C.W.P.No.19758 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.19758 of 2009 Date of Decision:- 19.05.2010 The Divisional Forest Officer, (Territorial), Bhiwani ....Petitioner(s) vs. Wazir s/o Sh.Sube Singh and others ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.D.S.Nalwa, Addl.A.G., Haryana, for the petitioner. None for the respondents. *** AUGUSTINE GEORGE MASIH, J. (Oral) Prayer in the present writ petition is for setting aside of the Award dated 6.3.2009 (Annexure P-1) vide which the reference has been answered holding the workman not entitled to reinstatement in service, however, a compensation of Rs.40,00/- has been ordered to be paid to him. Counsel for the petitioner-Management contends that the Labour Court has given a specific finding in para 11 of the Award that the workman has failed to prove that he had completed more than 240 days in service in the 12 preceding months from the date of his alleged termination and has further, in para 20 of the Award, held that there is no documentary evidence which could prove continuity of services of the respondent- workman with the petitioner-Department but has proceeded merely on the basis of the statement given by the workman that he had been working with the Department from 1986 to 3.9.2003 and has granted compensation of C.W.P.No.19758 of 2009 -2- Rs.40,000/- to him. His submission is that compensation could have been granted to the workman in case he had been able to prove before the Labour Court that his termination was in violation of the provisions of the Industrial Disputes Act, 1947. A specific finding has been given by the Labour Court that he had not completed 240 days in service in the 12 preceding months from the date of his termination and, therefore, protection under Section 25-F of the Act was not available to the respondent-workman. In the light of the fact that his termination was not in violation of the provisions of the Act, no compensation could have been granted to the petitioner and, thus, the Award passed by the Labour Court cannot be sustained. Notice of the writ petition was issued on 21.12.2009 to the respondent-workman Wazir son of Sube Singh, who was duly served. When the case came up for hearing on 11.3.2010, no one had put in appearance on his behalf and, therefore, he was proceeded against ex parte. The case was thereafter adjourned to 22.3.2010. On the said date, the case was adjourned to today i.e. 19.5.2010 but on none of the occasions, respondent-workman was present or was represented. I have heard counsel for the petitioner and have gone through the records of the case. As per the claim of the workman, the workman was engaged as a daily wage labourer in the year 1986 in Bhiwani Beat. Thereafter, he continued in service till his services were terminated in September, 2003 verbally by saying that his services were no more required. He alleged that he was appointed against a regular post and had completed more than 240 days in service in the 12 preceding months and, therefore, was entitled to C.W.P.No.19758 of 2009 -3- the benefit under the Act. The Labour Court, on the basis of the evidence brought on record, came to the conclusion that the respondent-workman had failed to prove that he had completed more than 240 days in service in the 12 preceding months from the date of his termination. The said finding is recorded in para 11 of the Award. Thereafter, the Labour Court while referring to the judgment of the Hon'ble Supreme Court in the case of Secretary, State of Karnataka vs. Uma Devi, 2006 (3) RSJ 572 and in Mahboob Deepak vs. Nagar Panchayat, Gajraula, 2008 (1) Law Herald (SC) 413 held that a daily wager cannot be reinstated in service as his appointment is through back door entry. However, while concluding the Award, the Labour Court has merely on the statement of the workman that he had worked with the Department from 1986 to 3.9.2003, has granted compensation to the tune of Rs.40,000/- although holding therein that the workman has not been able to prove the continuity of his service with the respondents due to lack of documentary evidence. In view of the fact that the termination of the services of the respondent-workman is not in violation of any of the provisions of the Act as is apparent from the perusal of the Award, especially from the finding that the workman had not completed more than 240 days in service in the 12 preceding months from the date of his termination, no compensation could have been granted to the respondent-workman by the Labour Court. Such compensation could only be granted in case the termination of services of respondent-workman was in violation of the provisions of the Act and he could not have been reinstated in service as his appointment was de hors the statutory rules and in violation of Articles 14 and 16 of the Constitution of India. Reference, at this stage, can be made to a judgment of the Hon'ble C.W.P.No.19758 of 2009 -4- Supreme Court in the case of District Telecom Manager and others vs. Keshab Dev, 2008 (4) S.C.T.33 and a Division Bench judgment of this Court in the case of State of Haryana vs. Ishwar Singh and another, 2008 (3) S.C.T. 788. In view of the above, the present writ petition is allowed and the impugned Award dated 6.3.2009 (Annexure P-1) passed by the Industrial Tribunal-cum-Labour Court, Hisar is hereby set aside. May 19, 2010 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE