C.W.P. No.17295 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.17295 of 2008 Decided on :02-12-2008 District Forest Officer, Hisar & another ....Petitioners VERSUS Satish & another ....Respondents CORAM:-HON'BLE MR. JUSTICE HEMANT GUPTA. HON'BLE MR. JUSTICE NAWAB SINGH. 1.Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3.Whether the judgment should be reported in the Digest ? -.- Present:- Mr. Sunil Nehra, A.A.G. Haryana for the petitioner. Mr. Deepak Sharma, Advocate and Mr. Deepak Sonak, Advocate for respondent No.1. HEMANT GUPTA, J The challenge in the present writ petition is to the Award of the Labour Court dated 21.11.2006 (Annexure P-6), whereby respondent No.1 (hereinafter referred to as 'the workman') was ordered to be re-instated with continuity of service and also 50% back wages from the date of demand notice till the date of publication of the Award and full wages thereafter till reinstatment on account of violation of Section 25-F of Industrial Disputes Act, 1947 (for short 'the Act'). It is the case of the workman that he was engaged as a Beldar from on 7.2.1994 on daily wages. But on 1-1-1997, his services have been terminated. He challenged the said termination and then, the Management has arrived at a settlement under Section 12 (3) of the Act. He was again C.W.P. No.17295 of 2008 -2- reinstated under the said settlement w.e.f.13.03.1997. The grievance of the petitioner is that the Management has illegally terminated his services on 01.04.1999 without payment of retrenchment compensation and compliance of mandatory provisions of Section 25-F of the Act, is void. He claimed his wages to be Rs.1901.30ps per month and alleged that the Management has not paid him wages from September, 1998 to January, 1999. It is alleged that the Management has retained juniors and thus, there is violation of Sections 25-G and 25-H of the Act. On behalf of the petitioner-Management, it was pointed out that the petitioner has worked from November, 1992 to May, 1999, but with various gaps. It was alleged that the workman left job as per his own wishes after working for four days in May, 1999 and that his services were not terminated. Therefore, the workman is not entitled to be reinstated. The learned Labour Court raised adverse inference against the Management for not producing the entire service record of the workman. It was found that since the best evidence has not been produced by the Management, therefore, the presumption was raised in respect of working of the workman for 240 days in a calendar year from the date of his initial appointment. Learned counsel for the petitioner has relied on a decision of the Hon'ble Supreme Court in cases reported as Ghaziabad Development Authority & another Vs. Ashok Kumar & another, 2008 (4) SCC 261, Mahboob Deepak vs. Nagar Panchayat, Gajraula, (2008) 1 SCC 575, M.P. Administration Vs. Tribhuwan, (2007) 9 SCC 748, Utrranchal Forest Development Corpn. Vs. M.C. Joshi, (2007) 2 SCC (L&S) 813, State of M.P. and others Vs. Lalit Kumar Verma, (2007) 1 SCC 575, to C.W.P. No.17295 of 2008 -3- contend that the post under the State are required to be filled up in terms of the Recruitment Rules and by inviting applications from all eligible candidates. It is contended that the respondent-workman was engaged on daily wages without following the rules and principles of Articles 14 and 16 of the Constitution, therefore, even if the workman has completed 240 days of service, the said workman is not entitled to be reinstated and also for the grant of back wages. In M.P. Administration's case (supra), the Court held to the following effect:- 6. "The question, however, which arises for consideration is as to whether in a situation of this nature, the learned Single Judge and consequently the Division Bench of the Delhi High Court should have directed reinstatement of the respondent with full back wages. Whereas at one point of time, such a relief used to be automatically granted, but keeping in view several other factors and in particular the doctrine of public employment and involvement of the public money, a change in the said trend is now found in the recent decisions of this Court. This Court in a large number of decisions in the matter of grant of relief of the kind distinguished between a daily wager who does not hold a post and a permanent employee. It may be that the definition of "workman" as contained in Section 2(s) of the Act is wide and takes within its embrace all categories of workmen specified therein, but the same would not mean that even for the purpose of grant of relief in an industrial dispute referred for adjudication, application of constitutional scheme of equality adumbrated under Articles 14 and 16 of the Constitution of India, in the light of a decision of a Constitution Bench of this Court in Secy., State of Karnataka v. Umadevi and other relevant factors pointed out by the Court in a catena of decisions shall not be taken into consideration. 7. The nature of appointment, whether there existed any sanctioned post or whether the officer concerned had any C.W.P. No.17295 of 2008 -4- authority to make appointment are relevant factors." The said observations are in the context of engagement of a workman engaged on temporary basis from time to time. It was held that the Industrial Court exercises its discretionary jurisdiction under Section 11A of the Act, when it directs the amount of compensation to be paid to the workman. In Mahboob Deepak's case (supra), the Court held to the following effect:- 9. “Due to some exigency of work, although recruitment on daily wages or on an ad hoc basis was permissible, but by reason thereof an employee cannot claim any right to be permanently absorbed in service or made permanent in absence of any statute or statutory rules. Merely because an employee has completed 240 days of work in a year preceding the date of retrenchment, the same would not mean that his services were liable to be regularised.” In Ghaziabad Development Authority's case (supra), the dispute referred to the Labour Court was regarding termination of daily wagers appointed on ad hoc basis. It was held to the following effect:- 19. “A statutory authority is obligated to make recruitments only upon compliance with the equality clause contained in Articles 14 and 16 of the Constitution of India. Any appointment in violation of the said contitutional scheme as also the statutory recruitment rules, if any, would be void. These facts were required to the kept in mind by the Labour Court before passing an award of reinstatement. 20. Furthermore, public interest would not be subserved if after such a long lapse of time, the first respondent is directed to be reinstated in service.” In view of the above, we are of the opinion that the Award C.W.P. No.17295 of 2008 -5- granting reinstatment and back wages to the workman is not sustainable. Consequently, the impugned award dated 21.11.2006 (Annexure P-6), is set aside. Hence, we allow the present writ petition. Since the workman has worked for sufficient period, the petitioner is directed to pay compensation of Rs.40,000/- to the respondent-workman within a period of four months from the date of receipt of copy of the order. (Hemant Gupta) Judge 2nd December, 2008. (Nawab Singh) Monika Judge