CWP No.4891 of 2003 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C. W. P. No. 4891 of 2003 Date of Decision: 29 - 11 - 2010 Superintending Engineer (B&R), P.W.D. ....Petitioners Circle and others v. Major Singh and another ....Respondents CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA *** Present: Ms.Sudeepti Sharma, DAG, Punjab for the petitioners. Mr.H.P.S.Aulakh, Advocate for respondent No.1. None for respondent No.2. *** KANWALJIT SINGH AHLUWALIA, J. (ORAL) The present writ petition has been filed by the Superintending Engineer, (B&R), P.W.D. Circle, near Kali Mata Mandir, Pathankot, Distt. Gurdaspur and others challenging the award rendered by the Labour Court, Gurdaspur, whereby the claim petition of Major Singh, respondent- workman was accepted and he was ordered to be reinstated into service with full back wages from the date of termination till his actual reinstatement. On 31.3.2003 while issuing notice of motion, operation of the impugned award was stayed, subject to compliance of provisions of Section CWP No.4891 of 2003 [2] 17-B of the Industrial Disputes Act, 1947 (hereinafter to be referred as, `the Act'). Respondent-workman on 10.5.1997 issued a demand notice, in which he stated that initially he was appointed as a daily wage Chowkidar w.e.f. 1.11.1994 on a fixed wages of Rs.1,200/- p.m. His services were terminated in April, 1995. Again he was appointed as a daily wage Chowkidar with effect from 1.1.1996 and his services were terminated on 12.12.1996 without giving any notice or charge sheet etc. It was stated that after the termination of his service, a demand notice was served on 18.12.1996 and in the proceedings before the Labour-cum-Conciliation Officer, Gurdaspur, the respondent-workman was again taken on duty in December, 1996 and he continued to perform the duties till April, 1997. Two-fold grievance was made by the respondent-workman that not only the provisions of Section 25-F of the Act have been violated, but there is also breach of Section 29 of the Act. Later on, on the basis of a demand notice issued by the respondent-workman, a reference was made by the State Government to the Labour Court, Gurdaspur. Statement of claim was filed in which the respondent-workman stated that no seniority list was prepared by the management and few persons junior to him were retained in service and the principle of `Last Come, First Go' was not followed. In response to the notice issued, the management stated that respondent- workman was appointed temporarily on muster rolls and worked on Ferry Bridge at Srihargobindpur for 3 months during the year 1996 i.e. for 29 days in February, 1996, 31 days in July, 1996 and 31 days in August, 1996. Thereafter, he worked for one month in April, 1997 and as such his total service was for 91 days and he has not completed a period of 240 days. CWP No.4891 of 2003 [3] Hence, the claim of the respondent-workman was liable to be rejected. The respondent-workman himself appeared in the witness box as WW1 and tendered into evidence his affidavit as Ex.W1. In cross- examination, he stated that he worked at Batala from 1.1.1996 to 12.12.1996. He admitted that work on the bridge of the river has been completed. Ram Murti, Work Mistri appeared as MW1 and Sham Lal, E.A. Engineer as MW2. The Labour Court held that the management failed to produce the record regarding entire service of the respondent-workman. It further held that record was not produced pertaining to the period for which the respondent-workman was working. Counsel for the petitioners is unable to assail the finding of the Labour Court that in cross-examination the witnesses of the management had admitted that they had not brought the record from 1.1.1996 to 12.12.1996. Therefore, the Labour Court rightly held that the record has been purposely withheld and drew adverse inference against the management and held that the respondent-workman had worked for more than 240 days. The Labour Court further returned the following finding: “20. … … … So, in my view, there is absolutely no evidence on the file on behalf of the resptd. to show that the workman was appointed against specific post regarding construction of ferry bridge at Srihargobindpur and in the absence of such evidence, it cannot be said that the services of the workman stood terminated automatically on the completion of the said construction work. So, as per settled law, if no written order was issued to the workman employing him for a specific period and for specific work, it has to be presumed that there was no contract of employment for a specific period and services of the workman could not be said CWP No.4891 of 2003 [4] to have been terminated on the expiry of the specific work. … … … XXXX XXXX XXXX XXXX XXXX XXXX 23. In view of what has been discussed above, I am of the considered view that the workman has completed continuous service of 240 days in a calendar year so as to attract the provisions of sec. 25 F of the Act. There is, however, no plea in the written statement or anything in the statements of both the witnesses of the resptd. that before terminating the services of the workman compliance of sec. 25 F was made. So when the workman has completed continuous service of 240 days, his services could not be terminated without complying with the provisions of sec. 25F of the Act. So the order of termination passed by the resptd. in 5/97 is clearly illegal, null and void and cannot be said to be proper and justified under any circumstances. So this issue is accordingly decided against the resptd. and in favour of the workman.” Counsel for the State has submitted that the initial appointment of the respondent-workman was not in consonance with the statutory regulations and Articles 14 and 16 of the Constitution of India and in view of Section 2(oo)(bb) of the Act, the dispute raised by the respondent- workman cannot be treated as an industrial dispute. Recently, this argument has been considered by Hon’ble the Apex Court in ‘Harjinder Singh v. Punjab State Warehousing Corporation’ (2010) 3 Supreme Court Cases 192, in which it has been held that the argument raised by counsel for the State cannot be accepted, for the first time, in the High Court when no such argument was raised before the Tribunal and also in the writ petition. In the present case, a reference was CWP No.4891 of 2003 [5] made in the month of March, 1996. The Labour Court had given its award on 15th January, 2002. It was the specific case of the workman that his juniors were retained in service and the principle of ‘last come first go’ was not followed by the management. In Harjinder Singh’s case (supra), Hon’ble the Apex Court observed as under: “16. It is true that in the writ petition filed by it, the corporation did plead that the dispute raised by the appellant was not an industrial dispute because he had not worked continuously for a period of 240 days, the learned Single Judge rightly refused to entertain the same because no such argument was advanced before him and also because that plea is falsified by the averments contained in para 2 of the reply filed on behalf of the corporation to the statement of claim wherein it was admitted that the appellant was engaged as work charge Motor Mate for construction work on 5.3.1986 and he worked in that capacity and also as work munshi from 3.10.1986 and, as mentioned above, even after expiry of the period of three months' specified in order dated 5.2.1987, the appellant continued to work till 5.7.1988 when the first notice of retrenchment was issued by the Managing Director of the corporation. Therefore, it was not open for the corporation to contend that the appellant had not completed 240 days service. Moreover, it is settled law that for attracting the applicability of Section 25-G of the Act, the workman is not required to prove that he had worked for a period of 240 days during twelve calendar months preceding the termination of his service and it is sufficient for him to plead and prove that while effecting retrenchment, the employer violated the rule of ‘last come first go’ without any tangible reason.” In view of the ratio of law laid down in Harjinder Singh’s case (supra), the award suffers from no infirmity. On the touchstone of the observations made by Hon’ble the CWP No.4891 of 2003 [6] Apex Court in ‘Anoop Sharma v. Executive Engineer, Public Health Division No.1, Panipat’ (2010) 5 Supreme Court Cases 497, the impugned award is to be upheld. In Anoop Sharma’s case (supra), Hon’ble the Apex Court, after examining the entire scheme of the Industrial Disputes Act, had said as under: “16. 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 Clauses (a) and (b) of Section 25-F 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. 17. XXXX 18. This Court has used different expressions for describing the consequence of terminating a workman's service/employment/engagement by way of retrenchment without complying with the mandate of Section 25-F 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 25-F(a) and (b) 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.” CWP No.4891 of 2003 [7] In view of the law laid down in Harjinder Singh’s case and Anoop Sharma’s case (supra), no interference is warranted in the present writ petition, and hence, the same is hereby dismissed. No costs. ( KANWALJIT SINGH AHLUWALIA ) November 29, 2010. JUDGE RC/rps