IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP NO. 13886 of 2008 DATE OF DECISION: 30.03.2009 Rajinder Singh son of Shri Munshi Ram ….. PETITIONER VERSUS The Presiding Officer, Industrial Tribunal-cum-Labour Court, Panipat and others ….. RESPONDENTS CORAM:HON’BLE MR. JUSTICE AUGUSTINE GEORGE MASIH PRESENT: Ms. Abha Rathore, Advocate, for the petitioner. Mr. D.S.Nalwa, Additional Advocate General, Haryana, for respondents No. 2 and 3. *** AUGUSTINE GEORGE MASIH, J. (ORAL) In the present writ petition, the challenge is to the award dated 19.11.2007 (Annexure P-13) passed by the Industrial Tribunal-cum-Labour Court, Panipat, vide which the reference has been answered against the workman on the ground that the workman has not been able to prove that he had put in 240 days of service in the 12 preceding months so as to grant him protection under Section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act'). CWP NO. 13886 of 2008 -2- Counsel for the petitioner contends that the relevant records were called for and as a matter of fact, initially the award, which was given against the workman, was challenged by way of CWP No. 197 of 2006, wherein the award dated 08.09.2005 was challenged by the workman on the ground that the relevant record, as called for, by the Management, has not been produced before the Labour Court. The stand of the Management, which was taken before this Court, that the record got burnt, therefore, the same could not be produced, has not been accepted by the Division Bench of this Court, who vide order dated 28.10.2006, has remanded the case back for fresh decision. Thereafter, the Management has come up and stated that the record, pertaining to the Resoling Plant of the Tyre Section, is not available for the reason that the same stands burnt. The earlier record pertaining to the period 1.5.1990 to 31.1.1991 has also not been produced by the Management and, therefore an adverse inference has been drawn against the Management already. She contends that once the said assertion having been rejected by this Court, with regard to non-production of the record being burnt, the same could not have been taken as a ground by the Labour Court to give benefit to the Management. She further contends that the evidence, which has been led by the workman, of the co-workers, has been discarded by the Labour Court on the assumption that not even the Management has put the question in cross-examination leaving their statements going unchallenged. On the other hand, counsel for respondents No. 2 and 3 submits that non-production of the record, due to fire, is a good ground in itself to non-production of the record. The record pertaining to the attendance of the Tyre Section has been produced and he submits that no separate record of the Resoling Section was maintained. CWP NO. 13886 of 2008 -3- I have heard the counsel for the parties and have gone through the records of the case. Specific statements have been made by the witnesses produced by the workman, namely WW-3 Sunhara Singh, WW-4 Beer Singh and WW-2 Sahib Singh, wherein they have categorically stated that the workman had been appointed on 01.05.1990 and and he continued to work till 31.01.1991. The statements made by them are not under challenge on the question with regard to the period of work, which he has put in. The only question is with regard to the non-production of the records. Further the reason put forth by the Management witness for non- production of the record of the Resoling Section is that the same stood burnt during Anti Reservation Agitation. It is an admitted position that in cross-examination, when the question was put with regard to an FIR having been registered, the same has not been placed on record to justify the stand. As a matter of fact the plear that the record stood burnt, this plea pertaining to record, already stood rejected by the Division Bench of this Court on 28.10.2006, when the earlier award dated 08.09.2005 was challenged by the workman in CWP No. 197 of 2007. In totality of these circumstances and the evidence, which has been placed on record, which, with the able assistance of the counsel for the parties, I have gone through, the contention of the counsel for the petitioner deserves to be accepted that the workman has completed more than 240 days in the preceding nine months from the date of his termination as his service was for the said period. Due to non-production of the records and the evidence produced on record by the workman, it is amply proved that the workman has completed more than 240 days during the period, he worked with the Management. That being the position, the CWP NO. 13886 of 2008 -4- provisions of Section 25-F of the Act having not been complied with, as admitted by the respondent-Management before the Labour Court, the termination of the services of the workman would not be in accordance with law. Faced with this position, counsel for respondents No. 2 and 3 contends that the workman cannot be reinstated in service in the light of the various judgments, reliance whereof has been made by the Labour Court while rejecting the claim of the workman. Reliance has been placed by the State counsel on the decisions of the Hon'ble Supreme Court in the cases reported as Ghazibad Development Authority and another vs. Ashok Kumar and another, 2008 (4) SCC 261, Mahboob Deepak vs. Nagar Panchayat, Gajraula, (2008) 1 SCC 575, M.P. Administration vs. Tribhuwan, (2007) 9 SCC 748 and State of M.P. and others vs. Lalit Kumar Verma, (2007) 1 SCC 575 to contend that the posts under the State are required to be filled up in terms of the statutory rules governing the service by inviting applications from all eligible candidates and thereafter, on consideration of the same, the appointment can be said to be a valid appointment. It has been contended that the petitioner-workman was engaged on daily wages without following the rules and principles of Articles 14 and 16 of the Constitution, therefore, even if the workman has completed 240 days of service, the said workman was not entitled to be reinstated and also for the grant of back wages. In view of the above, I am of the opinion that the workman was engaged against a public post on daily wage basis. Such engagement was not in terms of the statutory Recruitment Rules applicable to the post which would have required giving opportunity to all eligible candidates to apply and to be considered for appointment. Therefore, the workman cannot be CWP NO. 13886 of 2008 -5- ordered to be reinstated. In Jaipur Development Authority vs. Ramsahai and another, 2006 (II) SCC 684, the Hon'ble Supreme Court has held that even in case of breach of the provisions of Section 25-G and 25-H of the Act, the workman cannot be ordered to be reinstated. As the workman has worked for a period of about nine months, I deem it appropriate to grant compensation amounting to Rs. 10,000/- to settle equities between the parties in lieu of reinstatement in the light of the judgment passed by the Hon'ble Supreme Court in Telecom District Manager and others vs. Keshab Deb, 2008 (4) SCT 33 and the Division Bench judgment of this Court in the case of State of Haryana vs. Ishwar Singh and another, 2008 (3) SCT 788. A direction is issued to the respondents No. 2 and 3 to release the amount of compensation, as assessed above, to the petitioner within a period of two months from the date of receipt of a certified copy of this order. Writ petition stands disposed of accordingly. ( AUGUSTINE GEORGE MASIH ) JUDGE March 30, 2009 pj