C.W.P No.6673 of 2006 (O&M) -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P No.6673 of 2006 (O&M) Date of Decision: 02.09.2009 Range Forest Officer, Rewari and another .....Petitioners Versus Sh. Ram Chander and another ....Respondents Present: Mr. D.S. Nalwa, Addl. A.G., Haryana for the petitioners. Mr. Ashwani Bakshi, Advocate for respondent No.1. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporters or not ?Yes 3. Whether the judgment should be reported in the Digest?Yes -.- K. KANNAN J. I. Dispensation of the Labour Court 1. By the impugned award before the Labour Court Gurgaon, the workman's reference seeking for an adjudication that the termination was bad, was accepted and was directed to be reinstated with continuity of service and 50% back wages. The case of the workman was that he had joined the respondent-establishment as Mate on 17.07.1991, had completed more than 240 days of continuous service and that he had been illegally terminated on 15.09.1992 in violation of Section 25-F of the Industrial Disputes Act without giving notice and payment of retrenchment compensation. The contest on behalf of the management was on the ground that there was no post as Mate in Aravali Project and the nature of work was totally seasonal C.W.P No.6673 of 2006 (O&M) -2- and the petitioner himself was merely on daily wages. The contention was that the project had been funded by EEC that was taking up afforestation drive, which was purely an ecological objective. The workman had examined himself but the management failed to lead any evidence. The Labour Court found that the oral evidence of the workman went unrebutted and the workman's claim that he had worked more than 240 days was, therefore, bound to be accepted and passed the award as detailed above. II. Contentions on behalf of the State before High Court 2. The contention of the State through its counsel, Sh. Nalwa was that the onus of proof that the workman had completed 240 days of service was wholly on the workman and even though no evidence had been let in on the side of the management, the Court could not have accepted the workman's contention by his mere ipse dixit. It was the further contention on behalf of the management that the project had already closed down and wound up and therefore, the direction for reinstatement was improper. The claim for back wages also ought not to have been accommodated in favour of the workman in the manner done by the Labour Court. III. Examination of workman's contention regarding length of service 3. Although the issue objecting to the characterization of the Forest Department as an 'industry' had been taken in the writ petition, the same was not argued. The contention, therefore, veered on whether the workman's evidence could have been accepted by the Labour Court to grant the reliefs to the workman as sought for. Admittedly, the workman was a daily wager and the quality of C.W.P No.6673 of 2006 (O&M) -3- evidence would, therefore, depend on what the workman was capable of producing. Admittedly, the wages had been paid in cash and ought to have been entered in the payment register signed by the workman and retained by the management. If the management had participated in the proceedings, it should have been possible for the workman to summon the records from the management and pressed for presumptions against it, if the document had not been produced. When other documents to disprove the oral assertions by the workman was available and if the management has chosen not to produce the same even before this Court when writ petition was filed, I have no hesitation to hold that the workman's contention that he had 240 days of continuous service was true. The finding of the Labour Court is, therefore, affirmed. IV. Cessation of work or closure of project shall be matters of pleading and evidence 4. The further contention on behalf of the management was that the project itself had been closed and wound up and therefore, it is not possible to reinstate him in service. This fact cannot again be a matter of mere assertion in a writ petition where the management was bound to show that the project had closed and there is no longer any work available. The contention on behalf of the workman, however, was that the Forest Department is engaged in several projects and the workmen were retained and employed in various projects one after the other and mere closure of one project would not mean that the workman could not also be continued. In my view, no hard and fast rule could be made in a situation like this. It ought to be a matter of proof that would be governed by the terms of engagement. If the C.W.P No.6673 of 2006 (O&M) -4- workman himself had been appointed for a particular project, the closure of the project would also mean the cessation of the right of the workman to continue in service. In such a state, the termination will not even result in retrenchment and will be excepted from such an expression by the terms of Section 2(oo) (bb) of the Industrial Disputes Act. Such a contention must be a matter of specific pleading and evidence before the Labour Court. The management, in my view, shall not be permitted to urge that the engagement was only for a particular project and that the closure of project meant cessation of service as well. I, therefore, reject the contention and also affirm the finding that the termination made without complying with the statutory provisions of Section 25-F of the Industrial Disputes Act was illegal and incompetent. V. In cases of daily rated worker, is there a right of reinistatement? (a) In matters of public appointment 5. The forceful limb of the argument advanced on behalf of the petitioners by Sh. Nalwa was that since the workman was a daily wager, there was no scope for reinstatement at all. According to him, even in the absence of specific plea or proof, the Court must see in cases of public appointments whether the engagement was proper and whether there was a sanctioned post. The specific contention of the petitioner in the writ petition was that there was no sanctioned post as a Mate in the respondent's employment and therefore, he could not be reinstated. The starting point for the learned counsel to advance such a plea is said to reside in the proposition of law laid down in The Secretary, State of Karnataka Vs. Uma Devi and others (2006) 4 C.W.P No.6673 of 2006 (O&M) -5- SCC 1. (b) Conditions for applying the law in Umadevi's case 6. This decision has, in my view, absolutely no bearing to the case at all, although it could be a situation where we are dealing with the case of reinstatement of a person in a Forest Department, which is a public office. The decision of the Hon'ble Supreme Court has, in my view, a bearing only in relation to cases where the initial engagement is claimed to be illegal or the entry is shown to be a backdoor entry. The said decision could also be applied in cases where the recruitment is in violation of the relevant recruitment rules. In the said case, the Hon'ble Supreme Court was dealing with the case of regularization which the Constitution Bench held that the Court shall not grant reinstatement by the only fact of length of service. The exhortation that the Hon'ble Supreme Court made to the applicability of Articles 14 and 16 of the Constitution was in the context of how there could never be arbitrary appointments in public departments and a person who gains illegal entry cannot plead for his continuance by sheer length of service alone. In this case, it was nowhere pleaded either in the written statement or in the writ petition that the entry of the petitioner was irregular or a backdoor entry. It was also not contended that there had been any particular recruitment rules that provided for appointment to the post of Mate. It was not even shown that such a post did not exist in the Forest Department. It was also not contended that any particular recruitment rules have been violated. The workman himself had not claimed for any regularization and there was, therefore, no scope for the Labour Court also to direct C.W.P No.6673 of 2006 (O&M) -6- regularisation. It had merely directed reinstatement, finding that the termination was illegal. (c) Umadevi does not rule out reinstatement for daily wager 7. Learned counsel for the petitioner persisted that the same judgment also made specific observations in paragraphs 38 and 39 that would lend support to the view that a daily worker cannot be directed to be reinstated. Paragraph 38 reads as follows: "When a person enters a temporary employment or gets engagement as a constructual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post." C.W.P No.6673 of 2006 (O&M) -7- 8. In the said paragraph, the Hon'ble Supreme Court was rejecting contention of legitimate expectation of a person whose engagement was not based on a proper selection as recognized by the relevant rules or procedure. I have already pointed out that it is not even a plea anywhere that there was a particular procedure laid down which had been flouted in the case of engagement of the workman. Again paragraph 39 in the said judgment reads as follows:- "It was then contended that the right of the employees thus appointed, under Article 14 and 16 of the Constitution are violated. It is stated that the State has treated the employees unfarily by employing them on less than minimum wages and extracting work from them for a pretty long period in compassion with those directly recruited who are getting more wages or salaries for doing similar work. The employees before us were engaged on daily wages in the concerned department on a wage that was made known to them. There is no case that the wage agreed upon was not being paid. Those who are working on daily wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no C.W.P No.6673 of 2006 (O&M) -8- fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. The would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled." 9. The observation of the Hon'ble Supreme Court that there is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis to claim that they have a right to be absorbed in service must be read in the context that in that case the workmen were claiming a right of regularization. The term 'absorption' that the Hon'ble Supreme Court was using was in the context of regularization. A mere right to reinstatement itself was not discussed or adverted to by the Hon'ble Supreme Court. The reliance on this judgment by the learned counsel appearing for the petitioner to press for the point that the workman cannot claim reinstatement, in my view, appears to be not justified. C.W.P No.6673 of 2006 (O&M) -9- (d) Examination of specific instances of reported judgments 10. Learned counsel referred to a host of authorities, which according to him, have held, since the disposition in Uma Devi's case, that daily wager had no right to claim reinstatement. It shall therefore be examined if such a wide proposition as canvassed on behalf of the petitioner finds support through judgments relied on by him. I shall deal seriatum each one of the decisions to see either its applicability or otherwise to the facts in relation to the point in controversy before this Court. State of Bihar Vs. Upendra Narayan Singh and others (2009) 2 SCC (L&S) 1019 adverts to a case of temporary/ad hoc/daily wage employees claiming to be treated on par with the regular employees and for grant of regularization. The direction for regularization of persons, who had been illegally appointed was found to be unjustified. In that case a definite contention was raised that the appointments were illegal and against recruitment rules. That was again a case where regularization was sought. (e) Appointments against rules are a class in themselves 11. In State of Haryana through Executive Engineer, PWD, Public Health Division No.2, Sonepat Vs. Ishwar Singh and another 2008(3) SCT 788, the Division Bench of this Hon'ble Court held as a matter of procedure and law that if there was no definite pleading relating to the applicability of Section 2(oo)(bb) of the Industrial Disputes Act, management shall not be permitted to urge such a contention. I have applied the very same principle at the outset. The judgment is also authority for the proposition, according to the learned counsel appearing for the petitioner, that violation of Section 25-F of C.W.P No.6673 of 2006 (O&M) -10- the Industrial Disputes Act does not always lead to reinstatement. In that case, it was on a matter of concession by the learned counsel appearing for the workman that since the workman was a daily-rated worker, he could not be reinstated. Such a concession is available in paragraph 8 of the judgment, which reads "counsel for some of the workmen was fair enough to concede that the workmen cannot be reinstated but has mainly contended that the workmen are entitled to compensation........". I am not dealing with the situation of concession but a specific case where it is vehemently urged on behalf of the workman that he shall be entitled to be reinstated. It was again conceded in paragraph 17 of the judgment on behalf of the workmen that "...persons who had been employed on work-charge basis or daily basis and were not recruited in accordance with rules are not entitled to reinstatement. In that case the concession was in respect of a workman who had not been recruited as per rules. This is again not a situation in this case for, no specific rules are shown to have been violated. The ultimate conclusion which the Hon'ble Bench took that the workmen were not entitled to reinstatement in view of the submissions made already was in the context of specific violation of the rules of recruitment and the concession made by the counsel. Yet another bench decision of this Hon'ble Court in District Manager, Haryana Agro-Industries Corp. Ltd. Kaithal and another Vs. Workman Bhira Ram and another 2009(1) SLR 177, the Hon'ble Court dealt with cases of security guards on contract basis. Appointments were made in this case as per availability of work. In such a situation, it was obviously a case where Section 25-F was not C.W.P No.6673 of 2006 (O&M) -11- attracted at all. The reliance on this judgment was equally without any substance. The Bench had specifically held in paragraph 7 "in view of the nature of appointment of the respondent-workman, as noted above, we find that the respondent-workman cannot be directed to be reinstated....." They had also dealt with in an earlier paragraph of the fact that a daily wager does not hold the post unless he is appointed in terms of the Act or Rules framed thereunder and does not derive any legal right. This is not a case where any daily wager was staking a claim to a post. The decision of the Hon'ble Division Bench must be confined to cases applicable for contractual workers who are on daily basis and whose services could not be terminated. In Ashok Kumar Vs. Presiding Officer and another 2008(1) SLR 412, again, the Bench was considering the case of a workman not appointed as per rules and regularized and he was held to be on a contractual employment on daily wages. Cases of contractual employees to whom provisions of Section 2(oo) (bb) would apply are simply not cases to which Section 25-F could be attracted. Again cases where the engagement is contrary to the rules , Section 25-F cannot apply. In Divisional Forest Officer Vs. Mangat Ram and another 2009(1) SCT 62, the Hon'ble Division Bench of this Court referred to cases of backdoor entry and where an ad hoc or daily wager who sought to invoke Articles 14 and 16, the Hon'ble Bench of this Court held that an illegal entrant cannot be heard to invoke Article 14. At pargraph 6 of the judgment, the Bench specifically referred to a situation that "..the illegaility cannot be perpetuated by permitting the workman to be reinstated...." It was this aspect of illegal appointment C.W.P No.6673 of 2006 (O&M) -12- which the Division bench adversely commented about the order of the Labour Court. A Full Bench decision of the Patna High Court in Kameshwar Rai and others Vs. State of Bihar and others 2009 (122) FLR 511 also dealt with the case of illegal and backdoor entry. It held that "if the intial appointment is illegal and void especially in view of the statutory mandate of Section 66-B(2) of the Societies Act, the termination of service of a workman on that ground will not amount to retrenchment." The Full Bench was referring to specific rules that provided for the appointment under Bihar Cooperative Societies Act and the violation that involved to a statutory provision in Section 66. The said decision also has no relevance to us. Madhyamik Shiksha Parishad, U.P. Vs. Anil Kumar Mishra and others 2005 SCC (L&S) 628 dealt with the case of a claim for regularization where referring to Section 25-F, the Hon'ble Supreme Court held that the said provision merely imposed certain obligations on an employer at the time of termination of service and it would be inappropriate to import or apply that analogy in an extended or enlarged form to concede to the workman a claim for absorption. In paragraph 5, the Hon'ble Supreme Court held that there was no sanctioned post in existence to which they can be said to have been appointed. The assignment was an ad hoc one which anticipatedly spent itself out. It would be difficult to envisage for them the status of workmen, importing the incidents of completion of 240 days' work. After observing thus, the Hon'ble Supreme Court held that the completion of 240 days work does not under that law import the right to regularization. Municipal Council, Sujanpur Vs. Surinder Kumar C.W.P No.6673 of 2006 (O&M) -13- 2006 SCC (L&S) 967 held that appointment de hors the rules was bad in law and a workman can claim no more than compensation for termination for violation of Section 25-F. Referring to M.P. Housing Board Vs. Manoj Srivastava (2006) 2 SCC 702, the Hon'ble Supreme Court held that a person with a view to obtain the status of permanent employee must be appointed in terms of statutory rules. If it was not a case of appointment against the vacant post, which was duly sanctioned, it has to be only held that the appointment would be illegal. Rajasthan Tourism Development Corporation Ltd. and another Vs. Intejam Ali Zafri 2006-III-LLJ 155 held that when the initial appointment itself was void then the provisions of Section 25-F were not applicable. (e) Cases where re-instatement were not ordered – speical reasons 12. In Uttranchal Forest Development Corporation Vs. M.C. Joshi (2007) 2 SCC (L&S) 813, the workman who had been appointed as a daily wager working for a short period raised a dispute after six years of dismissal. The Hon'ble Supreme Court was not deciding a case of an appointment contrary to the recruitment rules nor were they laying down a law that reinstatement would not be possible. However, it took note of the fact that the legal position relating to public appointments had undergone a change from the decision of the Hon'ble Supreme Court in Secy. State of Karnataka Vs. Uma Devi. Keeping in view the nature and period of services rendered by the respondent (being an engagement as a seasonal worker for a third party from 01.08.1989 to 24.11.1991 and a case where demand was made nearly after six years after the termination), the Court found that C.W.P No.6673 of 2006 (O&M) -14- teh compensation of Rs.75,000/- could be justified. Yet another case of a short period that emerged no more than a relief of compensatoin was in Haryana Urban Development Authority Vs. Om Pal (2007) 2 SCC (L&S) 255 that a relief of reinstatement with back wages are not automatically be granted only because it would be lawful to do so. Grant of relief would depend on fact situation obtaining in each case where the respondent had worked admittedly for a short period. The direction for reinstatement was found to be illegal. (f) Compensation and not reinstatement – a recent trend: Principle depends on fact situtation and not an expression of rigid statement of law 13. In Madhya Pradesh Administration Vs. Tribhuban (2008) 1 SCC(L&S) 264, the Hon'ble Supreme Court was noticing this trend in recent decisions that the nature of appointment, authority of the concerned officer to make the appointment, etc., would all be taken to be relevant factors. It was a case where a Tribunal had only granted compensation and the Hon'ble Supreme Court held that there was no scope for interference. They were not at least dealing with the case whether appropriate relief could only be reinstatement. They found under the particular facts and circumstances, no ground to interfere with the Tribunal's decision. Afaq Hussain Vs. U.P. State Road Transport Corporation and another (2008) 2 SCC (L&S) 174 dealt with the case of a workman appointed for a period of three months initially and subsequently, he was paid one month's notice pay before his services were terminated. In paragraph 17 of the judgment, the Hon'ble Supreme Court had specifically observed that the jurisdiction of the Labour Court to pass an award of reinstatement is not disputed C.W.P No.6673 of 2006 (O&M)