CWP No. 4248 of 2009 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH CWP No. 4248 of 2009 Date of decision September 8, 2009 Sanjeev Kumar ....... Petitioners Versus Presiding Officer-cum-Labour Court, Ambala and others ........ Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:- Mr. Madan Pal , Advocate for petitioner. Mr. Parveen Gupta, Advocate for Mr. Narender Hood, Advocate for respondent Nos. 2 and 3. **** 1. Whether reporters of local newspapers 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 **** 1. The award under challenge is rejection of a reference sought by the workman on the ground that he had been unlawfully terminated from service on 12.1.2002. The contention of the workman was that he had been engaged as a part time Mali from April, 1994 and he had been on duty continuously and had also completed 240 days of continuous service prior to the date of termination. The Management did not dispute that the workman did not have 240 days CWP No. 4248 of 2009 2 continuous service prior to the date of termination. On the other hand, the contention was that he was a daily wager and that his services were utilized as a part time Mali as and when work was there and his services were terminated because his work was no longer necessary. The Labour Court accepted the contention and found that his engagement was excepted under the provisions of Section 2 (oo) (bb) of the Industrial Disputes Act, 1947 (hereinafter referred to as the 'Act') and the termination did not take effect as a retrenchment to entitle the workman to complain of violation of statutory provisions under Section 25-F of the Act. 2. Learned counsel appearing for the workman took me through communications written by the Sub Divisional Officer passing on the representation given by the workman to higher officers recommending the name of the workman Sanjeev Kumar for regularization, having regard to the fact that there was work available at the Division and that he had been working as a Peon from the year 1998 without any let up. In the evidence of the Management witness it was again conceded by Ashok Kumar, the Sub Divisional Officer that the petitioner might have completed 240 days prior to 12.1.2002. He had also stated that there could be one day's gap after 89 days of duty. The workman had a definite case to contend that there were junior workmen who had been retained and some of whom were even regularized in service but the petitioner alone had been terminated from service in violation of the provisions of Section 25 (G) and (H) also. Apart from merely denying during the cross examination that there were juniors who were still working the Management witness was not able to refute the evidence given with reference to other persons, who had been engaged later but who continued in service. There was also nothing placed on record to show that the workman had been engaged on a contract basis for a particular purpose or under any stipulation which resulted in termination of service on the completion of CWP No. 4248 of 2009 3 such work or fulfillment of such stipulation. The application of Section 2 (oo) (bb) to a case situation where the workman had shown that he had worked for 240 days in the relevant period prior to termination was therefore, wholly unjustified. None of the ingredients under Section 2 (oo) (bb) is attracted in the case. A daily wager is not a person who could be dropped by the way side any time the Management thinks it possible. The Management is perforce to apply statutory provisions of Section 25-F, even if there was a justification for termination of service. In similar situation, the Hon'ble Supreme Court had affirmed the direction for re-instatement in Divisional Manager,New India Assurance Co. Ltd.Vs.A. Sankaralingam (2008) 10 SCC 698. The Division Bench of this Hon'ble Court had relying on Section 25-F of the Industrial Disputes Act, 1947 ruled on the pre- eminence of the reliefs under the Act and provided for reinstatement of daily rated workers in Dhani Ram Vs. Presiding Officer, Labour Court, Faridabad 2007 (1) SCT 59 as also in the decision in Senior Medical Officer in charge PHC, Vs. Sukhwinder Singh 2007 (2) SCT 112. 3. As regards the claim for back wages, it was elicited in the chief examination that the workman was remaining idle. In the cross-examination, it was elicited through him that he had two children, one of whom was going to School. He had stated in his evidence that he was doing labour work and was earning Rs. 3000/-. A suggestion put to him that he was doing full time work was denied. The workman gave evidence that he had not been gainfully employed in any sense other than doing labour work that was making both ends meet. Under the circumstances, I am of the view that the workman would be entitled to 50% of the back wages. 4. The award of the Labour Court rejecting the reference is erroneous and set aside. The workman shall be entitled to reinstatement with continuity of service and 50% back wages. CWP No. 4248 of 2009 4 5. The writ petition is allowed in the above terms. There is however, no direction as to costs. (K. KANNAN) JUDGE September 8, 2009 archana