C.W.P. No.11745 of 2000 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. C.W.P. No.11745 of 2000 DATE OF DECISION : 7.3.2011 State of Haryana and others PETITIONERS VERSUS Sanjay Kumar and others RESPONDENTS CORAM : HON'BLE MR.JUSTICE MAHESH GROVER Present:- Shri Sunil Nehra, Senior D.A.G. Haryana for the petitioners. None for the respondents. MAHESH GROVER, J. The petitioners impugn the award dated dated 15.10.1998. The respondent/workman raised an industrial dispute under the provisions of Section 10(1)(c) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) and pleaded that the dispensation of his services was illegal and contrary to the provisions of Section 25(f)(g)(h) of the Act. A reference was made to the effect whether the termination of the services of respondent Sanjay Kumar was valid or justified and if not, to what relief he is entitled to ? The respondent/workman in order to substantiate his case pleaded C.W.P. No.11745 of 2000 -2- that he had been working from 11.3.1991 to 31.7.1991, 21.8.1991 to 20.9.1991, 5.1.1992 to 31.3.1992 when his services were terminated. He thus, pleaded that he had completed more than 240 days of continuous service and was protected by the provisions of the Act which contemplated that the petitioners could not terminate his services without complying with the provisions of Section 25(f) of the Act. He further pleaded that the petitioners had not complied with the provisions of Section 25(g) of the Act and a number of persons junior to him had been retained. The petitioners did not deny that the persons junior to the respondent/workman had been retained, but set up the plea that the respondent/workman was working on daily wages. It was specifically pleaded that he was working as a Helper on daily wages and thus dispensation of his services did not warrant the observance of the provisions of Section 25(f) of the Act. It was thus, pleaded that even if it is concluded that the respondent had completed 240 days of service, reinstatement could not have been granted in favour of the respondent/workman and the Tribunal has thus gone wrong while giving the finding. No one has put in appearance on behalf of the respondent/workman despite the fact that the case was listed for hearing for a number of days. The Court is left with no alternative except to evaluate the material on record with the assistance of the learned counsel for the petitioners. On due consideration, I am of the opinion that the finding of fact which has been returned regarding the respondent/workman having completed 240 days of service, need not be disturbed as the same is also borne out from the record. The only question is with regard to the reinstatement of the respondent/workman as an automatic consequence of the finding to the effect that the services of the respondent/workman had been wrongly terminated. There has been no denial to the fact that the respondent/workman was working on daily wages. He is thus, covered by the terms of his employment C.W.P. No.11745 of 2000 -3- which warranted that the employer could dispense with his services at any point of time. The order is no longer res-integra. The Hon'ble Supreme Court in Incharge Officer and another v. Shankar Shetty 2010(4) S.C.T. 261, after noticing the following judgments : “Jagbir Singh v. Haryana State Agriculture Marketing Board and anr. 2009(3) S.C.T. 790 ; U.P.State Brassware Corporation Ltd. and anr. v. Uday Narain Pandey, 2006(1) S.C.T. 77, Uttranchal Forest Development Corporation v. M.C.Joshi, 2007(2) S.C.T. 562 ; State of M.P. and ors. v. Lalit Kumar Verma 2007(1) S.C.T. 620 ; Madhya Pradesh Admn. v. Tribhuvan, 2007(2) S.C.T. 738 ; Sita Ram and ors. Moti Lal Nehru Farmers Training Institute, 2008(2) S.C.T. 660, Jaipur Development Authority v. Ramasahai and anr. 2006(4) S.C.T. 772, Ghaziabad Development Authority and anr. v. Ashok Kumar and anr. (2008) 4 S.C.C. 261” and in particular, with reference to the observations in Mahaboob Deepak v. Nagar Panchayat, Gajraula and another 2008(1) S.C.T. 310, observed as follows :- “It is true that the earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure. C.W.P. No.11745 of 2000 -4- Compensation instead of reinstatement has been held to meet the ends of justice. ............................ It would be, thus, seen that by a catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section 25-F although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee.” Similarly , in Senior Superintendent Telegraph (Traffic) Bhopal) v. Santosh Kumar Seal and others 2010(2) S.C.T. 609, the Hon'ble Supreme Court observed as follows :- “In view of the aforesaid legal position and the fact that the workmen were engaged as daily wagers about 25 years back and they worked hardly for 2 or 3 years, relief of reinstatement and back wages to them cannot be said to be justified and instead monetary compensation would subserve the ends of justice.” The Hon'ble Supreme Court in Incharge Officer and another v. Shankar Shetty 2010(4) S.C.T.261 went to conclude as follows :- “5. We think that if the principles stated in jagbir Singh and C.W.P. No.11745 of 2000 -5- the decisions of this Court referred to therein are kept in mind, it will be found that the High Court erred in granting relief of reinstatement to the respondent. The respondent was engaged as daily wager in 1978 and his engagement continued for about 7 years intermittently upto September 6, 1985 i.e. about 25 years back. In a case such as the present one, it appears to us that relief of reinstatement cannot be justified and instead monetary compensation would meet the ends of justice. In our considered opinion, the compensation of Rs.1,00,000/- (Rupees one lac) in lieu of reinstatement shall be appropriate, just and equitable. We order accordingly. Such payment shall be made within 6 weeks from today failing which the same shall carry interest at the rate of 9 percent per annum.” It is thus evident that the respondent/workman was employed on daily wages and the petitioners were well within their rights to terminate his services without complying with the provisions of 25(f) of the Act. The Tribunal was thus wrong in holding that the case of the respondent/workman fell within the definition of Section 2(oo) of the Act, whereas a perusal of the terms of employment reflected that the said workman was on daily wages and would not be covered by the definition of Section 2(oo) of the Act. The impugned award is therefore, set aside and the writ petition is accepted. (MAHESH GROVER) March 7, 2011 JUDGE GD WHETHER TO BE REFERRED TO REPORTER? YES/NO