C.W.P.No.18671 of 1996 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.18671 of 1996 Date of Decision:- 01.05.2009 Haryana Tourism Corporation Ltd., Chandigarh ....Petitioner(s) vs. Presiding Officer and another ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.K.K.Gupta, Advocate, for the petitioner. Mr.S.S.Dinarpur, Advocate, for respondent No.2. *** AUGUSTINE GEORGE MASIH, J. (Oral) By this order, I propose to dispose of C.W.P.Nos.18671 of 1996 preferred by the Haryana Tourism Corporation Limited and C.W.P.No.14848 of 1997 preferred by the workman (Sukhbir Singh). In these two writ petitions, challenge is to the award dated 10.7.1996 passed by the Industrial Tribunal-cum- Labour Court, Hisar, vide which the reference has been answered in favour of the workman holding him entitled to reinstatement with other benefits except back wages. The Haryana Tourism Corporation Limited has challenged the award as a whole whereas the workman-Sukhbir Singh in his writ petition has challenged primarily the findings recorded by the Labour Court wherein it has been held that the workman has put in 236 days of service with the Management. C.W.P.No.18671 of 1996 -2- Mr.K.K.Gupta, Advocate, counsel for the petitioner in C.W.P.No.18671 of 1996, contends that a categoric finding has been returned by the Labour Court that the workman has merely worked for 236 days with the petitioner-Management. The services of the workman were not terminated but as per record including the evidence produced by the Management and as accepted by the Court that, after February, 1990, the work was re-transferred back to the Transport Department and, therefore, there was no work available with the Management and further, the workman had himself not worked after the accomplishment of the task for which he was appointed. He, on this basis, contends that the findings which have been recorded by the Labour Court with regard to adoption of unfair labour practice by the Management is wholly uncalled for and unjustified. Counsel further contends that as held by this Court in the case of State of Punjab vs. Sh.Ram Murti and another, 1991 (2) RSJ 153, it was for the workman in the present case to have pleaded and proved that unfair labour practice was being adopted by the Management. He refers to the demand notice preferred by the workman wherein it has not been stated that his services have been terminated by adopting unfair labour practice. He contends that what has been alleged in the said demand notice is that the workman had completed more than 240 days in service and, therefore, the provisions as contained under the Industrial Disputes Act, 1947 having not been complied with, his termination was bad. In the writ petition preferred by the workman, the contention of the workman is that it is an admitted position that he joined the service of Haryana Tourism Corporation Limited on 5.7.1989 and he continued as such till the end of February, 1990, as has been admitted by Shri R.S.Dhull, C.W.P.No.18671 of 1996 -3- MW-1 witness of the Management in his statement before the Labour Court. He submits that the calculation as made by the Labour Court is erroneous as on calculating the period from 5.7.1989 till 29.2.1990, the same exactly comes to 240 days and, therefore, the findings as recorded by the Labour Court are, on the face of it, not correct. On this basis, a prayer has been made that the finding that the workman has worked for 236 days be set aside and it be held that the workman has completed 240 days of service with the Management. I have heard counsel for the parties and have gone through the records of the case. The submission as put-forth by Mr.Gupta, counsel for the Management, cannot be accepted and would in fact be relevant in view of the fact that on calculating the period from 5.7.1989 till 29.2.1990, the total period comes to 240 days. If this period of 240 days has been achieved by the workman in service with the Management, there can be no dispute that the provisions as contained under Section 25-F of the Act were required to be complied with in case his services were to be terminated. Since no evidence has been produced by the Management to show that the workman had indeed abandoned the job and further, as the statement of Shri R.S.Dhull, MW-1, would show that the work with the Management came to an end in the end of February, 1990, it cannot be said that the services of the workman were not terminated by the Management as the plea of abandonment would be available to the Management only if they had the work after that and the workman had refused or failed to make himself available for service. Since the Management has taken a plea that the work was not in existence, the question of abandonment does not arise. Having come to a conclusion that the workman had completed C.W.P.No.18671 of 1996 -4- 240 days with the Management and the provisions as contained under Section 25-F of the Act have not been complied with, the termination of the service of the workman was not in accordance with law and, therefore, the findings as recorded by the Labour Court to the extent of non-compliance of Section 25-F of the Act cannot be said to be illegal. Faced with this situation, Mr.K.K.Gupta, counsel for the Haryana Tourism Corporation Limited, contends that since the appointment of the workman was not against a sanctioned post and the workman was appointed on daily wage basis, he did not have any right to hold the post. He contends that the impugned award, therefore, cannot be sustained and deserves to be set aside. He relies upon the judgments of the Hon'ble Supreme Court in the cases Ghaziabad Development Authority and another vs. Ashok Kumar and another, 2008 (4) SCC 261, Mahboob Deepak vs. Nagar Panchayat, Gajraula, (2008) 1 SCC 575, M.P. Administration vs. Tribhuwan, (2007) 9 SCC 748, Uttranchal Forest Development Corpn. vs. M.C.Joshi, (2007) 2 SCC (L&S) 813, State of M.P. and others vs. Lalit Kumar Verma, (2007) SCC 575 in support of his contention. In the light of the above judgments, the employment of the workman admittedly being on daily wage basis and not against a sanctioned post and that too without complying with the provisions as contained in the statutory Rules governing the service for making a regular appointment, it cannot be said that the workman was holding a post on regular basis which would give him a right of reinstatement. That being so, the impugned award dated 10.7.1996 cannot be sustained. As the position emerges, the workman had completed 240 days C.W.P.No.18671 of 1996 -5- of service prior to his date of termination and, therefore, was entitled to protection of Section 25-F of the Industrial Disputes Act. Admittedly, the said provisions have not been complied with and, therefore, the termination of the services of the workman is not in accordance with the Act. In the light of the judgments of the Hon'ble Supreme Court referred to above, the workman may not be entitled to reinstatement in service but nevertheless, he would be entitled to compensation for his wrongful termination. He would, therefore, be entitled to compensation for Rs.10,000/- for the period he has worked with the Management. In support of this, reference may be made to the judgment of the Hon'ble Supreme Court in the case of District Telecom Manager and others vs. Keshab Dev, 2008 (4) S.C.T.33 and the Division Bench judgment of this Court in the case of State of Haryana vs. Ishwar Singh and another, 2008 (3) S.C.T. 788. In view of the above, the impugned award dated 10.7.1996 passed by the Industrial Tribunal-cum-Labour Court, Hisar, is hereby set aside. The workman is held entitled to compensation of Rs.10,000/-. A direction is issued to the Haryana Tourism Corporation Ltd. to release the afore-stated amount of compensation to the workman within a period of two months from the date of receipt of certified copy of this order. Both the writ petitions stand disposed of in the above terms. May 01, 2009 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE Whether referred to Reporters ________ Yes/No C.W.P.No.18671 of 1996 -6- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.14848 of 1997 Date of Decision:- 01.05.2009 Sukhbir Singh ....Petitioner(s) vs. The Presiding Officer, Industrial Tribunal-cum- Labour Court, Hisar and another ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.S.S.Dinarpur, Advocate, for the petitioner. Mr.K.K.Gupta, Advocate, for respondent No.2. *** AUGUSTINE GEORGE MASIH, J. (Oral) For orders, see separate detailed order of even date passed in C.W.P.No.18671 of 1996. May 01, 2009 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE