C.W.P. No.14085 of 2009 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.14085 of 2009 Date of Decision: 23.11.2009 Sumer Singh .....Petitioner Versus The Chief Conservator of Forest, Haryana and others ....Respondents Present: Mr. Ashwani Bakshi, Advocate for the petitioner. Mr. D.S. Nalwa, Addl. A.G., Haryana. 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 award under challenge is rejection of a reference sought at the instance of the workman complaining that the termination had been effected in the year 1999 without following the mandate of Section 25-F of the Industrial Disputes Act. The workman's contention was that he had been working continuously from 01.01.1993 in Aravali Project and when the project stopped, he was also terminated from service. No written statement had been filed before the Labour Court but the Labour Court examined the evidence of the workman to find that the workman had been appointed only on a project as a daily rated worker and that with the cessation of project, his services were also terminated. The C.W.P. No.14085 of 2009 -2- Labour Court also found that there had been no proof that the workman had 240 days of continuous service prior to the date of termination. The Labour Court also examined the issue of the validity of the appointment and held that the order of appointment had been made by a person, who was not competent to make the order of appointment and on all the counts, the workman had failed before the Labour Court. 2. In the writ petition before the Court, learned counsel refers to the fact that in the absence of written statement by the management, the workman's contention that he had worked continuously for 240 days prior to the date of termination ought to have been accepted. A wide proposition, which is sought to be urged that if there was no statement, the workman's contention must be taken to be established, in my view, is not correct. The initial burden of proof relating to the engagement of 240 days of continuous service in order that non-compliance of Section 25-F could be urged can never to be taken as established without any clear evidence relating to the proof of his service prior to the termination. Even notice issued prior to the filing of the claim statement by the Union on behalf of the workman and several others similarly placed, does not specifically urge the contention that the workman had 240 days of continuous service. The notice only canvasses for redeployment of the workman in other projects and also takes up issues relating to a seniority list prepared by the management, which according to the Union did not fully accord C.W.P. No.14085 of 2009 -3- with the representations given by the Union. With no definite contention relating to the continuous service of 240 days by the workman, the complaint of violation of Section 25-F of the Industrial Disputes Act cannot simply stick. 3. The case has also been dealt with on another aspect that even if he had 240 days of service, the workman cannot complain of retrenchment by an admitted position that the workman had been employed on project and the further admission that the project had also come to an end in the year 1999. The Labour Court applied the situation, as one falling within the four corners of Section 2(oo)(bb) of the Industrial Disputes Act and rejected the workman's contention. 4. Learned counsel, Sh. Bakshi refers to a decision of the Hon'ble Supreme Court in S.M. Nilajkar and others Vs. Telecom District Manager, Karnataka AIR 2003 SC 3553, which dealt with the issue of what could constitute retrenchment and when the exception carved out through Clause (bb) in Section 2(oo) could still operate. The Hon,ble Supreme Court held: “...The termination of service of a workman engaged in a scheme or project may not amount to retrenchment within the meaning of sub-clause (bb) subject to the following conditions being satisfied:- (i) that the workman was employed in a project or scheme of temporary duration; (ii) the employment was on a contract, and not as a C.W.P. No.14085 of 2009 -4- daily wager simpliciter, which provided inter alia that the employment shall come to an end on the expiry of the scheme or project; and (iii) the employment came to an end simultaneously with the termination of the scheme or project and consistently with the terms of the contract. (iv) the workman ought to have been apprised or made aware of the abovesaid terms by the employer at the commencement of employment. The engagement of a workman as a daily wager does not by itself amount to putting the workman on notice that he was being engaged in a scheme or project which was to last only for a particular length of time or upto to the occurrence of some event, and therefore, the workman ought to know that his employment was short lived......” According to him, the mere fact that a workman was a daily wager would not itself amount to workman putting him on notice that he was engaged in a scheme or project. It should be clearly brought out to his knowledge that he was on a contract. The question of imputing knowledge would arise in case where the workman had not known that he was employed in a particular project and that the project had also actually come to an end. The contract itself was not required to be in writing and all that was necessary, was whether the workman knew that he was in a particular project and C.W.P. No.14085 of 2009 -5- that project also ended. Here in this case, the imputation of knowledge to workman is seen through an admission that he was on Aravali Project funded by the European Economic Community and that funding had stopped and that the project had also ceased. The application of Section 2(oo)(bb), under the circumstances, in my view is perfectly justified. 5. As regards the nature of engagement that it was illegal and that the dispensation of law in Secretary, State of Karnataka Vs. Uma Devi and others 2006(4) SCC 1 applied, they are founded on an alleged appraisal that the appointment order had been issued by the person, who was incompetent to issue the same. On the basis of evidence before me, I am unable to examine the circumstances under which the petitioner was appointed or whether the appointment was done by a person who was incompetent to make the appointment. I am making no observation with reference to the nature of appointment and at the same time, I should also state that there is no material before me to interfere with the finding rendered by the Labour Court. 6. There is no scope for interference in the writ petition. The writ petition is dismissed. No costs. (K. KANNAN) JUDGE November 23, 2009 Pankaj*