Civil Writ Petition No.13469 of 2005. -1- In the High Court of Punjab & Haryana at Chandigarh. Civil Writ Petition No.13469 of 2005. Date of decision:2-4-2008. State of Haryana through Executive Engineer, PWD, Public Health Division No.2, Sonipat. ...Petitioner. Versus Ishwar Singh son of Shri Kanwar Singh, resident of village Mehndipur, Tehsil Sonipat, District Sonipat and another. ...Respondents. ... Coram: Hon'ble Mr. Justice Ashutosh Mohunta. Hon'ble Mr. Justice K. C. Puri. ... Present: Mr. Sunil Nehra AAG Haryana and Mr. D.S.Nalwa, AAG Haryana. Ms.Abha Rathore, Advocate. Mr. Vinod Gupta Advocate. Mr. Rajesh Punj, Advocate. Mr. Mani Ram Verma, Advocate. ... K. C. Puri, J. Judgment. Civil Writ Petition No.13469 of 2005. -2- Since common questions of fact and law are involved in Civil Writ Petition Nos. 13469 of 2005, titled State of Haryana Versus Ishwar Singh and another, 1644 of 1999 titled The State of Haryana and another Versus Prem Chand another, 9713 of 2002 titled Divisional Forest Officer, Mahendergarh Versus Rajinder Kumar and others, 9714 of 2002 titled Divisional Forest Officer Versus Madan Lal and others,17791 of 2003, titled State of Haryana Versus Ram Phal and another,9380 of 2004, titled State of Haryana Versus Om and others, 7923 of 2006 titled State of Haryana Versus Dharam Singh and another, 14972 of 2006 titled Executive Engineer, Western Yamuna Canal Versus Presiding Officer and others,17729 of 2006 titled Director Sports & Youth Affairs, Haryana Versus Patel and another,19276 of 2006 titled The Sub Divisional Engineer Versus Jai Kumar and others,3322 of 2007 titled Divisional Forest Officer Versus Mehar Singh and another,3324 of 2007 titled Divisional Forest Officer Versus Mange Ram and another,3569 of 2007 titled Divisional Forest Officer Versus Sube Singh and another,3570 of 2007, Chief Conservator and another Versus Rohtash and another,12403 of 2007 titled Executive Engineer Versus Satender Kumar and others, 12417 of 2007 titled Executive Engineer Versus Vinod and others,13487 of 2007, titled Divisional Forest Officer and another Versus Diwan Singh,14824 of 2007, titled Divisional Forest Officer and another Civil Writ Petition No.13469 of 2005. -3- Versus Gurnam Chand and another, by consent of learned counsel appearing on both sides, they are clubbed for the purpose of disposal, heard and are being disposed of by this common judgment. Facts have, however, been extracted from Civil Writ Petition No.13469 of 2005. It is pleaded in the petition that the respondent/workman was engaged as a Mali-cum-Chowkidar, who is unskilled worker, on purely daily wage basis on 1.11.1995 with the office of the petitioner/management and the workman worked upto February, 1997 as per his requirement and paid as such. The services of workman/respondent No.1 were retrenched as per provisions of Industrial Disputes Act, 1947 (hereinafter referred to as the Act) as there was severe financial crunch. In compliance with the instructions, Annexure P-1, retrenchment notice as per the Act was issued to the respondent No.1 by the petitioner vide letter No.2207 dated 31.3.1997 in which he was offered a sum of Rs.2,165/- i.e. one month salary amounting to Rs.1,443/- and Rs.772 as 15 days' pay as retrenchment compensation. The respondent No.1 did not accept the retrenchment notice and the compensation from the office of concerned Sub Divisional Engineer, Public Health Sub Division, Ganaur. The respondent No.1/workman did not turn up to receive the same. It is further pleaded that respondent No.1/workman then filed a demand notice dated 14.6.2000 before the Labour Court, Sonipat which was duly replied. The matter was accordingly sent to the Civil Writ Petition No.13469 of 2005. -4- Government for making a reference and a reference was made to the Presiding Officer, Industrial Tribunal-cum- Labour Court, Panipat. It is further pleaded that the management/petitioner in response to the reference, filed a detailed written statement pleading therein that the Department of PWD was not an industry and that the provisions of the Act were not applicable to the petitioner-department. Proper procedure was followed in accordance with the Act by issuing show cause notice dated 31.3.1997 and offering retrenchment compensation to the respondent/workman before retrenchment. No person junior to the workman has been retained in service as per State Government instructions. The Labour Court without appreciating the evidence on record recorded a finding vide impugned award, Annexure P-6, to the effect that the workman was entitled for reinstatement with continuity in service and full back wages from the date of filing demand notice i.e. 14.6.2000. The impugned award has been termed as illegal, arbitrary, unjust and against the settled provisions of law on the grounds that the services of the respondent No.1 were terminated after following due procedure of law as contained in the Act; that the respondent No.1 was not in service with the petitioner/management after the date of retrenchment and on the principle of “No work No Pay”, he was not entitled to back wages; that even otherwise no able bodied person was supposed to sit idle,rather he will run from pillar to post to seek his livelihood; that the respondent No.1 has not mentioned Civil Writ Petition No.13469 of 2005. -5- in the pleadings that he was not gainfully employed and that it was not believable that the respondent No.1 was not gainfully employed and as such he was not entitled to back wages. No written statement has been filed by respondent No.1. The first contention raised by the counsel for the petitioner is that appointment on daily wages is terminable. As per contract, the case will fall under clause 2 (oo) (bb) of the Act and will not amount to retrenchment as held by the Hon'ble Supreme Court of India in Municipal Council, Samrala Versus Raj Kumar, (2006) 3 Supreme Court Cases 81, Indian Drugs & Pharmaceuticals Ltd. Versus Workmen, India Drugs & Pharmaceuticals Ltd., (2007) 1 Supreme Court Cases 408, Reserve Bank of India Versus Gopinath Sharma and another, (2006) 6 Supreme Court Cases 221, U.P.Power Corporation Ltd. and another Versus Bijli Mazdoor Sangh and others, (2007) 5 Supreme Court Cases 755 and decision in Civil Writ Petition No.4550 of 2006 titled State of Haryana Versus Jasmer Singh and another. Learned counsel for the petitioner has further submitted that even if the Court is not inclined to accept the plea of the petitioner regarding applicability of Section 2(oo)(bb) of the Act, in that case also, the Labour Court has committed an error in ordering the reinstatement of the workmen. Admittedly, the workmen were not selected by any legally constituted Committee. The appointment of the Civil Writ Petition No.13469 of 2005. -6- workmen was on ad hoc basis. It was only due to exigency of work that the workmen have been allowed to work. Their appointment de hors the Rules. No legal right has accrued in favour of the workmen to hold the posts. Articles 14 and 16 of the Constitution shall not come to the rescue of the workmen as their appointment is against the Rules. So, in these circumstances, the Labour Court has committed grave error in ordering the reinstatement of the workmen. Even if there is non compliance of Section 25-F, in that case, the workmen can be allowed compensation and reinstatement could not be ordered in view of authority reported as Mahboob Deepak v. Nagar Panchayat, Gajraula, 2008(1) Law Hearald (SC) 413. In reply to the above noted submissions, learned counsel for the workmen has submitted that so far as the provisions of Section 2 (oo) (bb) are concerned, the employer must plead and prove the fact that the case of the workmen is covered by Section 2(oo)(bb). In the present case, none of the employers has pleaded that provisions of Section 2(oo)(bb) are attracted. The Hon'ble Apex Court in authority reported as S. M. Nilajkar and others Versus Telecom District Manager, Karnataka, (2003) 4 Supreme Court Cases 27 has dealt with this aspect of the case. In that ruling, it has been held that mere proof of employment of casual workers or daily-wagers in a project or scheme and termination of their services on the project or the scheme coming to an end not enough to attract the exception sub-cl.(bb) of the Civil Writ Petition No.13469 of 2005. -7- Act. Similar view was taken in authority reported as General Manager, Haryana Roadways Versus Rudhan Singh, (2005) 5 Supreme Court Cases 591, State of Haryana Versus Presiding Officer, Labour Court, Rohtak, 1999(3) SCT 136 and decision in Civil Writ Petition No.3222 of 1997, titled as Haryana Urban Development Authority and another Versus The Presiding Officer, Industrial Tribunal-cum- Labour Court, Panipat and another. 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 in accordance with the length of service in the Government department. It is submitted that even in authority reported as Mahbook Deepak (supra), also an amount of Rs.50,000/- was granted as compensation. So, in case the workmen are not allowed to join the Government service, being de hors the Rules, in that case also, compensation in a liberal term be granted in favour of the workmen as the Industrial Disputes Act is a welfare legislation. So far as the counsel for the remaining workmen are concerned, they have submitted that since there is non compliance of Section 25-F of the Act, the natural consequence is to re-instate the workmen on the posts on which they were working. We have carefully considered the submissions made by both sides and have gone through the record of the case. Civil Writ Petition No.13469 of 2005. -8- The first question, in this case, is whether the provisions of Section 2(oo)(bb) of the Act can be made applicable to the facts of the cases of the workman in question. To arrive at correct conclusion, the relevant provisions of Section 2(oo)(a),(b),(bb) and © are reproduced as under:- '2(oo) “retrenchment means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action but does not include- (a) voluntary retirement of the workman;or (b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or © termination of the service of a workman on the ground of continued ill-health. So far as clauses (a), (b) and © of Section 2(oo) are concerned, the same are not attracted to the facts of the present case. Civil Writ Petition No.13469 of 2005. -9- Moreover, it is not the case of any of the parties that provisions of sub clauses (a), (b) and © of Section 2(oo) are applicable to the facts of the present case. Now, the question arises whether the provisions of Section 2(oo)(bb) are attracted. From the bare reading of the said provisions of law, it is clear that the employer has to prove that the services of the workman were terminated as a result of non renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein. The said provision of law cannot be made applicable to all the cases of daily wagers/work charged employees. The employer has to plead and prove the fact that the case of the workman falls within the ambit of Section 2(oo)(bb) of the Act. The counsel for the employer were fair enough to concede that in none of the cases in hand, the employer has pleaded the fact that provisions of Section 2(oo)(bb) are are attracted. In authority reported as S.M.Nilajkar and others (supra), the Hon'ble Apex Court has held as under:- “A. Labour Law-Industrial Disputes Act, 1947-S.2(oo)(bb)- Retrenchment-Termination of services of workers employed in govt. project or scheme on expiry of the project or scheme-Object,scope and conditions for applicability of exception sub-cl.(bb)-Burden to prove the Civil Writ Petition No.13469 of 2005. -10- ingredients of sub-cl.(bb) on employer- Employment must be shown to be under a contract which stipulates that it would come to an end with the expiry of the project or scheme and the workers must be shown to have been made aware of such stipulation at the commencement of their employment-Mere proof of employment of casual workers or daily-wagers in a project or scheme and termination of their services on the project or the scheme coming to an end not enough to attract the exception sub-cl.(bb)-Sub cl. (bb) being inapplicable, held, termination amounted to retrenchment.” Similar view was taken in authorities reported as State of Haryana Versus Presiding Officer, Labour Court, Rohtak (supra) and Haryana Urban Development Authority (supra). So far authority reported as Raj Kumar (supra) is concerned, that authority is not helpful to the employer, so far the provisions of Section 2(oo)(bb) of the Act are concerned. In that authority, the workman had given an affidavit that he was engaged on contract basis by the Municipal Council, Samrala at the rate of Rs.1,000/- per month from 24.6.1994. He further stated in the affidavit that he had no objection if the Municipal Council, Samrala dispense with his services as they have a right to do so. In that case, the employer had taken a stand of applicability of Section 2(oo)(bb) of the Civil Writ Petition No.13469 of 2005. -11- Act and that stand is missing in the facts of the present case. So, that authority does not hep the case of the employer. So far as authority reported as Jasmer Singh and another (supra) relied upon by the counsel for the petitioner is concerned, that authority is not helpful to the case of the employer as from the facts of the said case, it is not clear whether the plea of applicability of Section 2(oo)(bb) of the Act was taken and that the same was adjudicated upon by the Labour Court. In none of the cases in hand, the Labour Court has adjudicated upon the fact whether the provisions of Section 2(oo)(bb) of the Act are attracted as the employer has not raised such an objection before it. So, the employer cannot raise the said objection for the first time before the Writ Court. In none of the authorities cited by the employer, it was discussed that the employer has pleaded the fact of applicability of Section 2(oo)(bb) of the Act. So, without pleading the factum of Section 2(oo)(bb) of the Act, the same cannot be made applicable to the facts in a given case. So far as the relief of re-instatement is concerned, Smt.Abha Rathore has conceded the fact that since the workmen were employed on work charge basis or daily basis and were not recruited in accordance with Rules, as such, they are not entitled to re-instatement. In authority reported as Indian Drugs & Pharmaceuticals Limited (supra), it has been held that in case of public employment, temporary Civil Writ Petition No.13469 of 2005. -12- employees, who included casual, daily-rated, ad hoc employees, etc. have no right to the post nor to continue in service, nor to get absorption, for less of being regularised and getting regular pay, nor can a direction be passed that a temporary employee be continued till the age of superannuation since there is no age of superannuation, as such employees have no right to the post at all and Articles 16 and 14 and 309 cannot be made applicable, in their favour. Judicial activism, in this connection, was deprecated. In authority reported as Jaipur Development Authority (supra), it has been held while dealing with Sections 25-G and 26-H, that daily wager employed intermittently for varying durations in various months, not appointed in accordance with Rules and found to have been not in continuous service cannot be ordered to be re-instated in public employment. However, lump sum amount was allowed to the workman. Again, the Hon'ble Apex Court in authority reported as Gopinath Sharma and another's case (supra), while dealing with daily wager, has laid down that workman not appointed to any regular post but engaged on the basis of need of work on day-to-day basis, had no right to the post and as such his disengagement on acquiring a qualification exceeding the maximum prescribed, could not be treated as arbitrary or amounting to wrongful dismissal. In authority reported as U.P.Power Corporation Ltd. (supra), the Supreme Court has held that industrial adjudicators' power to direct regularisation is against the principle of law laid down in Civil Writ Petition No.13469 of 2005. -13- Umadevi (3) case, (2006) 4 SCC 1. So far as the submission made by the other counsel for the workmen to the effect that the workmen are entitled to re-instatement is concerned, that submission is without any substance, in view of authorities discussed above and in view of authority reported as Mahboob Deepak. So, we have no hesitation in holding that the workmen are not entitled to re-instatement and in view of authorities discussed above, the workmen are held entitled to compensation as in all the cases, it has been held that there is non compliance of Section 25-F of the Act. Now, the question arises as to how much compensation, the workmen are entitled to in each case. In some of the cases, re-instatement of the workmen has been ordered with some back wages and in view of the discussion made above, their order of re-instatement and back wages stands set aside and the workmen are held entitled to compensation. So far compensation is concerned, keeping in view whole of the facts, circumstances and case law, we are of the considered view that Rs.20,000/- (Rs.Twenty thousands) shall be the just compensation for each completed year of service by the workmen and we order accordingly. All the Civil Writ Petitions stand disposed of in the above Civil Writ Petition No.13469 of 2005. -14- terms. ( K. C. Puri ) Judge April 2 ,2008. ( Ashutosh Mohunta ) Jaggi Judge