IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.M.No.4024 of 2009 in [CASE NUMBER] Date of Decision:- 02.03.2009 [ENTITY] Petitioner(s) vs. The [ENTITY] and others Respondent(s) CORAM:- HON'BLE MR.JUSTICE [ENTITY] Present:- Mr.[ENTITY], Advocate for the applicant-petitioner. [ENTITY], J.
C.M.No.4024 of 2009 Application is allowed.
Amended writ petition is taken on record.
[CASE NUMBER] In the present writ petition, challenge is to the award dated 14.8.2008 (Annexure P-7) vide which the reference has been answered against the workman holding him not entitled to reinstatement in service.
It has been contended by counsel for the petitioner that the complete records with regard to the service of the workman were not produced by the respondent-Management before the Labour Court which would have shown that the workman has indeed completed 240 days in the 12 preceding months from the date of his termination. He contends that an adverse inference should have been drawn for non-production of records. He contends that as the workman has not been able to prove that he has completed 240 days because of non-production of the records, the Labour Court has proceeded to decide the reference against the workman. He further contends that the Labour Court has proceeded to decide the reference on the assumption as if the workman was seeking regularization of his services as the Labour Court has observed in its award that the workman has been appointed on daily wage basis and since his appointment is de hors the Rules and is against the [ACT]al Scheme of public appointment, he has no right to the post and further no right accrued to him to claim any benefit flowing from his appointment. He vehemently argues that despite the best efforts of the petitioner-workman, the complete records have not been provided to him under the [ACT] because of which he has been unable to prove that he has indeed worked for 240 days with the respondents in the 12 preceding months from the date of his termination. On the question of retrenchment of the workman, counsel for the petitioner contends that nothing has been proved on record by the respondent-Management which would show that the workman had either refused to accept the compensation amount or had been offered the said compensation. What has been asserted before the Labour Court is that the cheque had been sent to him at his address while he was still in service and, therefore, there was no question for sending the same at his residential address. On this basis, he contends that the findings recorded by the Labour Court on the question of retrenchment of the workman and the offer of paying compensation to the workman, cannot be sustained.
I have heard counsel for the petitioner and have gone through the records of the case. None of the contentions, as raised by the counsel for the petitioner, can be accepted. The workman was retrenched from service as per the directions of the Government issued vide letter dated 24.4.1996 Exhibit MW-1/9 which was endorsed by the Housing Board, Haryana, vide letter dated 12.5.1998 Exhibit MW-1/10. In accordance with the said directions, the workman was issued one month's notice before terminating his services. The period of one month's notice was to expire on 30.6.1998. On expiry of this period, the services of the workman came to an end and he was directed to collect his compensation dues under the provisions of the [ACT]. MW/1 [ENTITY] tendered his affidavit Exhibit MW1/A in evidence stating that the petitioner was appointed on daily wage basis as Sweeper and he was paid wages as per the rates approved by the Department for the period he had actually worked. He further stated that Cheque No.055669 dated 30.6.1998 amounting to Rs.4102.50 P. in respect of the retrenchment compensation was offered to the workman who refused to receive the same. On his refusal, vide letter dated 30.6.1998, the said cheque was sent to the workman at his address under registered cover, but the same was received back undelivered. Copy of the letter and the copy of the cheque and the post-office receipts were exhibited on record as Exhibits MW1/11 to MW1/14. Thereafter, cheque No.014333 dated 6.7.1998 amounting to Rs.[SECTION]38/- in respect of the wages for the month of June, 1998, was sent at the address of the workman, but the same was also received back undelivered. The photostat copies of the letter and cheque and post-office receipts etc. were produced as Exhibits MW-1/15 to MW1/17. It has further been stated by Sh.[ENTITY], MW/1, that the cheques were subsequently delivered to the workman against acknowledgment Exhibit MW1/18. The workman while appearing as WW-1 in his cross-examination has admitted the factum of having received the entire compensation amount under the [ACT]. All this goes a long way to prove that the services of the workman were retrenched in accordance with law.
A perusal of the impugned award shows that no request appears to have been made by the petitioner-workman before the Labour Court for production of records. Whatever evidence was produced by the respondent- Management was accepted to be correct, and on that basis, the Labour Court has given a finding that the workman has failed to prove that he has rendered 240 days of continuous service in 12 months preceding his alleged date of termination. Thus, the fact that the services of the workman were not validly retrenched by complying with the provisions of [SECTION] of the Act, loses its relevance. All these contentions of the counsel for the petitioner pertaining to the issue with regard to non-production of records to prove that he had indeed worked for 240 days prior to his date of termination, therefore, cannot be accepted. It is not in dispute that the post on which the workman was appointed on daily wages, is a public post. Although in the present case, the retrenchment compensation has been paid to him and the provisions of [SECTION] of the Act have been complied with and, therefore, there is no question of retrenchment of the workman but in any case, even if there had been any violation of the provisions of [SECTION] of the Act, the workman could not be reinstated on a public post which was not initially filled up. He had been appointed on the post according to the statutory Rules and in compliance with the [ACT]al scheme governing the public appointments. The Hon'ble Supreme Court has held in the cases of [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], that the posts under the State are required to be filled up in terms of the Recruitment Rules and by inviting applications from all eligible candidates. If the respondent-workman was engaged on daily wages without following the rules and principles of [SECTION] and [SECTION] of the [ACT] and, therefore, even if the workman has completed 240 days of service, he is not entitled to be reinstated and also for the grant of back wages.
Reliance can also be placed upon a judgment of the Hon'ble Supreme Court in the case of [PRECEDENT].
In the light of the above, finding no merit in this petition, the same is dismissed.
March 02, 2009 ( [ENTITY] ) poonam JUDGE Whether referred to Reporters Yes/No