CWP No. 9532 of 2001 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 9532 of 2001 Date of decision: 07.04.2010 State of Haryana and another ...... PETITIONERS VERSUS Jasmer Singh and another ....... RESPONDENTS CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. D.S.Nalwa, Addl. A.G. Haryana, for the petitioners. Ms. Abha Rathore, Advocate, for respondent No. 1. *** AUGUSTINE GEORGE MASIH, J. The present writ petition has been filed challenging the Award dated 27.07.2000 (Annexure P-4) passed by the Industrial Tribunal-cum- Labour Court, Panipat, vide which the reference has been answered in favour of respondent No. 1-workman holding him entitled to reinstatement with continuity of service and full back wages on coming to a conclusion that the termination of the service of the workman was illegal for non- compliance of the provisions of Section 25-F of the Industrial Disputes Act. CWP No. 9532 of 2001 2 Counsel for the petitioners contends that the learned Labour Court has wrongly counted the days during which the workman has performed duties with Sub-Division Nos. 8 and 6 together. He contends that each Sub-Division is an independent entity and is under administrative control of different Executive Engineers. The appointing authority in both the Sub-Divisions being different, the days respondent No. 1-workman has performed duties as a daily wager with Sub-Division No. 8 cannot be counted for calculating the days put in by respondent No. 1-workman in 12 preceding months' from the date of his termination by counting the days put in by him in Division No. 6. In support of this contention, he relies upon a judgment of the Hon'ble Supreme Court in the case of Haryana Urban Development Authority vs. Om Pal, (2007) 2 Supreme Court Cases (L&S) 255. On this basis, he contends that the Award passed by the Labour Court cannot be sustained and deserves to be set aside. On the other hand, counsel for respondent No. 1-workman contends that the Labour Court has rightly proceeded to calculate the days put in by respondent No. 1-workman with the petitioner-Management. She contends that the Executive Engineer, Provincial Division No. III, PWD (B&R) Karnal is the overall Incharge of Sub-Division Nos. 8 and 6 and, therefore, the period of service rendered by respondent No. 1-workman with the petitioners had rightly been taken into consideration by the Labour Court while counting the period of days the workman-respondent No. 1 has put in service with the petitioner-Management in 12 preceding months' from the date of his termination. She, on this basis, contends that the Award passed by the Labour Court is in accordance with law and does not call for any interference by this Court. I have heard the counsel for the parties and have gone through the records of the case. CWP No. 9532 of 2001 3 Respondent No. 1-workman had submitted his demand notice claiming therein that he had been working as a daily paid worker in the office of the Sub-Divisional Officer/ Engineer, Provincial Division No. III, PWD, B&R, Karnal since 01.01.1993 and remained in service up to December, 1993. He had completed more than 240 days continuous service in one calendar year preceding his date of termination. The petitioner-Management had, without complying with the provisions of Section 25-F of the Industrial Disputes Act and in violation of Sections 25-G and 25-H of the Industrial Disputes Act, terminated the services of the workman. On this basis, the workman had prayed for reinstatement with continuity of service and full back wages. On the other hand, the stand of the petitioner-Management before the Labour Court was that Sub-Divisional Engineer, Provincial Sub- Division No. 8, PWD (B&R) Branch, Karnal has not been impleaded as a party and, therefore, the claim of the workman could not be entertained. The plea of the demand notice being time barred was also taken. Respondent No. 1-workman was employed as a daily wages muster roll by the Sub-Divisional Engineer, Provincial Sub-Division No. 8, PWD (B&R), Karnal in the month of January, 1993. He left the job of his own voluntarily in August, 1993. He had not completed 240 days in the said Sub-Division. Thereafter, the workman submitted himself in another Sub-Divisional Office No. 6 where other work was going on and got himself employed there as a fresh hand and worked up to December, 1993 and again left the job voluntarily. On this basis, it was pleaded that as the employer was separate, the periods during which the workman had spent in two Sub- Divisions, could not be added up together to calculate the days the workman had worked with the Management. As regards the claim of the CWP No. 9532 of 2001 4 workman that the juniors have been retained in service, it was submitted that as the workman had voluntarily left the job as such, the said plea could not be taken by the workman. On the basis of the evidence led by the parties, the Labour Court proceeded to pass the impugned Award holding the workman entitled to benefit of reinstatement in service with full back wages in compliance of the provisions of Section 25-F of the Industrial Disputes Act as by adding up, the days, which the workman had put in with Sub-Divisions No. 8 and 6, were more than 240 days during 12 months' preceding the date of his termination from service. The workman pleaded that he had worked for 310 days in Sub-Division Nos. 8 and 6 when taken up together. It was the stand of the workman that both these Sub-Divisions were under the same officer and, therefore, the period spent by him in both these Sub-Divisions was to be taken up together and counted towards the days during which the workman had put in service in 12 preceding months' from the date of his termination of service whereas the Management examined MW-1 Vipin Sharma, SDO, who had stated that the workman was appointed in Sub-Division No. 8 on muster roll daily wage basis from January, 1993 to August, 1994 and he himself left the work thereafter. He further stated that from October, 1993 to December, 1993, the workman worked with some other Sub-Division, which does not fall in National Highway Division as Sub-Division No. 8. The Sub-Division No. 6 Karnal, where the workman performed his duties from October, 1993 to December, 1993, was doing the work of construction of road and bridge. He has categorically stated that the administrative control of Sub-Division No. 6 and Sub-Division No. 8 is under the different Executive Engineers and the nature of work also is different of two Sub-Divisions. He had further stated that the construction CWP No. 9532 of 2001 5 of National Highways and the maintenance work being performed by Division No. 8 is one which is assigned by the Ministry of Surface, Government of India. The workman voluntarily left the job in September, 1993 and joined the new Sub-Division No. 6 in October, 1993 where he continued to work up to December, 1993. It was, therefore, the specific stand of the petitioner-Management that the appointing authority of two Sub-Divisions were different XENs and further the said Sub-Divisions had different nature of job, which was being performed by them. It is not the case of the workman that his services were transferred from Division No. 8 to Division No. 6, in compliance of which, he had joined his duties in Sub-Division No. 6 from Sub-Division No. 8. That being so, the stand of the Management is fully justified and thus, the Award passed by the Labour Court cannot be sustained. The contention of the counsel for respondent No. 1-workman that the Sub-Divisonal Officer/Executive Engineer, Provincial Division No. III, PWD (B&R) Karnal was the overall Incharge of the Sub-Division Nos. 8 and 6, does not make a difference when the appointing authority of respondent No. 1-workman is different. The case of the Management is fully covered in its favour by the judgment of the Hon'ble Supreme Court in the case of Haryana Urban Development Authority (supra), wherein the Hon'ble Supreme Court, on similar facts, has in paras 5 and 6 held as follows:- “5. The Industrial Tribunal-cum-Labour Court unfortunately did not go into the said question at all. If both the establishments are treated to be one establishment for the purpose of reckoning continuity of service within the meaning of Section 25-B of the Act, as was held by the Tribunal, a person working at different points of time in different CWP No. 9532 of 2001 6 establishments of the statutory authority, would be entitled to claim reinstatement on the basis thereof. However, in that event, one establishment even may not know that the workman had worked in another establishment. In absence of such a knowledge, the authority retrenching the workman concerned would not be able to comply with the statutory provisions contained in Section 25-F of the Act. Thus, once two establishments are held to be separate and distinct having different cadre strength of the workmen, if any, we are of the opinion that the period during which the workman was working in one establishment would not enure to his benefit when he was recruited separately in another establishment, particularly when he was not transferred from one sub-division to the other. In this case he was appointed merely on daily wages. 6. In Union of India vs. Jummasha Diwan, this Court opined: (SCC pp.545-46, para 8) There are several establishments of the Railway Administration. If a workman voluntarily gives up his job in one of the establishments and joins another, the same would not amount to his being in continuous service. When a casual employee is employed in different establishments, may be under the same employer e.g. the Railway Administration of India as a whole, having different administrative set-ups, different requirements and different projects, the concept of continuous service cannot be applied and it cannot be said that even in such a situation he would be entitled to a higher status being in continuous service. It is not in dispute that the CWP No. 9532 of 2001 7 establishment of Appellant 3 herein had started a project. His recruitment in the said establishment would, therefore, constitute a fresh employment. In a case of this nature, the respondent would not be entitled to his seniority. If the project came to a close, the requirements of Section 25-N of the Act were not required to be complied with.” In view of the above, the present writ petition is allowed. The impugned Award dated 27.07.2000 (Annexure P-4) passed by the Industrial Tribunal-cum-Labour Court, Panipat, cannot be sustained and is hereby set aside. ( AUGUSTINE GEORGE MASIH ) JUDGE April 07, 2010 pj