Civil Writ Petition No.1671 of 2004 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
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Civil Writ Petition No.1671 of 2004
Date of Decision:11.12.2008
State of Punjab and others
.....Petitioners
Vs.
Prem Bahadur and another
.....Respondents
CORAM:- HON'BLE MR. JUSTICE HARBANS LAL
Present:- Mr. V.K. Chaudhary, AAG, Punjab.
Mr. S.S. Rana, Advocate for respondent No.1.
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JUDGMENT
HARBANS LAL, J.
This petition has been moved by the State of Punjab and others
under Articles 226/227 of the Constitution of India for quashing the award
dated 16.12.2003 Annexure P.1.
The brief facts giving rise to this petition are that Prem
Bahadur- respondent (hereinafter to be referred as `the workman’) was
engaged on daily wages on 1.7.1993. He worked for 120 days, 59 days and
121 days during the calendar years of 1993, 1994 and 1995 respectively as
detailed out in the petition. He did not complete 240 days in the calendar
year and left the job on 1.10.1995 on his own. Thereafter, he was appointed
on work-charged basis vide Annexure P.3 and posted in Investigation Sub-
Division No.3, Hoshiarpur. Subsequently, the Government of Punjab issued
instructions Annexure P.4 dated 19.4.1999 requiring the list of persons who
were recruited purely on temporary/ ad-hoc basis during the ban period for
Civil Writ Petition No.1671 of 2004 -2-
the last two years. Vide Annexure P.4 dated 19.4.1999, the Government of
Punjab called upon the Superintending Engineer, Dholbaha Dam
Construction Circle, Hoshiarpur, Superintending Engineer Circle, Kandi
Canal Circle, Hoshiarpur, Director, Kandi Watershed Design, Chandigarh
and Director, Kandi Canal Design, Chandigarh to furnish the list of persons
who were recruited purely on temporary/ ad-hoc basis during the said period
and to terminate the services of such workers immediately. On the basis of
these instructions, the workman who was employed as Beldar, was issued
one month notice of termination of his services vide Annexure P.5 dated
27.4.1999 which was duly received by him. On the expiry of one month’s
period, his services stood automatically terminated. He was junior most
Beldar as per senority list Annexure P.6 of Kandi Canal Circle, Hoshiarpur.
The workman raised industrial dispute vide demand notice Annexure P.7,
which was referred to the learned Presiding Officer, Labour Court,
Jalandhar for adjudication. Vide Annexure P.1, it was held that termination
of services of the workman is illegal and unfair labour practice on the part
of the respondents and as such, he be reinstated with 40% of back-wages
with continuity of service and all other service benefits. The impugned
award is illegal and based upon conjectures and surmises as per the grounds
embodied in this petition.
In the written statement filed by the workman, it has been inter-
alia pleaded that in fact the answering respondent worked on daily wages
from 1.7.1993 to 13.9.1997 and not upto 30.9.1995 with notional breaks.
He was appointed as Beldar (work-charge) vide Annexure P.3, order dated
12.9.1997, which cannot be said to be a fresh appointment, rather it was the
continuation of earlier appointment of daily wager to work charged. The
Civil Writ Petition No.1671 of 2004 -3-
total service of the answering respondent from 1.7.1993 to 19.4.1999 was
more than two years as mentioned in the instructions issued by the
Government. Thus, he was not covered under these instructions. The one
month notice of termination was illegal, being motivated and
discriminatory. In the alleged seniority list Annexure P.6, a number of other
persons were having less than two years service, but the service of none of
them was terminated. Satya Devi at Sr. No.53 is one of such example.
Moreover, the answering respondent was appointed on work-charged basis
and his services cannot be terminated/ retrenched till the work/ project is
complete. That none of the employee of the Kandi Canal Circle was
removed from service except the answering respondent. Lastly, it has been
prayed that the petition may be dismissed with exemplary costs.
I have heard the learned counsel for the parties, besides
perusing the findings returned by the learned Presiding Officer, Labour
Court, Jalandhar with due care and circumspection.
Mr. V.K. Chaudhary, Assistant Advocate General, Punjab on
behalf of the State maintained with great vigour that on calculating the
period, it transpires that the workman has not worked for 240 days in the
calendar years of 1993, 1994, 1995 and that being so, the learned Labour
Court was clearly in error in holding that the workman has completed 240
days in 12 months of the calendar year. He further pressed into service that
if it is assumed that the workman had completed 240 days of his continuous
service, despite that, in view of the ratio decidendi laid down by the Apex
Court in re: M.P. State Agro Industries Development Corporation Ltd.
and another v. S.C. Pandey, (2006) 2 Supreme Court Cases 716,, his
services cannot be regularised. He has also relied upon the observations
Civil Writ Petition No.1671 of 2004 -4-
rendered in re: Municipal Council, Samrala v. Raj Kumar, (2006) 3
Supreme Court Cases 81; Mahboob Deepak v. Nagar Panchayat
Gajraula and another, (2008) 2 Services Law Reporter 12; State of M.P.
and others v. Arjun Lal Rajak, (2006) 2 Supreme Court Cases 711; UP
State Brassware Corporation Limited and another v. Uday Naraian
Pandey, (2006) 1 Supreme Court Cases 479.
To controvert these submissions, Mr. S.S.Rana, Advocate
representing the respondent- workman argued that the workman had put in
more than 240 days service in 12 calendar months of a year and
furthermore, he was working on work-charged basis and hence, his services
could not be terminated. Consequently, the impugned award cannot be
faulted with in any manner.
I have well considered the rival contentions. As per the details
given in the petition, the workman worked for 120 days during the calendar
year of 1993, 59 days during the calendar year of 1994 and 121 days during
the calendar year of 1995. It implies that he did not complete 240 days in
any of these calendar years. On the other hand, the learned Presiding
Officer, Labour Court has observed as under:-
“The details of daily work done by the workman from 1.7.1993
to 1.9.1995 have been submitted on behalf of the department
on the directions of the court showing that during the said
period workman worked for 300 days and was absent for 522
days. The major period of absence is from 1.12.1993 to
31.5.1994 for 182 days and from 1.9.1994 to 31.3.1995 for 212
days. From 1.4.1995 to 30.9.1995, the workman was not
employed in the months of May and August, 1995.”
Civil Writ Petition No.1671 of 2004 -5-
It is further observed by the learned Presiding Officer, Labour
Court in paragraph No.7 of the impugned award that “the workman had
worked for four months less than two years. It is to be noted that if his
services from 1.4.1995 till 30.9.1995 is included, which is after the major
break of 212 days on daily wage basis, the period of the services of the
workman becomes more than two years.” It has not been clearly observed
as to in which calendar year, the workman had worked for 240 days. Thus,
on this aspect of the matter, the impugned award is vague. The matter could
be decided effectively, completely and finally on the stated aspect only.
Consequently, the impugned award is set aside and the matter is remitted to
the Presiding Officer, Labour Court, Jalandhar for deciding the same afresh
by taking into consideration the details of the period given by the petitioner
in the petition as well as the law cited on behalf of the petitioner with a
direction to dispose it off preferably within three months from the date of
receipt of the certified copy of this judgment.
December 11, 2008 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? No
