[CASE NUMBER] (1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH [CASE NUMBER] Date of decision : 12.9.2012 [ENTITY] Petitioner vs The [ENTITY] and another Respondents Coram: Hon'ble Mr. Justice [ENTITY] Present: Mr. [ENTITY], Advocate, for the petitioner. Mr. [ENTITY], Advocate, for respondent no. 1. Mr. [ENTITY], Additional Advocate General, Haryana. [ENTITY], J.
The petitioner/ workman is before this court challenging the award of the Labour Court dated 29.3.2010.
Briefly the facts are that the petitioner was appointed as Chowkidar in October 1990. He worked as such with the management continuously. After he had put in about eleven years of service, his services were terminated on 18.7.2001 in violation of [SECTION] of the [ACT] (for short "the Act"), as no retrenchment compensation was paid to him. Aggrieved by his termination, he filed [CASE NUMBER], which was disposed of with a direction to respondent no. 1 to decide the legal notice by passing a speaking order. However, the claim of the petitioner was rejected without any reason. Thereafter, the petitioner filed [CASE NUMBER], which was got dismissed as withdrawn on 28.9.2006 with liberty to avail the alternative remedy. He raised a demand notice on 23.10.2006. The dispute was referred to respondent no. 2 for adjudication. Respondent No.2 vide its award dated 29.3.2010 granted relief of compensation of ` 9,000/- in lieu of the reinstatement in service. It is this award which is impugned in the present writ petition by the petitioner claiming that he is entitled to reinstatement with back wages.
[CASE NUMBER] (2) Learned counsel for the petitioner submitted that the petitioner worked as Chowkidar with effect from October 1990 onwards. After he had put in about eleven years of service, his services were unceremoniously terminated on 18.7.2001. He further contended that respondent No.2 vide its award dated 29.3.2010 had only granted relief of compensation of ` 9,000/- to the petitioner even though it was held that termination of his services was in violation of provisions of [SECTION] of the Act. Once it was proved that the petitioner had completed 240 days of service during the preceding 12 months and his termination was in violation of [SECTION] of the Act, he should have been granted the relief of reinstatement with continuity of service and full back wages. He further submitted that the learned court below failed to appreciate that in the present case it was not the pleaded case of the respondent-management that the petitioner was not at all entitled for re-instatement with continuity in service and back wages because he was daily wager and was not appointed as per the service rules. No issue in this regard was framed by the Labour court.
Learned counsel for the petitioner placed reliance upon the judgments of Hon'ble the Supreme Court in [ENTITY] vs State of Haryana, 2010 (1) SCT 675; [PRECEDENT] vs [ENTITY] Public Health Division No.1, Panipat (Haryana), 2010 (3) SCT 319; [ENTITY] vs Punjab State Warehousing Corporation 2010 (3) SCC 192; and [PRECEDENT].
On the other hand, learned counsel for respondent no. 1, submitted that the petitioner had not worked for 240 days or more in twelve preceding months before his alleged termination. He was engaged as a part time Chowkidar on four hours basis. His services were discontinued as no longer required. He worked with the management as per requirement of work. Hence, the question of violation of [SECTION] of the Act does not arise. He further submitted that the petitioner is not entitled to any relief being daily wagers, as he was not appointed as per the service rules against the regular sanctioned post, thus, relief of re-instatement with continuity and back wages should not be granted to him.
[CASE NUMBER] (3) Heard learned counsel for the parties and perused the paper book.
Hon'ble the Supreme Court in [ENTITY]' s case (supra) held that if sufficient material is shown that workman has completed 240 days of service, his/ her service cannot be terminated without giving notice or payment of compensation in lieu thereof in terms of [SECTION] of the Act.
Further in [PRECEDENT]'s case (supra), Hon'ble the Supreme Court has considered the scope of term continuous service under [SECTION] of the Act, which when read along with [SECTION] of the Act mandates giving of one month's notice or pay in lieu thereof and otherwise than by way of punishment or in accordance with express terms incorporated in the order of appointment. If a workman is retrenched by an oral order or communication or is simply asked not to come for duty, the employer will be required to lead tangible and substantive evidence to prove compliance of [SECTION] of the Act. Relevant paragraphs of the aforesaid judgment are reproduced hereunder:-
"13. An analysis of the above reproduced provisions shows that no workman employed in any industry who has been in continuous service for not less than one year under an employer can be retrenched by that employer until the conditions enumerated in [SECTION] of the Act are satisfied. In terms of Clause (a), the employer is required to give to the workman one month's notice in writing indicating the reasons for retrenchment or pay him wages in lieu of the notice. Clause (b) casts a duty upon the employer to pay to the workman at the time of retrenchment, compensation equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months. This Court has repeatedly held that [SECTION] of the Act is mandatory and non-compliance thereof renders the retrenchment of an employee nullity. This Court has used different expressions for describing the consequence [CASE NUMBER] of terminating a workman's service/employment/engagement by way of retrenchment without complying with the mandate of [SECTION] of the Act. Sometimes it has been termed as ab initio void, sometimes as illegal per se, sometimes as nullity and sometimes as non est. Leaving aside the legal semantics, we have no hesitation to hold that termination of service of an employee by way of retrenchment without complying with the requirement of giving one month's notice or pay in lieu thereof and compensation in terms of [SECTION] has the effect of rendering the action of the employer as nullity and the employee is entitled to continue in employment as if his service was not terminated.
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15. In [PRECEDENT] (supra), the Court emphasised that the workman cannot be retrenched without payment, at the time of retrenchment, compensation computed in terms of [SECTION].
16. The legal position has been beautifully summed up in [PRECEDENT] (supra) in the following words:
"The underlying object of [SECTION] is twofold. Firstly, a retrenched employee must have one month's time available at his disposal to search for alternate employment, and so, either he should be given one month's notice of the proposed termination or he should be paid wages for the notice period. Secondly, the workman must be paid retrenchment compensation at the time of retrenchment, or before, so that once having been retrenched there should be no need for him to go to his employer demanding retrenchment compensation and the compensation so paid is not only a reward earned for his previous services rendered to the employer but is also a sustenance to the worker for the period which may be spent in searching for another employment. [SECTION] [CASE NUMBER] speaks of the retrenchment compensation being paid or tendered to the worker along with one month's notice; on the contrary, clause (b) expressly provides for the payment of compensation being made at the time of retrenchment and by implication it would be permissible to pay the same before retrenchment. Payment or tender of compensation after the time when the retrenchment has taken effect would vitiate the retrenchment and non-compliance with the mandatory provision which has a beneficial purpose and a public policy behind it would result in nullifying the retrenchment"
In [ENTITY]' s case (supra), Hon'ble the Supreme Court has held as under:-
"30. Of late, there has been a visible shift in the courts' approach in dealing with the cases involving the interpretation of social welfare legislations. The attractive mantras of globalisation and liberalisation are fast becoming the raison d'etre of the judicial process and an impression has been created that the constitutional courts are no longer sympathetic towards the plight of industrial and unorganized workers. In large number of cases like the present one, relief has been denied to the employees falling in the category of workmen, who are illegally retrenched from service by creating by-lanes and side-lanes in the jurisprudence developed by this Court in three decades. The stock plea raised by the public employer in such cases is that the initial employment/engagement of the workman- employee was contrary to some or the other statute or that reinstatement of the workman will put unbearable burden on the financial health of the establishment. The courts have readily accepted such plea unmindful of the accountability of the wrong doer and indirectly punished the tiny beneficiary of the wrong ignoring the fact that he may have continued in the employment for years together [CASE NUMBER] (6) and that micro wages earned by him may be the only source of his livelihood.
31. It need no emphasis that if a man is deprived of his livelihood, he is deprived of all his fundamental and constitutional rights and for him the goal of social and economic justice, equality of status and of opportunity, the freedoms enshrined in the [ACT] remain illusory. Therefore, the approach of the courts must be compatible with the constitutional philosophy of which the Directive Principles of State Policy constitute an integral part and justice due to the workman should not be denied by entertaining the specious and untenable grounds put forward by the employer - public or private."
Hon'ble the Supreme Court in [PRECEDENT]'s case (supra) held that provisions of [SECTION] are mandatory and termination of service of a workman which amounts to retrenchment within the meaning of [SECTION] of the Act without giving one month's notice or pay in lieu thereof and retrenchment compensation is null and void. Further it has held that the appellant shall be entitled to reinstatement with continuity in service and wages for the period between the date of award and the date of actual reinstatement. The relevant paragraphs of the aforesaid judgment are reproduced hereunder:-
"20. This Court has repeatedly held that the provisions contained in [SECTION] are mandatory and termination of the service of a workman which amounts to retrenchment within the meaning of [SECTION] without giving one month's notice or pay in lieu thereof and retrenchment compensation is null and void/ illegal/ inoperative.
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28. In the result, the appeal is allowed. The impugned order is set aside and the award passed by the Labour Court for [CASE NUMBER] reinstatement of the appellant is restored. If the respondent shall reinstate the appellant within a period of four weeks from today, the appellant shall also be entitled to wages for the period between the date of award and the date of actual reinstatement. The respondent shall pay the arrears to the appellant within period of three months from the date of receipt / production of the copy of this order."
On consideration of the matter, I do not find any merit in the contention raised by learned counsel for respondent no. 1. There was no plea raised by it that the employment of the petitioner was not in accordance with rules or norms for public appointment. In the absence of any material, which was required to be pleaded and set up by respondent no. 1 at the first instance, the learned court below could not come to the conclusion that the said appointment was back door entry and was not in accordance with law. Such a finding has to be negated, as it is unsustainable in law, in view of the categorical observations made by Hon'ble the Supreme Court in the above mentioned decisions.
In the present case, the facts reveal that the petitioner had been in continuous employment for the last about eleven years, when his services were terminated. Findings recorded to that effect have not been challenged by the management. The aforesaid decisions are fully applicable in the facts and circumstances of the present case.
For the reasons recorded above, the present petition is allowed. The impugned award dated 29.3.2010 is set aside. The respondent- management is directed to reinstate the petitioner with continuity of service and pay back wages from the date of award till his actual reinstatement.
12.9.2012 ([ENTITY]) vs Judge