IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 9904 of 1993. Date of Decision : March 09, 2010. Director Food and Supplies Department, Punjab, Chandigarh, and others ...... Petitioners. Versus. Shri Ajit Singh son of Bahal Singh c/o INTUC Ferozepur City, and another. ..... Respondents. CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present:- Ms. Monica Chhibbar Sharma, DAG Punjab, for the petitioners. Mr. M.K. Dogra, Advocate, for respondent No. 1. AUGUSTINE GEORGE MASIH, J. (ORAL). The prayer in the present writ petition is for quashing of the Award dated 09.10.1991 (Annexure-P-1), passed by the Labour Court, Bathinda, (hereinafter referred to as “the Labour Court”), wherein the reference had been answered in favour of the respondent No. 1/Workman (hereinafter referred to as “the Workman”), holding him entitled to reinstatement with continuity of service and back wages with effect from 30.04.1990, i.e., date of issuance of the demand notice. Counsel for the petitioners/Department (hereinafter referred to as “the Department”) submits that the Workman was engaged as a Chowkidar as daily rated worker, when the Department had been entrusted with the work of procuring foodgrains for the Central Pool of the Government of India. This engagement of the Workman was made for immediate works and when his service was no longer required, his service was terminated. She contends that as the appointment of the Workman was to keep pace with the exigencies of the situation, his appointment was not on a sanctioned post and, therefore, he cannot be held entitled to reinstatement in service with back wages. In C.W.P. No. 9904 of 1993. -2- support of this contention, she relied upon the judgments of Hon'ble the Supreme Court rendered in Jaipur Development Authority Vs. Ramsahai and another (2006) 11 SCC 684; Indian Drugs & Pharmaceuticals Ltd. Vs. Workmen, Indian Drugs and Pharmaceuticals Ltd. (2007) 1 SCC 408; Kanpur Electricity Supply Company Limited Vs. Shamim Mirza (2009) 1 SCC 20. She contends that in the abovementioned judgments, it has been held that reinstatement shall not be granted merely because it is lawful to do so. The reinstatement is thus dependent on the nature of employment, availability of work and number of years the Workman had put in etc. She contends that there are three categories of Chowkidars. The first category is of regular Chowkidars, who are appointed against sanctioned strength on regular scales of pay, the second category is of temporary Chowkidars, who are recruited through Employment Exchange and draw emoluments equivalent to regular Chowkidars and the third category belongs to daily rated workers, who draw fixed daily wages. The strength of third category of Chowkidars is dependent upon increase and decrease in the stock of foodgrains. They are appointed on the basis of exigencies and requirements on daily rated basis as and when situation arises. When the stock of the foodgrains procured depleted, the services of such daily rated chowkidars belonging to third category are terminated as no longer required. The respondent/Workman belongs to this third category. She on this basis contends that even if the finding as returned by the Labour Court that the Workman had continuously worked with the Department, the Workman would only be entitled to compensation and not reinstatement in service as there is no work available with the Department. She on this basis prays for setting aside of the impugned Award. On the other hand, counsel for the Workman submits that the Award passed by the Labour Court is fully justified. A finding has been C.W.P. No. 9904 of 1993. -3- returned on the basis of admission made by the Department that the Workman had worked with it on daily wage basis continuously for 2 ½ years till 30.04.1984 and was drawing Rs. 544/- per month as wages at that relevant time. It is also admitted on behalf of the Department that the Workman was not given either notice or compensation as provided under Section 25-F of the Industrial Disputes Act, 1947, (hereinafter referred to as “the Act”) at the time of termination of service of the Workman. The Workman having admittedly completed more than 240 days in service in the 12 preceding months from the date of his termination and Section 25-F of the Act having not been complied with by the Department at the time of termination of service of the Workman, the Workman has been rightly held entitled to reinstatement in service with back wages. He on this basis prays that the present writ petition be dismissed as the same is without any merit. I have heard counsel for the parties and have gone through the records of the case. The facts are not in dispute. The Workman had worked with the Department for 2 ½ years as a daily rated Chowkidar till 30.04.1984 and was drawing Rs. 544/- per month as wages. Neither any notice was served nor pay in lieu thereof or compensation as provided under Section 25-F of the Act had been given before terminating the service of the Workman. The termination of service of the Workman thus was not in accordance with the Act and thus illegal. Now, the question which requires consideration by this Court is whether the Workman whose service had been terminated in violation of the provisions of Section 25-F of the Act would be ipso facto entitled to the relief of reinstatement in service. It is settled by Hon'ble the Supreme Court in the judgments, which have been referred to above by counsel for the petitioner/ Department, i.e., Jaipur Development Authority (supra), Indian Drugs & C.W.P. No. 9904 of 1993. -4- Pharmaceuticals Ltd. (supra), and Kanpur Electricity Supply Company Limited (supra) that reinstatement in service shall not be granted merely because it is lawful to do so, but it would be dependent upon the nature of employment, availability of work and other similar factors. It is admitted by the Department that the Workman was employed as a daily rated worker. This appointment was made by the Department as it had been entrusted with the work of procuring foodgrains for the Central Pool of Government of India. The appointment, thus, of the Workman was for immediate works. On the depletion of the foodgrains, the work available with the Department of a Chowkidar came to an end, leading to termination of service of the Workman only by virtue of the situation that the stock of foodgrains procured for Central Pool of Government of India stood depleted on its transportation to other parts of the country. The situation thus is that the service of third category of Chowkidars was required for carrying out the work of collecting and sending the foodgrains to a Central Pool set up by the Government of India. Once the said process of collection and sending of the foodgrains was over, there being no work, the Workman would be rendered surplus. Under this situation, the services of the Workman had to be terminated. In the absence of any work, it is not possible to grant relief of reinstatement in service to the Workman. The admitted position by the Department is that the Workman had worked with it for a period of about two years and his services could not be terminated without resorting to Section 25-F of the Act. Since the relief of reinstatement in service cannot be granted to the Workman, the appropriate relief for non compliance of the statutory provisions by the Department shall be to compensate the Workman, which is determined at Rs. 50,000/-. Ordered accordingly. This amount shall be disbursed to the Workman within two C.W.P. No. 9904 of 1993. -5- months from the date of receipt of certified copy of this Order, failing which this amount shall attract interest @ 8% per annum. The impugned Award dated 09.10.1991 (Annexure-P-1), passed by the Labour Court, Bathinda, is hereby set aside. The writ petition is allowed, holding the Workman not entitled to reinstatement in service, but entitled to compensation of Rs. 50,000/- for non compliance of the statutory provisions, while terminating the service of the Workman. There shall, however, be no order as to cost. (AUGUSTINE GEORGE MASIH) JUDGE March 09, 2010. sjks.