C.W.P. No.17773 of 1997 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.17773 of 1997 Date of Decision:22.09.2009 Rashpal Singh .....Petitioner Versus Presiding Officer, Labour Court, Jalandhar and others ...Respondents Present: Mr. Mukesh Pandit, Advocate for Mr. R.K. Dadwal, Advocate for the petitioner. Ms. Monica Chhibbar Sharma, DAG, Punjab. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? No 2. To be referred to the Reporters or not ? No 3. Whether the judgment should be reported in the Digest? No -.- K. KANNAN J.(ORAL) 1. The writ petition challenges the award of the Labour Court rejecting a reference sought at the instance of the workman that he had been unlawfully terminated from service without following the statutory mandate under Section 25-F of the Industrial Disputes Act. The case has undergone a long trail of litigations but to no avail to the workman. The workman claimed that he had been employed since January, 1982 and he had been unlawfully terminated on 15.06.1987. The response of the management was that he had been employed only from 01.09.1985 for the project at Dholbaha Dam and when the work was completed, he along with several other workmen had been offered retrenchment compensation. The workman, according to the management, refused to receive the amount on the ground that a writ C.W.P. No.17773 of 1997 -2- petition had been filed and pending before this Hon'ble Court by some other workmen belonging to the same class and who were similarly affected. 2. It bears out in evidence that a writ petition had been filed in C.W.P. No.3809 of 1987 and it was disposed of on 02.09.1992 holding that the relief as provided in LPA No.740 of 1986 by this Hon'ble Court shall be considered and given to the workmen. The proceedings in LPA No.740 of 1986 are themselves not on record before this Court but, however, the observations of the Division Bench are culled out in the statement filed by the respondent. The crux of the order was that the management was required to consider the claims of the workmen whose services were terminated to be considered for redeployment in some other projects sympathetically. It is, further, evident from the records that a representation had been given by the workman to the management for consideration of his plea in terms of the directions of the Hon'ble Division bench in L.P.A. No.740 of 1986 but it was turned down by the management holding that the workman had been employed only for a particular project and it was not possible to employ him in any other project. This gave rise to another writ petition in C.W.P. No.15629 of 1991 and the workman secured no relief than a direction that he could make a fresh representation to the management. This representation was again rejected on 05.08.1992 holding that there was no work available in Dholbaha Project and the retrenchment compensation that they had offered had not been received by the workman and he was not entitled to stake a claim for fresh engagement in any other project. The C.W.P. No.17773 of 1997 -3- workman is reported to have filed a contempt petition for disobedience of the directions of the Hon'ble Court but that petition was also dismissed. 3. The ultimate disposition was that the workman's claim for reinstatement or redeployment elsewhere was not considered favourably. The workman was offered a liberty, as it were, by direction that he could raise an industrial dispute, if so advised. The dispute that he did raise has come to this Court for adjudication. Learned counsel appearing for the workman assails the award of the Labour Court by pointing out that when the attempt of the management was to show that they had paid a retrenchment compensation, the Labour Court non-suited the workman by holding that his engagement came within the excepted category from retrenchment by reference to Section 2(oo)(bb) of the Industrial Disputes and that there had been no violation of Section 25-F of the Industrial Disputes Act. He also refers to the evidence of the management witness to the effect that no retrenchment compensation was actually paid along with the notice and that no order was also passed in writing for the payment of compensation. All that was done was a verbal offer and no bill had even been prepared for the said compensation till date. The plea regarding Section 2(oo)(bb) in defence was not so expressly stated and the management was only trying to bring a justification for the discontinuance of employment. Considering the admissions made by the management witness and the management's own perception as to the entitlement of the workman to receive retrenchment compensation, it shall be impermissible for them C.W.P. No.17773 of 1997 -4- to contend that the workman was not retrenched and that his services merely stood terminated by reference to a situation as contemplated by Section 2(oo)(bb) of the Industrial Disputes Act. I find, therefore, the retrenchment on 15.06.1987 without following the mandate of Section 25-F of the Industrial Disputes Act to be bad in law. 4. The question that would still fall for consideration is whether the workman should be entitled to the relief of reinstatement. It has been held in several decisions that the relief cannot be granted merely because it is lawful to do so. It shall depend on the nature of engagement, the number of years of service, the number of years of pendency of litigation and the availability of work. Learned counsel for the workman would contend that the Dholbaha Project still exists and there are Beldars in employment. It is nobody's case that Dholbaha Dam has ceased to exist. The issue is whether there is availability of work for the workman and under what circumstances the services of the workman came to be terminated. Even while disposing of the representation on 05.08.1992, the management has made out a case that no work was available in Dholbaha Project. While examining the case after nearly 17 years, after an earlier disposal of representation by the management turning down the request of the workman and still later when it was taken up for consideration even before the Labour Court, it was specifically reiterated that the work was not available any longer, and that the workman at the initial stage of his engagement has been engaged only for the construction works at Dholbaha and no construction work existed now. The right of reinstatement just cannot avail to the C.W.P. No.17773 of 1997 -5- workman under such circumstances. As regards the number of years that he had put in, while workman's contention was that he had been engaged in January, 1982, the management conceded that the workman had been in employment from 01.09.1985 only. Having regard to the fact that the workman had two years of service and further in consideration of the fact of his termination as early as in the year 1987 and the workman has been fighting a long battle in Courts, the appropriate compensation to him, in my view, would be Rs.35,000/-, which amount shall be paid to him within six weeks from the date of receipt of the order failing which it shall attract interest @9% per annum. 5. The award of the Labour Court is modified only to the extent of providing for compensation as set out above. The writ petition is disposed of in the above terms. There shall be, however, no direction as to costs. (K. KANNAN) JUDGE September 22, 2009 Pankaj*