CWP No. 5616 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 5616 of 2009 Date of decision: 30.05.2009 Ramphal son of Giani Ram, resident of VPO Aanta (Safidon), District Jind .....PETITIONER VERSUS The Divisional Forest Officer (Territorial), Karnal, District Karnal and another ..... RESPONDENTS CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. Ajit Atri, Advocate, for the petitioner. Mr. D.S.Nalwa, Addl. A.G. Haryana. for the respondents. *** AUGUSTINE GEORGE MASIH, J. (ORAL) In the present writ petition, the challenge is to the award dated 14.08.2008 (Annexure P-1) passed by the Industrial Tribunal-cum-Labour Court, Panipat, vide which although finding with regard to the workman having completed more than 240 days in the 12 preceding months from the date of his termination has been recorded but the reference has been answered against him only on the ground that he was a daily wager and, CWP No. 5616 of 2009 2 therefore, the termination of the services of the workman is as per the provisions contained under Section 2 (oo) (bb) of the Industrial Disputes Act, 1947. Counsel for the petitioner contends that when a specific finding has been given by the Labour Court that the workman has completed more than 240 days in the 12 preceding months from the date of his termination, which is based on the non-production of the original records by the Management and the factum with regard to the period of work, which the workman has put in with the Management, has not been disputed, the workman although may not be entitled to reinstatement in service in the light of the fact that his initial appointment was not in consonance with the statutory Rules governing the service but he would be entitled to compensation in the light of the judgment of the Hon'ble Supreme Court in the case of Telecom District Manager and others vs. Keshab Deb, 2008 (4) SCT 33 and the Division Bench judgment of this Court in the case of State of Haryana vs. Ishwar Singh and another, 2008 (3) SCT 788. Counsel for the respondents, on the other hand, submits that the Labour Court has decided the claim of the workman against him relying upon a Division Bench judgment of this Court, wherein it has been held that a daily wager although may have completed more than 240 days continuous service but it does not entitle him to continue in service as his termination would not amount to retrenchment and, therefore, Section 25-F of the industrial Dispute Act is not applicable. He submits that the award passed by the Labour Court is fully justified and does not call for any interference by this Court. I have heard the counsel for the parties and have gone through the records of the case and have also gone through the impugned CWP No. 5616 of 2009 3 award passed by the Labour Court. A perusal of the award would show that a specific finding has been recorded by the Labour Court on the basis of non-production of the records by the Management and taking an adverse inference thereon that the workman has completed more than 240 days in the last 12 preceding months from the date of his termination. It has also come on record that the workman was appointed on 01.11.1983 and he continued as such till 30.11.1997. It cannot be said, therefore, that the workman was not in service with the Management. The Management has taken a stand that it was a seasonal work and his services were terminated on completion of the said work. It was also the stand of the Management that he has not completed 240 days during the 12 preceding months from the date of his termination. Despite of the stand taken by the Management, the Management was unable to prove any of the assertion, which was made before the Labour Court and, therefore, the claim of the Management could not be sustained. It is true that a daily wager does not hold a post and it is also not in dispute that the initial appointment of the workman was not in consonance with the statutory Rules governing the service. The judgments of the Hon'ble Supreme Court clearly spell out that under these circumstances, the workman although may have completed more than 240 days in the 12 preceding months but would not be entitled to reinstatement on a public post as his initial appointment is in violation of the mandate and the scheme as provided under Articles 14 and 16 of the Constitution of India. At this stage, reference may be made to the following judgments of the Hon'ble Supreme Court in the cases of Ghazibad Development Authority and another vs. Ashok Kumar and another, 2008 (4) SCC 261, Mahboob Deepak vs. Nagar Panchayat, Gajraula, (2008) 1 SCC CWP No. 5616 of 2009 4 575, M.P. Administration vs. Tribhuwan, (2007) 9 SCC 748 and State of M.P. and others vs. Lalit Kumar Verma, (2007) 1 SCC 575. However, in a subsequent judgment, the Hon'ble Supreme Court in the case of Telecom District Manager and others vs. Keshab Deb, 2008 (4) SCT 33 and the Division Bench judgment of this Court in the case of State of Haryana vs. Ishwar Singh and another, 2008 (3) SCT 788, it has been held that where the service of the workman has been terminated not in accordance with the Industrial Disputes Act, the workman although may not be entitled to reinstatement but would be entitled to compensation for such termination. In the present case, a specific finding has been recorded by the Labour Court that the workman had completed more than 240 days in the 12 preceding months from the date of his termination. Meaning thereby that the termination of the services of the workman was not in accordance with the industrial Disputes Act as neither compensation was paid nor it is the case of the Management that his services were terminated by complying with the provisions contained under the industrial Disputes Act. That being the position, the workman would be entitled to compensation for the termination, which was not in consonance with the industrial Disputes Act and this would be just and equitable to balance the equities between the parties as he cannot be reinstated in service being a daily wager and thus not holding a post. In view of the above, the workman is held entitled to compensation. Since the workman has worked with the Management from 01.11.1983 to 30.11.1997 i.e. for a period just more than 14 years, he is held entitled to a compensation of Rs. 1,40,000/-. A direction is issued to respondent No. 1 to release the amount of compensation within a period of two months from the date of CWP No. 5616 of 2009 5 receipt of a certified copy of this order. Writ petition stands disposed of with the above direction. ( AUGUSTINE GEORGE MASIH ) JUDGE May 30, 2009 pj Whether referred to Reporters...................Yes/No.