IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.3531 of 2000 Date of decision: 17.08.2009 Chief Engineer/Ranjit Sagar Dam, Irrigation Works Punjab, Shahpurkandi and another …Petitioner versus Rajinder Kumar and another .....Respondents CORAM: HON’BLE MR. JUSTICE K.KANNAN Present: Ms. Monica Chhibbar Sharma, Deputy Advocate General, Punjab. Mr. Kuldeep Singh Kapur, Advocate, for the respondent. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not ? 3. Whether the judgment should be reported in the digest ? K.Kannan, J.(Oral) 1. The award in challenge is a direction by the Labour Court directing reinstatement and 75% back wages. The admitted case is that the workman had been appointed on 01.11.1987 and his services came to be terminated on 20.06.1989. He filed a civil suit challenging the termination which was dismissed and the appeal also failed. The final adjudication by the Appellate Authority came on 03.08.1994 where the Court found that the appropriate remedy would be only before a Labour Court and the civil suit was not maintainable. The reference to a Labour Court came after a Civil Court’s adjudication. 2. The first objection for the learned counsel appearing for the State is that the suit was barred by the principle of res judicata, that the dismissal of the civil suit was a bar to the prosecution of the case before the Labour Court. In my view, it is just not the dismissal of the case Civil Writ Petition No.3531 of 2000 - 2 - between the same parties that would be relevant but it shall be a decision on merits by a Court of competent jurisdiction. This principle cannot be applied in cases where the earlier action fails for want of jurisdiction or such like issue that prevents the Court from adjudicating the matter on merits. In this case, admittedly the issue whether the termination was bad or not, was not an issue which the Civil Court had decided. The dismissal by a Court that it had no jurisdiction but not a Labour Court would have jurisdiction, cannot constitute a res judicata. 3. The learned counsel for the petitioner states that admittedly the workman was a casual worker and Rule 24.2 of the duly certified Standing Orders applicable to Ranjit Sagar Dam Project clearly provided that the services of an employee with less than one year service shall be terminable on 10 days' notice in writing or on payment of salary and allowances in lieu thereof by either party. It also provided that however, no notice shall be required to terminate the services of a workman who had less than three months' service or in the case of casual employees or those employed for a specified period. The learned counsel's submission is that since the workman was a casual employee, he was not entitled to any notice and the termination was perfectly justified. 4. The response of the learned counsel appearing for the workman to this objection was by reference to The Industrial Disputes (Punjab) Rules, 1958, which specifically provides under rule 76 maintenance of seniority list of workmen and in this case, it had been brought out that he had been terminated, while persons who had been engaged subsequently were continued to be retained. According to him, Civil Writ Petition No.3531 of 2000 - 3 - there had been a violation of Sections 25-G and 25-H. Further, his employment was not merely casual but he was in continuous service from 01.11.1987 to 24.06.1989, having completed more than 240 days of continuous service. The learned counsel would also refer to a decision of the Madras High Court that held in Elumalai and Management of Simplex Concrete Piles (India) Ltd., Madras and another-1977 II LLJ 454 , that even a casual worker is a workman within the definition of Section 2(s) of the Industrial Disputes Act. His contention was that even if he had been merely a casual employee, he was still a workman to whom the provision of the Industrial Disputes Act would apply. Referring to Section 25-J of the Industrial Disputes Act, his contention would be that the provisions of the Industrial Disputes Act shall have effect notwithstanding anything inconsistent therewith in any other law including the standing order made under the Industrial Establishments (Standing Orders) Act, 1946. His contention would therefore be that for a seeming conflict between the standing orders and the Industrial Disputes Act, the Industrial Disputes Act shall prevail and the provision in rule 24.2 shall have to suborn to the requirement of Section 25-F of the Industrial Disputes Act. 5. In this case, I am of the view that even the characterization of the employee as a casual labour cannot avail to management to terminate the services without following the procedure which is laid down under the provisions of the Industrial Disputes Act. Admittedly, the workman had more than 240 days of continuous service. The pre- eminence of the provisions of the Act over standing orders the contrary Civil Writ Petition No.3531 of 2000 - 4 - is irrefutable. The Labour Court had held that the termination was bad, not having been done in due compliance of the provisions of Section 25- F and I affirm the findings as having been made by due consideration of the relevant provisions of law and principles governing the same. 6. The last submission of the learned counsel appearing for the management is that the workman, who is admittedly treated a skilled employee, had been employed for construction of 24 type-IV houses and the work had been completed long time back in the year 1989, his continuance of service is no longer possible. There is no particular post to which he can be absorbed. According to the learned counsel Ms. Monica Chhibbar Sharma, in matters of public employment, there cannot be a direction for reinstatement, unless there is a civil post available. One important aspect which has to be borne in mind is that it is not a case where the workman seeks for regularization or creation of a post for re-employment. The only grievance is that for a consequence of termination without following due procedure, he shall be reinstated to the same position that he held and If he had been a casual employee, he shall go back as a casual employee. I am aware of the pronouncements of the Hon'ble Supreme Court and of this Court where the Courts have favoured, in matters of public employment, the concept of awarding compensation instead of directing reinstatement. The principles that would govern in cases of wrongful employment or illegal entry ought not to be in my view equated with an employment which is casual where parties are not at issue that the employment was either illegal or bad in Civil Writ Petition No.3531 of 2000 - 5 - law. Cases that give room to accommodate merely a claim for compensation ought to be confined only to cases where appointments are found to be illegal or the original entry was bad. There have been recent pronouncements of the Hon'ble Supreme Court, where even in relation to daily rated workers, there have been directions for reinstatement, applying the conventional industrial jurisprudence enunciated under Industrial Disputes Act, vide New India Assurance Co. Ltd. Versus A.Sankaralingam-(2008) 10 SCC 698. It shall be impermissible for a management to contend that the only relief that the person shall be entitled to apply for compensation. Appraising the award of the Labour Court in the jurisdiction under Article 226, I traverse no more than seeing whether there is a proper consideration by the Labour Court and whether there has been any wrongful statement by principles of law that would be required to be corrected. If there emerges a due consideration of the relevant principles and if the Labour Court had decided to direct reinstatement with 75% back wages, I am of the view that it has done so on its consideration that there has been no due compliance of the statutory provisions. I am not persuaded to take a different view than how the Labour Court had approached the issue. The challenge to the award of the Labour Court ought to fail. The writ petition is accordingly dismissed. No costs. (K.KANNAN) JUDGE 17.08.2009 sanjeev