C.W.P.No.16636 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.16636 of 2009 Date of Decision:- 17.05.2010 Attar Singh ....Petitioner(s) vs. The Chief Conservator of Forest, Haryana and others ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.Ashwani Bakshi, Advocate, for the petitioner. Mr.D.S.Nalwa, Addl.A.G., Haryana, for the respondents. *** AUGUSTINE GEORGE MASIH, J. Through this writ petition, the petitioner-workman has posed a challenge to the Award dated 12.05.2008 (Annexure P-6) passed by the Industrial Tribunal-cum-Labour Court-II, Gurgaon, vide which the reference has been answered against him holding him not entitled to any relief as he had failed to prove before the Labour Court that he had completed more than 240 days in the 12 preceding months from the date of his termination and further since his appointment was de hors the statutory Rules governing the service, he would not be entitled to the benefit of reinstatement as claimed by him. Counsel for the petitioner contends that the petitioner was appointed as a Beldar on 1.1.1992 on daily wage basis with the respondent- Department. No appointment letter, attendance card, pay slip etc. was C.W.P.No.16636 of 2009 -2- issued to him. He completed more than 240 days of continuous service with the respondent-Department. However, his services were terminated on 21.11.2002. The provisions of Sections 25-F and 25-G of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) were violated by the respondents as at the time of termination of the services of the petitioner, neither any notice was given nor pay in lieu thereof or the compensation was granted. Furthermore, juniors to him were retained in service or taken back on duty. Counsel contends that because of a typographical error which had crept in the claim statement so submitted by the petitioner before the Labour Court wherein inadvertently, the date of termination of his services was recorded as 21.11.2003 instead of 21.11.2002, the Labour Court has taken into consideration the period after the termination of the services of the petitioner i.e. from November 2002 to October 2003. He contends that in the demand notice, the date of termination of the services of the petitioner had been rightly mentioned as 21.11.2002. He, on this basis, contends that the claim of the petitioner has not been properly appreciated by the Labour Court although he had in his statement before the Labour Court asserted that his date of termination was 21.11.2002. He contends that if the period October 2002 to November 2002 is taken into consideration, the petitioner would complete more than 240 days in the 12 preceding months. This contention was raised by the counsel for the petitioner on 15.2.2010 when this case was taken up for hearing. He had further stated that if the records from October 2001 to November 2002 are produced by the respondents in this Court, he would be able to establish that the petitioner-workman had completed more than 240 days in service. On this contention raised by the counsel for the petitioner, a direction was issued to the respondents to C.W.P.No.16636 of 2009 -3- produce the relevant records from October 2001 to November 2002 vide order dated 15.2.2010. In compliance with the order passed by this Court, Sh.I.P.Singh, IFS, Divisional Forest Officer (Territorial), Mahendergarh, had filed an affidavit dated 3.5.2010, paras 1 to 3 whereof read as follows:- “1. That the petitioner Attar Singh s/o Sh.Murlidhar resident of village Pathera, Teh. and district Mahendergarh Haryana had not worked during the last span i.e. during October, November & December of year 2001 and May, September, October & November of year 2002 neither on daily wager nor on contractual basis. But he worked on contract basis with his party and the petitioner had not worked as a daily wager in the respondent department and no muster-roll had been issued. The detail of work as on contractual basis given as under:- Month No. of days Remarks 10/01 0 No muster-roll issued but in this period he had not worked on contract basis 11/01 0 -do- 12/01 0 -do- 01/02 0 He had worked on the capacity of contractor. 02/02 0 -do- 03/02 0 -do- 04/02 0 -do- 05/02 0 No muster-roll issued and he had not worked. 06/02 0 He had worked on the capacity of contractor. 07/02 0 -do- 08/02 0 -do- C.W.P.No.16636 of 2009 -4- Month No. of days Remarks 09/02 0 No muster-roll issued and he did not worked. 10/02 0 -do- 11/02 0 -do- 2. That the petitioner had not worked on muster-rolls even a single day for the period from 1-10-2001 to 30- 11-2002. 3. That the petitioner had not completed 240 days in a calendar year/12 months proceeding the month of abandonment of his service.” Along with the said affidavit, Annexure I, has been appended, according to which the stand of the respondent-Management is that no muster rolls had been issued for the months October, 2001, November 2001, December 2001, May 2002, September 2002, October 2002, November 2002. The petitioner had worked in the capacity of a Contractor in January 2002, February 2002, March 2002, April 2002, June 2002, July 2002 and August 2002. In order to prove that the petitioner-workman had worked as a Contractor for the months as mentioned herein-above, the payment register has been attached with the affidavit, according to which the petitioner has been paid an amount of Rs.9851/- in January 2002, Rs.7125/- in February 2002, Rs.9895/- in March 2002, Rs.7353/- in April 2002, Rs.13212/- in June 2002, Rs.15482/- in July 2002 and Rs.13809/- in August 2002. This shows that the petitioner had indeed worked as a Contractor with the respondent-Management and not as a workman. Even if the months for which the petitioner had worked in the capacity of a Contractor are counted, the same comes to 210 days, meaning thereby that C.W.P.No.16636 of 2009 -5- the petitioner does not complete more than 240 days in the 12 preceding months which would entitle him to the protection under Section 25-F of the Act. In view of the fact that the petitioner had worked as a Contractor for the months as stated above and had not worked in the capacity of a workman, the contention of the counsel for the petitioner that the juniors to the petitioner-workman had been retained in service, cannot be accepted. Furthermore, the contention that the persons junior to the petitioner-workman whose services were terminated on 9.8.1999, were taken back in service thereafter, has been duly considered by the Labour Court and it has come to the conclusion that no evidence worth the name has been brought on record to show that the petitioner-workman was similarly placed as Patram, Sunil Kumar and Rajender Kumar etc. and was senior to them. In view of the above, finding no merit in the present writ petition the same stands dismissed. May 17, 2010 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE