CWP No. 6982 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 6982 of 2009 Date of decision: 27.01.2010 Satpal s/o Shri Ram ...... PETITIONER VERSUS The Presiding Officer, Industrial Tribunal-cum-Labour Court-I, Gurgaon and another ....... RESPONDENTS CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. Sarvjit Singh Khurana, Advocate, for the petitioner. Mr. D.S.Nalwa, Addl. A.G. Haryana, for respondent No. 2. *** AUGUSTINE GEORGE MASIH, J. (ORAL) Counsel for the petitioner contends that the award dated 18.02.2008 (Annexure P-1) passed by the Industrial Tribunal-cum-Labour Court-I, Gurgaon cannot be sustained with regard to the findings which have been given that the petitioner had not completed 240 days in service in 12 preceding months from the date of his termination. In support of this contention, he relies upon Annexure P-2, which is a document produced by the Management itself before the Industrial Tribunal-cum-Labour Court CWP No. 6982 of 2009 2 which gives the details of the days, on which the petitioner worked with the respondents. On the basis of the said document, counsel for the petitioner contends that the petitioner had completed more than 307 days in service in 12 preceding months from the date of his termination. The petitioner having completed more than 240 days in 12 preceding months from the date of his termination was entitled to the benefit and protection under the Industrial Disputes Act (for short 'the Act') and admittedly Section 25-F of the Act having been violated the petitioner is entitled to reinstatement in service. His further contention is that the persons junior to the petitioner were retained by the respondents and, therefore, Section 25-G of the Act has also been violated by the respondents entitling the petitioner to reinstatement in service with all consequential benefits. On the other hand, counsel for respondent No. 2 contends that the findings, as recorded by the Court below, are fully justified. He further contends that the onus was on the workman to prove that he had completed more than 240 days in service as also that the persons junior to the petitioner were retained by the respondents. No evidence was led by the petitioner to prove these factual aspects and, therefore, at this stage, the Court cannot interfere with the findings recorded by the Industrial Tribunal-cum-Labour Court on consideration of the evidence on record. He contends that it is not disputed that the appointment of the petitioner is dehors the Rules and, therefore, he being a daily wager is not entitled to reinstatement in service because it is in violation of the Constitutional scheme of appointment to a public post. I have heard the counsel for the parties and have gone through the records of the case. The contention, as has been raised by the counsel for CWP No. 6982 of 2009 3 respondent No. 2 with regard to the appointment of the petitioner being dehors the Statutory Rules and in violation of the provisions of Articles 14 and 16 of the Constitution of India, cannot be disputed with. That being the position, the petitioner cannot be reinstated in service. The contention of the counsel for the petitioner that the persons junior to the petitioner have been retained by the respondents and, therefore, Section 25-G of the Act has been violated, also cannot be accepted for the reason that no such pleading has been made by the petitioner in the present case in this Court nor has anything been brought on record before the Court below which would prove that the persons junior to the petitioner were retained by the respondents. However, the document (Annexure P-2), which is the detail of the period during which the petitioner had worked with the respondents, amply proves that the petitioner had, in the last 12 preceding months from the date of his termination, completed more than 240 days in service. The said document (Annexure P-2) has not been denied to be incorrect by the respondents. Although the onus is on the workman to prove that he had completed more than 240 days in service in the 12 preceding months from the date of his termination yet if the document, which was produced by the Management itself, showed that the petitioner had indeed completed more than the required period as stipulated under Section 25-F of the Act leading to the violation of Section 25-F of the Act, the petitioner would be entitled to urge and claim that he had completed the required requisite period. Although in the light of the findings given above, the petitioner would not be entitled to reinstatement in service still keeping in view the termination of the workman being in violation of Section 25-F of the Act, he would be entitled to monetary compensation for the period he had worked with the CWP No. 6982 of 2009 4 respondents for the illegal termination of his service. It is an admitted position that the petitioner had been appointed as Beldar w.e.f. 091.01.1994 and had continued with the respondents till 30.06.1999 thereby completing more than 5 ½ years of service with the respondents. Keeping in view the totallity of the facts and circumstances of the case, this Court is of the view that the interest of justice would be duly served if the compensation of Rs. 60,000/- is granted to the petitioner in lieu of reinstatement. Ordered accordingly. The amount be disbursed to the petitioner within a period of three months' from the date of receipt of a certified copy of this order. Petition stands disposed of. ( AUGUSTINE GEORGE MASIH ) JUDGE January 27, 2010 pj