IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 8401 of 2009 . Date of Decision : May 28, 2009. Rajbir son of Shri Mangal Ram r/o Village Sanain, Tehsil Tohana, District Fatehabad. ...... Petitioner. Versus. Presiding Officer, Industrial Tribunal-cum-Labour Court, Hisar, and another. ..... Respondents. CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present:- Mr. Rajinder Goyal, Advocate, for the petitioner. AUGUSTINE GEORGE MASIH, J. (ORAL). Counsel for the petitioner contends that the services of the petitioner have been terminated without complying with the provisions of Industrial Disputes Act. He contends that the workman has completed more than 240 days in the 12 preceding months from the date of his termination. He further contends that junior to the petitioner has been retained in service, therefore, the award dated 19.03.2008 (Annexure-P-1), passed by the Industrial Tribunal-cum-Labour Court, is not sustainable. Notice of motion. On asking of the Court, Mr. D.S. Nalwa, Additional Advocate General, Haryana, accepts notice on behalf of respondent No. 2. With the consent of counsel for the parties, the case is taken up for final disposal. C.W.P. No. 8401 of 2009. In the present writ petition, the challenge is to the award dated 19.03.2008 (Annexure-P-1), passed by the Industrial Tribunal-cum-Labour Court, Hisar, wherein the Labour Court has proceeded to decide the reference against the workman solely taking into consideration the fact that the workman is a daily wager and therefore, does not have a right to hold the post. It has further been held that his services were not regular, and he would have no claim against the department, therefore, his termination is justified and in order being a daily wager. Counsel for the workman contends that the Labour Court has not taken into consideration the factual aspect nor has the Labour Court given any finding with regard to the contention of the petitioner-workman that junior to him has been retained in service and the workman has completed more than 240 days in the 12 preceding months from the date of his termination. He further contends that although the petitioner-workman may be a daily wager but the provisions of Industrial Disputes Act did apply on daily wager, if they fall within the ambit of protection provided under the Industrial Disputes Act. No finding on any of these aspects has been given by the Labour Court and for this reason he states that the award cannot be sustained. He relies upon the judgment of Hon'ble the Supreme Court in the case of Telecom District Manager and Others Versus Kesheb Deb, 2008 (4) S.C.T. 33, and Division Bench judgment of this High Court in the case State of Haryana Versus Ishwar Singh and another, 2008(3) S.C.T. 788, to contend that in any case if the petitioner-workman fulfills the requirement of Section 25-F of the Industrial Disputes Act, he would be entitled to compensation. -2- C.W.P. No. 8401 of 2009. Counsel for the respondent No. 2 on the other hand contends that the workman being a daily wager does not have any right to hold the post and therefore, the award passed by the Labour Court, is fully justified. He relying upon the judgments of Hon'ble the Supreme Court in the cases of Ghaziabad Development Authority and another Versus Ashok Kumar and another, 2008(4) S.C.C. 261, Mahboob Deepak Versus Nagar Panchayat, Gajraula, (2008) 1 S.C.C. 575, M.P. Administration Versus Tribhuwan, (2007) 9 S.C.C. 748, and State of M.P. and others Versus Lalit Kumar Verma, (2007) 1 S.C.C. 575, contends that the Hon'ble Supreme Court has held that the post under the State is required to be filled up in terms of the Recruitment Rules and by inviting applications from all eligible candidates. The workman was engaged on daily wages without following the rules and principles of Articles 14 and 16 of the Constitution of India, therefore, even if the workman has completed 240 days of service, the said workman is not entitled to be reinstated and also for grant of back wages. The workman in the light of the Judgments of Hon'ble the Supreme Court referred to above, is not entitled to reinstatement against a public post nor is he entitled to any back wages. I have heard counsel for the parties and have gone through the records of the case as well as the impugned award. I am of the opinion that the award does not sustain. The proceedings before the Court, which has the original jurisdiction and the pleadings and evidence led by the parties needs framing of issues which ultimately have to be decided by the Labour Court, taking into consideration the facts as pleaded and proved before the Court which mandates findings on the issues based on such pleadings and evidence. Those findings become the basis for determining the rights of the -3- C.W.P. No. 8401 of 2009. parties. The basic requirement, therefore, of the original court exercising its original jurisdiction, is to determine the facts by giving its findings on the issues. The basic contention, therefore, as raised by counsel for the petitioner in the present writ petition having not been looked into nor any finding been recorded by the Labour Court, the impugned award dated 19.03.2008 (Annexure-P-1), cannot be sustained and is hereby set aside. The writ petition is allowed. The case is remanded back to the Industrial Tribunal-cum-Labour Court, Hisar, for fresh adjudication in the light of the above observations in accordance with law. The parties are directed to appear before the Industrial Tribunal- cum-Labour Court, Hisar, on 08.07.2009. (AUGUSTINE GEORGE MASIH) JUDGE May 28, 2009. sjks. Whether referred to the Reporter : Yes / No. -4-