the factual finding rendered by the Labour
Court and in view of the different treatment to other
similarly placed workmen the Department ought not to
have challenged the order of the Labour Court. In
addition to the above infirmities, the appellant has also
pointed out that one Gurbax Singh who was engaged
subsequent to the appellant on casual basis has
challenged his termination order, which was quashed by
the Labour Court; interestingly the Department did not
challenge the award of the Labour Court by filing writ
petition. It was also highlighted by the appellant that on
the basis of the award, Gurbax singh was not only taken
back in service but his services were regularized w.e.f.
01.07.2004.
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13) We are conscious of the fact that an appointment on
public post cannot be made in contravention of
recruitment rules and constitutional scheme of
employment. However, in view of the materials placed
before the Labour Court and in this Court, we are satisfied
that the said principle would not apply in the case on
hand. As rightly pointed out, the appellant has not
prayed for regularization but only for reinstatement with
continuity of service for which he is legally entitled to. It
is to be noted in the case of termination of casual
employee what is required to be seen is whether a
workman has completed 240 days in the preceding 12
months or not. If sufficient materials are shown that
workman has completed 240 days then his service cannot
be terminated without giving notice or compensation in
lieu of it in terms of Section 25F. The High Court failed to
appreciate that in the present case appellant has
completed 240 days in the preceding 12 months and no
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notice or compensation in lieu of it was given to him, in
such circumstances his termination was illegal. All the
decisions relied on by the High Court are not applicable to
the case on hand more particularly, in view of the specific
factual finding by the Labour Court.
14) Under these circumstances, the impugned order of
the High Court dated 23.12.2008 passed in CWP No. 575
of 2004 is set aside. It is not in dispute that the
appellant-workman is continuing in service and learned
counsel representing him fairly stated that he is willing to
forego back-wages as awarded by the Labour court, the
same is recorded. Consequently, the civil appeal filed by
the workman is allowed to the extent mentioned above.
No costs.
…………………………………..J.
( P. SATHASIVAM )
……………………………………J.
(H.L. DATTU)
NEW DELHI;
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JANUARY 13, 2010.
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