IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.16144 of 1999 Date of decision: 19.08.2009 State of Haryana …Petitioner versus Presiding Officer, Industrial Tribunal-cum-Labour Court, Gurgaon and another ...Respondents CORAM: HON’BLE MR. JUSTICE K.KANNAN Present: Mr.D.S.Nalwa, Additional Advocate General, Haryana Mr. I.D.Singla, Advocate, for respondent No.2. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not ? 3. Whether the judgment should be reported in the digest ? K.Kannan, J.(Oral) 1. The award of the Labour Court directing reinstatement and back wages is in challenge through the writ petition at the instance of the Forest Officer, Mahendergarh. The contention of the workman was that he had been appointed as a worker w.e.f. 01.06.1978 and that he had been illegally terminated on 01.10.1993. The averment in the petition reads as follows:- “That the applicant was working w.e.f. 1.6.78 in the institution of the defendant on the post of labourer for Rs.1010/- P.M., the service of the applicant has worked upto 30.9.93.(sic)” The reply by the defendant as regards this averment was: “In reply of para No.1 of the claim statement it is stated that the plaintiff was engaged for the work from time to time as per availability of work at the wages rate fixed by Haryana Govt. ” Civil Writ Petition No.16144 of 1999 - 2 - On the above pleadings, the workman let in evidence referring to the fact that he had been in continuous employment for nearly 15 years. The management did not let any evidence. The Labour Court observed that all the records pertaining to the employment such as the payment registers, attendance registers and muster rolls ought to have been with the management. The evidence that all the records have been destroyed, the Labour Court observed was not believable especially when there was a litigation at his instance even earlier and held that there had been a violation of Section 25-F and directed reinstatement and back wages. 2. The learned counsel appearing for the State brings to my attention at the forefront that the worker had initially approached the Court in Civil Writ Petition No.12326 of 1990 when he was seeking for regularization of his services. The writ petition was disposed of with a direction to the workman to make a representation to the employer. Such representation was made and the authorities disposed of the representation on the following words:- “Your services were required purely as a labourer on Daily wage basis for the seasonal work and not as a regular employee. It is not possible to regularise your service. Therefore, I regret to inform you that your claim cannot be accepted. Your services are, therefore, liable to be terminated on the cessation of the work on which you were engaged.” This order disposing of his representation was challenged in Civil Writ Petition No.6503 of 1992. The Hon'ble Division Bench dismissed the writ petition finding that the reasoning of the authority that he had been employed as a labourer on daily basis for the seasonal work and not as a Civil Writ Petition No.16144 of 1999 - 3 - regular employee had a rationale and founded to conform to law. Therefore, the writ petition was dismissed. Significantly, the engagement of the services of the workman continued even after the dismissal of the writ petition in the year 1992 and according to the workman, he was terminated only on 01.10.1993. 3. The learned counsel's submissions are three-fold: one, it was the duty of the workman to show that he had 240 days of continuous service to entitle him to the benefit of Section 25-F and it could not have been merely a matter of assumption. Secondly, there was no regular post and he had been merely a seasonal employee. His services had been made without conforming to rules and therefore irregular. He cannot, therefore, seek for reinstatement. Thirdly, the service itself being seasonal, the cessation of work on the completion of the period would not amount to retrenchment as per the definition of Section 2(oo)(bb). 4. As regards the first contention that there was no proof by the workman that he had worked for 240 days, the fact that has to be seen is how the matter has been controverted in the written statement and whether there has been any definite evidence adduced by the management in response to the evidence given by the workman. I have already extracted the averment in the written statement as regards the contention of the workman that he had been on employment from 01.06.1978 to 01.10.1993. Except stating that the work was seasonal, the management had not denied in specific terms that he did not work during the period. Although the expression 'continuous service' was not Civil Writ Petition No.16144 of 1999 - 4 - made in the claim statement, in the context in which it was used and the subsequent reference by the workman that the termination had been made in violation of Section 25-F, the obvious purport of the pleading could be readily discerned. It is not as if there could have been some documentary evidence which he could have produced for a daily worker engaged in the service of the Forest Department. All the documents ought to have been only in the custody of the management. It was not the contention of the defendants that they had maintained no documents. On the other hand, the contention was that all the documents had been destroyed. The Labour Court did not find that explanation as acceptable, especially when the workman was engaging in the management in several disputes even prior to resorting to an action before the Labour Court. The Labour Court was perfectly justified in rejecting the statement on behalf of the management that the records had been destroyed. If there was an adverse inference drawn, it was under justifiable circumstances and I do not think that there is any reason to assail the said finding. I, therefore, confirm the finding of the Labour Court that the workman had continuous service from 01.06.1978 to 01.10.1993. 5. The learned counsel appearing for the State refers me to the alleged plea of the management before the Labour Court that the employment of the petitioner in the department was irregular. In the pleadings placed before the Labour Court, the contention was that the work was seasonal in nature and as such “the employment potential is highly erratic and irregular in nature”. Irregularity as found in para 3 of Civil Writ Petition No.16144 of 1999 - 5 - the award of the Labour Court is not with reference to the appointment itself, but it is stated in the context that the employment in the Forest Department is erratic and irregular in nature. Therefore, the contention to make it appear as though the engagement of service was itself irregular is definitely not justified. No relevant rules are brought before the Court to show that there could not have been any such daily rated workman in the Forest Department. All that is seen from the pleadings is that the management was claiming that it was a seasonal work and even the claim for regularization had been rejected only on the ground that it was seasonal. This aspect was also accepted by the Division Bench when a claim for regularization was rejected. I cannot still take the termination as flowing out of a situation which is contemplated under Section 2(oo)(bb). Such contention was not so expressly made and the nature of work in the Forest Department as erratic or irregular, in my view, ought not to be taken as contending for the position that the workman’s termination after the completion of work of 14 years to be merely a cessation of work on the completion of the season. I, therefore find that the termination which was made in October, 1993 without following the expression mandate of Section 25-F was bad in law. 6. The question still is whether the workman is entitled to the relief of reinstatement. If there was a justification for not engaging the services of the workman, it was the justification which the management has stated that there was no regular work which was available and therefore, he was being terminated. In every instance where a termination ensues without reference to Section 25-F, the Labour Court Civil Writ Petition No.16144 of 1999 - 6 - is still bound to see whether the relief of reinstatement shall be granted, having due regard to several factors such as the nature of engagement, the type of work that the workman is required to do, the availability of work etc. Having regard to the definite contention that had been taken in the pleadings, at the time when the workman’s claim for regularization was rejected and till the time when the writ petition was filed, the consistent case would be that there is no work available throughout the year and that his services would not be required. For a violation of the Section 25-F in this case, therefore, I hold compensation would be the only appropriate relief. Having regard to the fact that the workman had worked for over 15 years, in my view, even taking note of the fact that the workman had the benefit of Section 17-B throughout the pendency of the proceedings, a compensation of Rs.1.50 lakhs, in my view, would be just. 7. The award of the Labour Court is set aside and modified to accommodate the claim of the workman to compensation of Rs.1.50 lakhs which shall be paid within a period of eight weeks from the receipt of the copy of this order, failing which the amount shall bear simple interest of 7.5% per annum. 8. Subject to above, the writ petition is disposed of. (K.KANNAN) JUDGE 19.08.2009 sanjeev