C.W.P No.13546 of 2002 (O&M) -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P No.13546 of 2002 (O&M) Date of Decision: 05.08.2009 Chief Engineer, PWD (B&R), Patiala and others .....Petitioners Versus Ghuman Singh and another ....Respondents Present: Ms. Monika Chhibbar Sharma, DAG, Punjab for the petitioners. Mr. Gurdip Singh, Advocate for respondent No.1. 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 Labour Court's award directing reinstatement of a workman, who claimed that he was illegally terminated from service is the subject of challenge before this Court. 2. The claim by the workman, who admittedly worked as a Chowkidar between July 1990 to July 1997 was resisted by the management on the ground that he had worked at various intervals with breaks to total period of 1044 days and he had been paid retrenchment compensation calculated for two years and ten months along with one month's salary. The Labour Court found that the amount paid fell short by a few hundred of rupees, namely, that instead of paying Rs.2650/-, the workman had been paid only Rs.2533/- and therefore, there was no statutory compliance. The Labour Court also found that the amount had been paid in cheque and C.W.P No.13546 of 2002 (O&M) -2- not by cash and therefore, the Section could not be said to have been duly complied. 3. Learned counsel appearing for the petitioner-management submits that the Labour Court could not have directed reinstatement in a case where there had been a substantial compliance of Section 25-F and there had been a bona fide mistake and the Labour Court ought not to have accepted a technical objection by the workman to merit a claim to reinstatement. Learned counsel also submits that there is no requirement in law that the money shall be paid only in cash and in this case a demand draft had been sent and was received. 4. Learned counsel appearing for the workman places reliance on a judgment of Hon'ble Supreme Court in Krishna Bahadur Vs. Purna Theatre and others 2004 SCC (L&S) 1086 where the Hon'ble Supreme Court was dealing with the case of payment of compensation of Rs.9030/- that fell short by Rs.552.87. The Hon'ble Supreme Court was dealing with the case impugning the decision of a Division Bench of Calcutta High Court that found that there had been substantial compliance and if there was a shortfall, it could be set right by directing that shortfall to be paid along with a compensation equivalent to wages for six months. This modification made by the Division Bench was interfered by the Hon'ble Supreme Court by finding that the provisions of Section 25-F were peremptory in character and it postulates the fulfillment of conditions laid down under the Section and if the mandatory requirement was not complied with, the retrenchment would be rendered to be void ab initio. The Hon'ble Supreme Court also dealt with the situation of how if there C.W.P No.13546 of 2002 (O&M) -3- had been any specific plea before the labour Court about any waiver by the workman or a bona fide mistake on the part of the management, a different conclusion was possible. Same is the situation here, where it is not possible to find that the workman had at any point of time waived his right having received the amount nor has there been a definite case of bona fide mistake on the part of the management before the Labour Court. Only a faint ground is taken not in express terms but while characterizing the award of the Labour Court that it had taken note of technical objections and did not take care of bona fide error. The decision of the Hon'ble Supreme Court referred to above squarely governs the issue and I have, therefore, no alternative except to find that the termination made was not in compliance with Section 25-F of the Industrial Disputes Act. 5. The question still remains whether the workmen could be directed to be reinstated. There was a definite case before the Labour Court that the post itself was not available and it was not possible to reinstate the person. Employment in public office cannot be made otherwise than through relevant recruitment rules and a daily-wager will not be entitled to seek as a matter of right a claim for reinstatement. Compensation, in my view, would be appropriate relief but the learned counsel appearing for the management states that even the Labour Court had found that the workman had been working under a contractor and that was the reason why back wages have not been awarded. It was the further contention of Ms. Monica Chhibbar Sharma, the counsel for the petitioner that during the pendency of the proceedings, the management has paid the benefit under Section 17-B C.W.P No.13546 of 2002 (O&M) -4- of the Industrial Disputes Act upto 29.02.2008 and over a period of time, the workman has received over Rs.1 lac. In my view, the duty to pay under Section 17-B in a case where the workman has the relief of reinstatement awarded by the Labour Court, is statutory in character and that cannot be a ground that can completely free the management from any further responsibility for the illegality in termination. It is also contended by learned counsel that the workman would have been superannuated in 2005 itself by the evidence that is available with reference to the election ID card issued in the year 2005. Learned counsel for the workman has denied the reference to the age in the 1995 election ID card and according to him, as per the ration card and the election card issued in the year 2006, he has still not reached the age of 58 years. It will not be possible for me to dwell at disputed questions of fact at this stage and even without going into such controversy, I am of the view that appropriate compensation would be Rs.25,000/-, which is directed to be paid within 8 weeks from the date of receipt of copy of the award, failing which it will carry simple interest @ 7.5% per annum. 6. The award of the Labour Court is modified and the writ petition is ordered as stated above. (K. KANNAN) JUDGE August 05, 2009 Pankaj*