Case: Anoop Sharma Vs. Executive Engineer Public Health Division No-1 , Panipat

3. The appellant was engaged/employed by the respondent asChowkidar with effect from 11.10.1995. He was paid monthly wages at the rate of Rs.. His service was discontinued with effect from 25.4.1998. The dispute raised by the appellant was referred by the Government of Haryana to the Labour Court under Section 10(1)(c) of the Industrial Disputes Act, 1947 (for short, "the Act"). In the statement of claim filed by him, the appellant pleaded that he had worked for a period of more than two years and six months; that his service was discontinued with effect from 25.4.1998 without giving him notice or pay in lieu thereof or retrenchment compensation and without complying with mandate of SectionN of the Act. Another plea taken by the appellant was that no seniority list of the workers had been prepared and persons junior to him, namely, Ramesh, Amarjit, Jagbir and Rohtash were retained in service. In the written statement filed by the respondent, it was pleaded that the services of the appellant and other similarly situated employees were discontinued because the State Government had issued instructions to that effect in the wake of financial crisis. It was further pleaded that the workman was offered compensation along with the letter of termination, but he refused to accept the same and left the station and, therefore, demand draft bearing No.056997 dated 25.4.1998 for a sum of Rs.5,491/was sent at his residence. For the sake of convenient reference, the relevant portions of the written statement, as contained in the paper book of this appeal, are extracted below:1. xxx xxx xxx2. That as per rules prescribed in section25Fof Industrial Dispute Act, the workman was offered the amount of compensation with termination letter but the claimant refused to take the same and soon after he left the station also. A demand draft bearing No.056997 dated 25.4.98 amounting to Rs.5491/was sent to the 18.8.1998 workman residence but he refused to accept it and registered letter received back undelivered. The said draft/banker cheque was once again sent to the claimant home address. 2nd time the same was received/accepted by the claimant.w the facts stated above the respondent is not at fault in any manner so the present claim statement filed by the claimant is not maintainable in any manner1. That in reply to para no.1 of the claim statement it is stated that the claimant was engaged as casual labour in 12/95 and his services were dispensed with on 25.498 due to financial crunch being experienced by the Govt. of Haryana as already explained in para no.1 of the preliminary objectiona) That para no.1(a) of the claim statement is wrong and denied, the notice dated 25.4.98 along with a demand draft bearing No.056997 dated 25.4.98 amounting to Rs.5491/was offered to the claimant on dated 25.4.98 but the claimant refused to take the same and soon after he left the station also, later on the said draft was sent to the claimant residence which was received by himb) That the para no.1(b) of the claim statement is wrong and denied as already explained above the retrenchment compensation as per Section25Fof the I.D. Act was offered to the claimant on 25.4.98 but he refused to take the same and soon after left the station also. The demand draft was sent to his home address which was received by himc) xxx xxx xxxd) xxx xxx xxx"4. The appellant appeared as1 and reiterated the averments contained in the statement of claim. On behalf of the respondent, Shri Ram Chander was examined as. He stated that the appellant had worked as casual labour from December 1995 to 25.4.1998 with breaks and that he was given retrenchment compensation with letter Ex.1 dated 25.4.1998, which he refused to accept. Shri Ram Chander further stated that the amount of compensation was sent to the appellant at his home address by demand draft Ext.3 dated 25.4.1998. According to Shri Ram Chander, no person junior to the appellant was retained in the department. However, no evidence was produced by the respondent to corroborate the oral assertion of Shri Ram Chander that the appellant had refused to accept the compensation5. After considering the pleadings and evidence of the parties, the Labour Court recorded the following conclusions:(1) That the total number of employees in the department was about 400 and, therefore,compliance of SectionN of the Act was mandatory before terminating the services of the workman(2) From Ext.4 it is clear that the workman received the amount of compensation on 18.8.1998, i.e., after the months and 23 days(3) The plea of the management that compensation was refused by the workman is not supported by any proof or other evidence(4) The workman is entitled to reinstatement with full back wages6. The respondent challenged the award of the Labour Court in Writ Petition No. 6849/2004. By the impugned order, the Division Bench of the High Court allowed the writ petition and set aside the award by observing that there was no reason for the Labour Court to record a finding that the compensation was not offered to the workman at the time of retrenchment. The Division Bench also held that the appellant cannot be reinstated in service because he was not appointed against any sanctioned post and he was initially employed without complying with the statutory provisionsThis is evinced from the following extract of the impugned order:"During the course of arguments, learned counsel appearing for the petitioner argued that in view of the nature of appointment of respondent No.1, he cannot be ordered to be reinstated. The respondent has not shown before the Labour Court or before this Court that he had been appointed on a sanctioned post in consonance with the provisions of Articles 14 and 16 of the Constitution of India. It has further not been shown that the entry in service of the respondent was legal and in accordance with the statutory provisions and rules framed thereunder. A person who has taken entry illegally by the back door cannot be permitted to be reinstated in view of the law laid down by the Honble Supreme Court in recent judgments."For arriving at the aforementioned conclusion, the Division Bench relied upon the judgments of this Court in Himanshu Kumar Vidyarthi v. State of Bihar AIR 1997 SC 3657 , Municipal Council, Samrala v. Raj Kumar (2006) 3 SCC 81 , Reserve Bank of India v. Gopinath Sharma (2006) 6 SCC 221 , Secretary, State of Karnataka v. Uma Devi (2006) 4 SCC 1 , U.P. Power Corporation Ltd. v. Bijli Mazdoor Sangh (2007) 5 SCC 755  and Haryana Urban Development Authority v. Om Pal (2007) 5 SCC

Reasoning:
18. The stage is now set for considering whether the respondent had offered compensation to the appellant before discontinuing his engagement/employment, which amounts to retrenchment within the meaning of Section 2(oo) of the Act. In his statement, the appellant categorically stated that before discontinuing his service, the respondent did not give him notice pay and retrenchment compensation. Shri Ram Chander, who appeared as the sole witness on behalf of the respondent stated that the compensation amounting to Rs.5,491/was offered to the appellant along with letter Ext., but he refused to accept the same. The respondent did not examine any other witness to corroborate the testimony of Ram Chander and no contemporaneous document was produced to prove that the compensation was offered to the appellant on 25.4.1998. Not only this, the respondent did not explain as to why the demand draft was sent to the appellant after more than three months of his alleged refusal to accept the compensation on 25.4.1998. If there was any grain of truth in the respondents assertion that the compensation was offered to the appellant on 25.4.1998 and he refused to accept the same, there could be no justification for not sending the demand draft by post immediately after the appellants refusal to accept the offer of compensation. The minimum which the respondent ought to have done was to produce the letter with which draft was sent at the appellants residence. The contents of that letter would have shown whether the offer of compensation was made to the appellant on 25.4.1998 and he refused to accept the same. However, the fact of the matter is that no such document was produced. Therefore, we are convinced that the finding recorded by the Labour Court on the issue ofe of Section25Fof the Act was based on correct appreciation of the pleadings and evidence of the parties and the High Court committed serious error by setting aside the award of reinstatement19. The judgment of the Constitution Bench in Secretary, State of Karnataka vs. Uma Devi (supra) and other decisions in which this Court considered the right of casual, daily wage, temporary and ad hoc employees to be regularised/continued in service or paid salary in the regular time scale, appears to have unduly influenced the High Courts approach in dealing with the appellants challenge to the award of the Labour Court. In our view, none of those judgments has any bearing on the interpretation of Section25Fof the Act and employers obligation to comply with the conditions enumerated in that section20. At the cost of repetition, we consider it necessary to mention that it was not the pleaded case of the respondent before the Labour Court and even before the High Court that the appellant was engaged/employed without following the statutory rules or Articles 14 and 16 of the Constitution and that was the basis for discontinuing his engagement. Therefore, the High Court was not justified in relying upon the alleged illegality of the engagement/employment of the appellant for upsetting the award of reinstatement.