CWP No. 5113 of 2010 and other connected cases 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision: 22.03.2010 CWP No. 5113 of 2010 Military Farm, Pathankot through Farm Officer ...... PETITIONER VERSUS Pankaj Salaria s/o Sh. Kartar Singh and another ....... RESPONDENTS CWP No. 5118 of 2010 Military Farm, Pathankot through Farm Officer ...... PETITIONER VERSUS Som Raj s/o Sh. Jabbar Singh and another ....... RESPONDENTS CWP No. 5167 of 2010 Military Farm, Pathankot through Farm Officer ...... PETITIONER VERSUS Jaswant Rai s/o Balkar Dass and another ....... RESPONDENTS CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. K.K.Thakur, Advocate, for the petitioner. *** AUGUSTINE GEORGE MASIH, J. By this order, I propose to dispose of CWP No. 5113 of 2010 titled as Military Farm, Pathankot through Farm Officer vs. Pankaj Salaria s/o Sh. Kartar Singh and another, CWP No. 5118 of 2010 titled as Military Farm, Pathankot through Farm Officer vs. Som Raj s/o Sh. CWP No. 5113 of 2010 and other connected cases 2 Jabbar Singh and another and CWP No. 5167 of 2010 titled as Military Farm, Pathankot through Farm Officer vs. Jaswant Rai s/o Balkar Dass and another, wh erein common questions of fact and law are involved and the references preferred by the workmen were also disposed of by a common Award dated 21.10.2008 passed by the Central Government, Industrial Tribunal-cum-Labour Court, Chandigarh (Annexure P-13), which is under challenge in these writ petitions. Counsel for the petitioner contends that the Labour Court did not have the jurisdiction to entertain the reference and decide the same in the light of the fact that the petitioner is not an industry. He further contends that the judgment given by the Hon'ble Supreme Court in the case of Bangalore Water Supply and Sewerage Board vs. A. Rajappa and others, AIR 1978 Supreme Court 548, wherein the definition of the industry was explained by the Hon'ble Supreme Court, has been referred to a larger Bench for reconsideration, therefore, the Industrial Tribunal should not have proceeded to decide the reference and should have awaited the decision of the Hon'ble Supreme Court in this regard. He contends that the workmen had earlier preferred a petition before the Central Administrative Tribunal, Chandigarh Bench, which original application was dismissed by the Central Administrative Tribunal, Chandigarh Bench and, therefore, the claim of the workmen before the Industrial Tribunal shall be hit by the principle of resjudicata. He submits that the compensation of Rs. 20,000/- each, which has been granted to the workmen, is not sustainable and, therefore, the Award deserves to be set aside. I have heard the counsel for the petitioner and have gone through the records of the case. CWP No. 5113 of 2010 and other connected cases 3 The facts, which are not in dispute, are as follows- Som Raj joined the services of the petitioner on 06.05.1994, Pankaj Salaria on 07.08.1994 and Jaswant Singh on 01.06.1994 as Labourers. They continued to serve the petitioner-Management till 01.12.1997 when their services were terminated by the petitioner-Management. They preferred a reference before the Labour Court after their claim for regularization was rejected by the Central Administrative Tribunal, Chandigarh Bench vide judgment dated 26.03.1997 on the ground that their names were not sponsored by the Employment Exchange and their employment not being in consonance with the instructions governing the right for consideration for regularization. The Labour Court, on the basis of the pleadings of the parties and the evidence led by them, come to a conclusion that the workmen had completed more than 240 days in service in 12 preceding months from the date of their termination. It is an admitted position on behalf of the Management- petitioner that no retrenchment compensation was paid to the workmen at the time of termination of their services. The period of service with the petitioner-Management is not in dispute. Although the appointments of the workmen were not in consonance with the instructions governing their claim for regularization but still while terminating the services of the workmen, the provisions, as contained under Section 25-F of the Industrial Disputes Act, were required to be complied with, which admittedly has not been complied with for the reason that the retrenchment compensation, for the period the workmen had worked with the petitioner-Management, has not been paid to the workmen by the petitioner-Management as mandated under Section 25-F (b) of the Industrial Disputes Act. Thus, the termination of the services of the workmen was not in accordance with the Industrial Disputes Act. CWP No. 5113 of 2010 and other connected cases 4 The contention of the counsel for the petitioner that the petitioner is not an industry and, therefore, the reference could not have been entertained by the Tribunal, cannot be accepted. The criteria, as laid down by the Hon'ble Supreme Court in the case of Bangalore Water Supply and Sewerage Board (supra) for declaring an enterprise to be an industry, is fully applicable to the petitioner and thus, the findings, as recorded by the Industrial Tribunal-cum-Labour Court holding the petitioner as an industry, cannot be faulted with. The contention of the counsel for the petitioner that the Industrial Tribunal should not have decided the reference in the light of the fact that the criteria laid down for declaring an enterprise as an industry as laid down by the Hon'ble Supreme Court in the case of Bangalore Water Supply and Sewerage Board (supra) is pending decision on a reference made to a larger Bench, is unacceptable. Mere pendency of a reference before a larger Bench doubting an earlier decision by the Hon'ble Supreme Court does not in itself mean that the judgment, which has been doubted, is kept under suspension or ceases to be operational or its applicability has been curtailed. This contention, therefore, of the counsel for the petitioner, also cannot be accepted. Now coming to the question with regard to the principle of resjudicata being applicable to the present case, suffice it to say that the claim, which was made by the workmen before the Central Administrative Tribunal, Chandigarh Bench, was with regard to their claim for regularization of their services. The Original Application, which was preferred by the workmen before the Central Administrative Tribunal, was much before the order of termination passed by the petitioner- Management. The validity of the order of termination was not at all under challenge before the Central Administrative Tribunal. Further in the light of CWP No. 5113 of 2010 and other connected cases 5 the fact that their appointment was not through the Employment Exchange, their claim for regularization was not accepted by the Central Administrative Tribunal and it was held that their prayer for such regularization was not maintainable before the Tribunal. As there was no adjudication on the question of the validity of the order of termination which, as a matter of fact, came into existence after the decision of the Original Application preferred by the workmen before the Central Administrative Tribunal, the principle of resjudicata would not apply to the claim of the workmen before the Industrial Tribunal. Thus, this contention of he counsel for the petitioner also does not have any basis. The findings, as recorded by the Labour Court, are fully justified and based on the pleadings and evidence led by the parties, which do not call for any interference by this Court. In any case, the Labour Court, keeping in view the fact that the workmen were not appointed through the Employment Exchange which was the requirement of the service as also keeping in view the fact that the petitioners were mere casual labourers and no work for the casual labourers was left with the petitioner-Management, they were held not entitled to reinstatement in service. Since the termination of the services of the workmen was in violation of the provisions of the Industrial Disputes Act, the Labour Court has rightly proceeded to grant them compensation. The approach of the Labour Court in granting compensation in lieu of reinstatement is in accordance with law and in this regard, reference can be made to 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 a Division Bench judgment of this Court in the case of State of Haryana vs. Ishwar Singh and another, 2008 (3) SCT 788. In view of the above, I do not find any merit in these writ CWP No. 5113 of 2010 and other connected cases 6 petitions preferred by the petitioners challenging the Award dated 21.10.2008 passed by the Central Government, Industrial Tribunal-cum- Labour Court, Chandigarh (Annexure P-13) and accordingly, dismiss the same. ( AUGUSTINE GEORGE MASIH ) JUDGE March 22, 2010 pj CWP No. 5113 of 2010 and other connected cases 7