Civil Writ Petition No.7575 of 2004. -1- In the High Court of Punjab and Haryana at Chandigarh. Civil Writ Petition No.7575 of 2004. Date of decision:20-3-2008 Bansi Lal. ...Appellant. Versus Presiding Officer and another. ...Respondents. ... Coram: Hon'ble Mr. Justice K. C. Puri. ... Present; Mr. Vinod Gupta Advocate for the petitioner. Mr. D.S.Nalwa, Addl., AG Haryana for the respondents. ... K. C. Puri, J. Judgment. In this Civil Writ Petition filed under Articles 226/227 of the Constitution of India, the petitioner prays for the issuance of a writ in the nature of Certiorari for quashing the impugned order dated 7.10.2003, Annexure P-5, passed by respondent No.1. The facts necessary for the disposal of this Civil Writ Petition are that the petitioner was appointed as a Helper on daily paid basis on 8.1.1992 and his work and conduct was satisfactory. He was Civil Writ Petition No.7575 of 2004. -2- paid wages as per D.C.rates. Despite the petitioner has worked for more than five years and has completed 240 days in the last preceding year, his services were terminated on 17.8.1997 without any reason. It is further pleaded by the petitioner that before termination of his services, no charge sheet was issued to him. No enquiry was conducted by the respondent and no opportunity of personal hearing was also granted to him. Even, no show cause notice was issued to him before termination of his services. His services were terminated in an arbitrary manner and in violation of provisions of Industrial Disputes Act, 1947 (in short the Act). No seniority list was prepared and juniors to him were retained in service. When he was not reinstated, he sent demand notice dated 9.2.2001. The Government sent the matter to the Labour Court for adjudication. The Labour Court, vide award dated 7.10.2003, answered the reference in favour of the respondent/management and against the workman by holding that it was obligatory on the part of the employee to raise an industrial dispute within reasonable time after termination of his services. The reasonable period should not be more than one year. Hence, it was held that the services of the petitioner were not terminated, rather he himself had abandoned the job at his own will. Respondent No.2 contested the petition and filed written statement. It has been pleaded that one Bansi Lal son of Ganga Ram and not the petitioner was engaged as Helper Cook on 1.8.,1992 in the Civil Writ Petition No.7575 of 2004. -3- short scheme called nursery regarding which sanction was accorded by the Director Sports from time to time. After the abolition of the said Scheme, the services of said Bansi Lal came to an end. The engagement was only during the currency of said Scheme. He has abandoned the job of his own on 17.8.1997. Said Bansi Lal filed demand notice on 13.1.2001 i.e. after about three and half year and that, too, without any explanation regarding the delay in raising the industrial dispute. The petitioner worked for 153 days from 1.8.1992 to 31.12.1992, for four years from 1.1.1993 to 31.12.1996 and for 229 days from 1.1.1997 to 17.8.1997 as Cook Helper in a temporary scheme which was abolished on 17.8.1997. The petitioner abandoned the job on 17.8.1997 and after that date, no other Cook Helper was employed. The respondent supported the award of the Labour Court. I have heard arguments addressed by the counsel for the parties and have gone through the record of the case. Learned counsel for the petitioner has submitted that the Labour Court in its award dated 7.10.2003 has held that the petitioner has worked with the respondent as a daily Helper from 1.8.1992 to 17.8.1997 i.e. for more than 240 days in the last 12 months preceding 17.8.1997. The claim of the petitioner has been rejected on the ground of delay for making the demand notice from 17.8.1997 to 13.1.2001. The finding of the Labour Court that the demand notice cannot be raised after one year is without any basis. At the most, the learned Civil Writ Petition No.7575 of 2004. -4- Labour Court could dis-allow the back wages for the period of delay. There is clear cut non-compliance of Section 25F. So, in these circumstances, the award dated 7.10.2003 is liable to be set aside and the petitioner is entitled to be reinstated with full back wages in view of Division Bench authority of Punjab & Haryana High Court,reported as Subhash Versus State of Haryana, Civil Writ Petition No.13625 of 2002 decided on 27.8.2002. In reply to the above noted submissions, the learned counsel for respondent No.2 has submitted that so far as relief of reinstatement is concerned, the petitioner is not entitled for the same, in view of authority reported as Mahboob Deepak Versus Nagar Panchayat, Gajraula, 2008(1) Law Herald (SC),413. In that authority, it has been held that in case of a daily wager or ad hoc employee, even if the workman has completed 240 days, he is not entitled to reinstatement as his appointment is de hors the rules. In that authority, it has been further held that ad hoc employees are not entitled to invoke Articles 14 and 16 of the Constitution as their entry in Government service is back door entry. It is further submitted that there is not only the delay in serving the demand notice for more than 3-1/2 years, but, there is no explanation for the same. In view of authority reported as The Nedungadi Bank Ltd. Versus K.P.Madhavankutty and others, 2000(1) SLR 636, the petitioner is not entitled to any relief. The learned Labour Court has rightly non-suited the petitioner. Civil Writ Petition No.7575 of 2004. -5- I have heard both the sides and have gone through the record of the case. There are two aspects of the case. One is in respect of reinstatement in case the impugned award does not sustain the test of legal scrutiny. In this regard, the petitioner has himself pleaded in the petition that he was appointed as a Helper on daily basis as per D.C rates. So, the petitioner was not appointed by the management in accordance with Rules. In authority Mehboob Deepak case (supra), it has been held that even if the workman has completed 240 days and there is non compliance of Section 25F, the workman cannot be ordered to be reinstated. The only relief available to him is to claim the compensation. The amount of compensation has to be assessed keeping in view the length of service and other surrounding circumstances. So, even if there is non compliance of Section 25F, he can make claim for compensation. So, the chapter regarding his reinstatement stands closed in view of Mehboob Deepak's case (supra). So far as the claim of petitioner regarding compensation is concerned, in this regard, the impugned award of the Labour Court is relevant. The petitioner has not reported for duty after 17.8.1997. The learned Labour Court has given a finding that workman has himself abandoned the job and he has not furnished any explanation for not making demand notice for a period of more than 3-1/2 years and on that count, the petitioner is not entitled to seek any relief. That being a Civil Writ Petition No.7575 of 2004. -6- finding of fact cannot be interfered with in the writ jurisdiction. Otherwise also, the counsel for the petitioner could not bring any material on the record to interfere in the award. No doubt, there is no limitation for making the demand notice but the Apex Court in authority reported as Haryana State Coop.Land Dev. Bank v. Neelam, 2005 A.I.R (SC) 1843 has held that although there is no limitation prescribed under the Industrial Disputes Act, but it does not mean that irrespective of facts and circumstances of each, a stale claim must be entertained by the Government or the Court. The procedural laws like estoppel, waiver and acquiescence and doctrine of Acceptance Sub silentio are applicable even to the proceedings under the Industrial Disputes Act. Therefore, in view of above-said authority and keeping in view the fact that no explanation has been given for making the demand notice for a period of 3-1/2 years, the stale claim has been rightly rejected by the Labour Court. In the light of what has been held above, no ground for interference is made out. Consequently, this Civil Writ Petition stands dismissed. March 20 ,2008. ( K. C. Puri ) Jaggi Judge