IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.14142 of 2006 Date of decision : 4th September, 2008 The Executive Engineer and another … Petitioners Versus Presiding Officer, Labour Court and another … Respondents CORAM: HON’BLE MR. JUSTICE HEMANT GUPTA HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present : Mr. Munish Sharma, Advocate for Mr. Ajay Bhardwaj, Advocate for the petitioners. KANWALJIT SINGH AHLUWALIA, J. Present writ petition has been filed by Executive Engineer, Municipal Corporation, Ballabgarh Zone, Faridabad and Commissioner, Municipal Corporation, NIT, Faridabad challenging impugned award (Annexure P-3) dated 21.12.2005 passed by the Labour Court – II, Faridabad, whereby it has been ordered that respondent No.2 Surinder Kumar (hereinafter called the ‘workman’) is entitled to reinstatement with continuity in service without back wages. Respondent-workman had served a demand notice, on which following reference was sent to the Labour Court: “Whether the termination of services of Sh.Surender Singh is legal and justified? If not to what relief, he is entitled?” Civil Writ Petition No.14142 of 2006 Thereafter, respondent-workman submitted claim statement (Annexure P-1), in which it was stated that he was employed by the petitioner-management on 01.12.1993 as a Pump Operator and his monthly wages were Rs.1109.40 per month. It was averred therein that his services were illegally terminated on 01.02.1995. The management filed written statement (Annexure P-2). It was stated therein that the respondent-workman had worked only for 89 days from 01.02.1994 to 30.04.1994. Issues were framed and parties led their evidence. Learned Labour Court in para 14 of its award held that the workman had failed to prove that he had worked for more than 240 days and held as under: “14. So, in view of above discussion, I have no hesitation in holding that workman has failed to prove by leading cogent and convincing evidence that he was employed as a Pump Operator or Helper in the Municipal Corporation for more than 240 days and his termination was in violation of the provision of Section 25-F of the Industrial Disputes Act.” Having held that the workman had not worked for 240 days, it was stated that the onus was on the employer to prove that the workman had not worked for 240 days and it was observed as under: 15. It is now well settled that the onus of proving completion of not less than 240 days service under the employer during twelve calendar months preceding the date of termination of his service lies on the workman. Reliance in this regard may be placed on the observations in Mohan Lal vs. Management of Bharat Electronics Ltd. 1981 Lab. IC 806 (SC) Rathin Swami Nadar (ECP) vs. Labour Court 1964 II LLJ 86 (Mad. HC), V.K. Raj Industries, Aligarh Vs. The Labour Court (1) UP and others 1982 Lab. IC 511 (All HC) and Range Forest Officer Vs. S.T. Hadimani 2002 SCC (L&S) 367. 2 Civil Writ Petition No.14142 of 2006 16. In the present case the workman has failed to prove that he had worked for more than 240 days in 12 months preceding the date of his termination by leading cogent and convincing evidence thereof, both these issues are decided against the workman and in favour of the respondent.” On the basis of this reasoning, Labour Court concluded that the workman is entitled to reinstatement with continuity of service. We are unable to accept this reasoning of the Labour Court. It was for the workman to prove that he has worked for 240 days. Even otherwise, it has come on evidence that petitioner was a casual worker engaged on 89 days basis. Therefore, he could not be held to be entitled to reinstatement into service. It has nowhere come in evidence that appointment of the workman into public employment was in pursuance of any advertisement issued or his name was requisitioned through any employment exchange. Workman was a contractual employee. The workman could not be reinstated in view of judgment of the Hon’ble Supreme Court in State of Karnataka and others v. Umadevi and others (2006) 4 SCC 1. We find that the view taken by the Hon’ble Supreme Court in Municipal Council, Samrala v. Raj Kumar (2006) 3 SCC 81 is that unless an employee is appointed as per rules and regulations, his/her appointment cannot be treated to be consistent with Articles 14 and 16 of the Constitution. Appointment given de hors the rules and regulations is liable to termination and is covered under Section 2(oo) (bb) of the Act and thus, does not amount to retrenchment. Similarly, in Gangadhar Pillai v. Siemens Limited (2007) 1 SCC 533, Indian Drugs & Pharmaceuticals Ltd. v. Workmen (2007) 1 SCC 408, Reserve Bank of India v. Gopinath Sharma and another (2006) 6 SCC 221 and UP Power Corporation Ltd. 3 Civil Writ Petition No.14142 of 2006 and another v. Bijli Mazdoor Sangh and others (2007) 5 SCC 755, it has been held that reinstatement of a workman in public employment will not be consistent with Article 14 unless a workman had been appointed by following rules and regulations. Learned counsel for the petitioner-management has further relied on judgment of this Court in Suresh Kumar Sharma v. Presiding Officer, Labour Court, U.T. Chandigarh and another 2006(4) Service Cases Today 672, wherein it was held that retrenchment has been defined in Section 2(oo) of the Act but the same does not include exception under Section 2(oo)(bb). Termination of the service of workman as a result of non-renewal of the contract or employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation shall not amount to retrenchment and Section 25-F compliance is not required. In the above said judgment, it has been held as under:- “...Therefore, the question of workman taking the plea that the matter falls within the purview of Section 25-F of the Act does not arise. It is not a case where the workman was continuously appointed with artificial gap of one day or so to say that the management was prone to unfair labour practice. A conjoint reading of the said offer and the extensions thereof (Anneuxres P-1 to P-3) clearly shows that they were contractual and were for a fixed term. In this backdrop the case of the petitioner-workman falls within the said exception of Clause (bb). It is thus imperative to conclude that the termination of the workman did not amount to retrenchment as the same was in consequence with the terms and conditions of his appointment/extensions. Thus, the services of petitioner have come to an end with efflux of time. Once the conclusion logically so arrived is that the termination of the workman from the employment did not constitute retrenchment within the meaning of Section 2(oo) of the Act, in our view there is no 4 Civil Writ Petition No.14142 of 2006 question of application of Section 25-F of the Act. Our this view finds support from a decision rendered by Hon'ble the Apex Court in the case of Haryana State Agricultural Marketing Board v. Subhash Chand and another, 2006(2) SCT 23 (SC): 2006 (2) Law Herald (SC) 1053. The Labour Court has rightly considered this aspect of the matter that the services of petitioner-workman were discontinued after the expiry of fixed term and it is not open to him to raise dispute under the Act by taking the plea of applicability of Section 25-F of the Act”. Resultantly, we accept the present writ petition and set aside the impugned award passed by the Labour Court, whereby services of the respondent-workman were ordered to be reinstated. [HEMANT GUPTA] JUDGE [KANWALJIT SINGH AHLUWALIA] JUDGE September 04, 2008. rps 5