Punjab-Haryana High Court
The Principal Chief Conservator Of ... vs Ram Karan And Another on 4 September, 2012
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal, Inderjit Singh
LPA No. 1678 of 2011 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
ATCHANDIGARH
LPA No. 1678 of 2011
The Principal Chief Conservator of Forest,
Panchkula and another
...Appellants
Versus
Ram Karan and another
....Respondents
LPA No. 2259 of 2011
The Principal Chief Conservator of Forest,
Panchkula and another
...Appellants
Versus
Kara and another
....Respondents
LPA No. 11 of 2012
The Principal Chief Conservator of Forest,
Panchkula and another
...Appellants
Versus
Bhola Ram and another
....Respondents
Date of Decision: September 04, 2012
CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL
HON'BLE MR.JUSTICE INDERJIT SINGH
Present: Mr. Vinod S. Bhardwaj, Addl.A.G., Haryana,
for the appellants.
Mr. J.S. Bedi, Advocate,
for respondent No.1.
..
SATISH KUMAR MITTAL, J.
LPA No. 1678 of 2011 -2- This order shall dispose of three Letters Patent Appeals bearing Nos.1678 of 2011, 2259 of 2011 and 11 of 2012 filed by the State of Haryana in which common question of facts and law is involved. In these Letters Patent Appeals, the State of Haryana has challenged the judgments dated 7.1.2011 and 2.6.2011 passed by the learned Single Judge, whereby the writ petitions filed by the workmen were allowed, and the awards of the Labour Court were set aside, so far as it declines the plea of reinstatement to the workmen, and ordered their reinstatement in service with 50% back wages.
We have heard the learned counsel for the parties and gone through the impugned orders of the learned Single Judge as well as the awards passed by the Labour Court.
For the sake of convenience, the facts are taken from L.P.A. No.1678 of 2011.
In the present case, the workman was engaged as Mazdoor on daily wages in the year 1993 and his services were terminated by the management on 19.6.2004 after more than 11 years of service without complying with the provisions of Section 25F of the Industrial Disputes Act, 1947 (hereinafter referred to as `the Act'). Before the Labour Court, the workman filed his claim statement. However, the management, in spite of several opportunities, did not file its reply, and ultimately its defence was struck-off.
The Labour Court, on the basis of the evidence led by the workman, recorded a finding of fact that the workman had worked LPA No. 1678 of 2011 -3- continuously for more than 240 days in a calendar year preceding the date of termination of his services . It has also been found as a fact that the management while terminating the services of the workman did not comply with the provisions of Section 25F of the Act. But Labour Court while passing the award declined reinstatement to the workman in view of certain observations made by the Hon'ble Supreme Court in Gangadhar Pillai Versus Siemens Ltd., 2007(1) SCC 533; M.P. Housing Board and Another Versus Manoj Shrivastava, 2006(2) SCC 702 and Indian Drugs and Pharmaceuticals Ltd. Versus Workman Indian Drugs and Pharmaceuticals Ltd., 2007(1) SCC 408 to the effect that the temporary employees, who include casual daily rated ad hoc employees etc., have no legal right to the post and not to be continued in service or absorbed or being regularized and they cannot be directed to be continued till the age of superannuation.
The learned Single Judge has set aside the part of the award of the Labour Court declining reinstatement to the workman after coming to the conclusion that once it has been established before the Labour Court that the workman had worked for 240 days in a calendar year preceding the date of termination of his services and the management had terminated the services of such workman without following the mandatory requirement of Section 25F and 25H, the Labour Court was not justified to decline the reinstatement to the workman only on the ground that he was engaged on daily wages. While allowing the petition of the workman, the learned Single Judge has relied upon the decision of the Hon'ble Supreme Court in LPA No. 1678 of 2011 -4- Ramesh Kumar Versus State of Haryana, 2010(1) SCT 675; Krishan Singh Versus Executive Engineer, Haryana State Agricultural Marketing Board, Rohtak (Haryana), 2010(2) SCT 534 and Divisional Forest Officer (Territorial), Bhiwani Versus The Presiding Officer, Industrial Tribunal-cum-Labour Court, Rohtak and another, 2010(3) SCT 557.
Before us the learned counsel for the appellants argued that in the present case the workman was initially appointed without complying with the equality clause enshrined in Articles 14 and 16 of the Constitution of India and he was also working on daily wages, therefore, the Labour Court was fully justified in declining reinstatement to the workman.
We have heard the counsel for the parties on this issue. Undisputedly, in the present case, no reply was filed by the management to the claim statement filed by the workman before the Labour Court. Therefore, neither there is any plea nor evidence that the entry of the workman in service of the management was a back door entry or in violation of equality clause enshrined in Articles 14 and 16 of the Constitution of India. Thus, before us there is no material on the basis of which it can be assumed that the initial appointment of the workman was a back door entry. In our view, once it has been established that the workman had worked continuously for more than 240 days in a calendar year preceding his termination and his services have been terminated in gross violation of Section 25F of the Act, he cannot be denied reinstatement. In Harjinder Singh Versus Punjab State Warehousing Corporation, JT LPA No. 1678 of 2011 -5- 2010(1) SC 598, it was held by the Supreme Court that the relief of reinstatement cannot be denied to the workman merely on the ground that his initial appointment was contrary to the rules, and the denial of such benefit to the workman will amount to frustrate the object of social welfare legislation which protects the rights of the weaker sections of the society. The stock plea raised by the public employer in such cases that the initial employment/engagement of the workman/employee was contrary to the rules or that reinstatement of the workman will put unbearable burden on the financial health of the establishment, is not acceptable. But some times, the Courts have readily accepted such plea unmindful of the accountability of the wrong doer and indirectly punished the tiny beneficiary of the wrong ignoring the fact that he may have continued in the employment for years together and that micro wages earned by him may be the only source of his livelihood. In Ramesh Kumar's case (supra), the Hon'ble Supreme Court again considered the issue and held as under:-
"13. We are conscious of the fact that an appointment on public post cannot be made in contravention of recruitment rules and constitutional scheme of employment. However, in view of the materials placed before the Labour Court and in this Court, we are satisfied that the said principle would not apply in the case on hand. As rightly pointed out, the appellant has not prayed for regularization but only for reinstatement with continuity of service for which he is legally entitled to. It is to be noted in the case of termination of casual employee what is required to be seen is whether a workman has completed 240 days in the preceding 12 months or not. If sufficient materials are shown that workman has completed 240 days then his service cannot LPA No. 1678 of 2011 -6- be terminated without giving notice or compensation in lieu of it in terms of Section 25F. The High Court failed to appreciate that in the present case appellant has completed 240 days in the preceding 12 months and no notice or compensation in lieu of it was given to him, in such circumstances his termination was illegal. All the decisions relied on by the High Court are not applicable to the case on hand more particularly in view of the specific factual finding by the Labour Court."
The issue whether the workman can be denied reinstatement because he was working on daily wages again came up for consideration before the Supreme Court in Anoop Sharma Vs. Executive Engineer, Public Health Division No.1, Panipat (Haryana), 2010(3) SLR 663, wherein it has been held that the termination of the service of an employee by way of retrenchment without complying with the requirement of giving one month's notice or pay in lieu thereof and compensation in terms of Section 25F(a) and (b) has the effect of rendering the action of the employer as nullity, and the employee is entitled to continue in employment as if his service was not terminated.
Again the same question came up for consideration before the Supreme Court in Devinder Singh Vs. Municipal Council, Sanaur, (2011) 6 SCC 584, wherein the Hon'ble Supreme Court has held as under:-
"19. Section 25-F couched in negative form. It imposes a restriction on the employer's right to retrench a workman and lays down that no workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched until he has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has LPA No. 1678 of 2011 -7- expired or he has been paid wages for the period of notice and he has also been paid, at the time of retrenchment, compensation equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months and notice in the prescribed manner has been served upon the appropriate Government or the authority as may be specified by the appropriate Government by notification in the Official Gazette.
20. This Court has repeatedly held that the provisions contained in Section 25-F (a) and (b) are mandatory and termination of the service of a workman, which amounts to retrenchment within the meaning of Section 2(oo) without giving one month's notice or pay in lieu thereof and retrenchment compensation is null and void/illegal/inoperative --- State of Bombay v. Hospital Mazdoor Sabha, AIR 1960 SC 610; Bombay Union of Journalists v. State of Bombay, AIR 1964 SC 1617; State Bank of India v. N. Sundara Money (AIR 1976 SC 1111) (Supra); Santosh Gupta v. State Bank of Patiala (1980) 3 SCC 340: (AIR 1980 SC 1219); Mohan Lal v. Bharat Electronics Ltd., (1981) 3 SCC 225 : (AIR 1981 SC 1253); L. Robert D'Souza v. Southern Railway, (AIR 1982 SC 854) (Supra); Surendra Kumar Verma v. Central Government Industrial Tribunal-cum-Labour Court (1980) 4 SCC 443 : (AIR 1981 SC 422); Gammon India Ltd. v. Niranjan Dass (1984) 1 SCC 509 : (AIR 1984 SC 500); Gurmail Singh v. State of Punjab (1991) 1 SCC 189 : (AIR 1993 SC 1388) and Pramod Jha v. State of Bihar (2003) 4 SCC 619 : (AIR 2003 SC 1872 : 2003 AIR SCW 1340).
21 In Anoop Sharma v. Executive Engineer, Public Health Division, Haryana (Supra), the Court considered the effect of violation of Section 25-F, referred to various LPA No. 1678 of 2011 -8- precedents on the subject and held the termination of service of a workman without complying with the mandatory provisions contained in Section 25-F (a) and (b) should ordinarily result in his reinstatement.
22. We may now advert to the impugned order. A careful analysis thereof reveals that the High Court neither found any jurisdictional infirmity in the award of the Labour Court nor it came to the conclusion that the same was vitiated by an error of law apparent on the face of the record. Notwithstanding this, the High Court set aside the direction given by the Labour Court for reinstatement of the appellant by assuming that his initial appointment/engagement was contrary to law and that it would not be in public interest to approve the award of reinstatement after long lapse of time.
In our view, the approach adopted by the High Court in dealing with the award of the Labour Court was ex facie erroneous and contrary to the law laid down in Syed Yakoob v. K.S. Radhakrishnan, AIR 1964 SC 477; Swaran Singh v. State of Punjab (1976) 2 SCC 868 : (AIR 1976 SC 232); P.G.I. of Medical Education & Research, Chandigarh v. Raj Kumar (2001) 2 SCC 54: (AIR 2001 SC 479 : 2001 AIR SCW
77); Surya Dev Rai v. Ram Chander Rai (2003) 6 SCC 675 :
(AIR 2003 SC 3044 : 2003 AIR SCW 3872) and Shalini Shyam v. Rajendra Shankar Path (2010) 8 SCC 329 :
(2010 AIR SCW 6387)."
In a similar case titled as Principal Chief Conservator of Forests and another Versus Nasib Singh and another, (L.P.A. No.436 of 2012 decided on March 23, 2012), this Court dismissed the L.P.A. filed by the management against the order of the learned Single Judge, whereby the writ petition filed by the workman against the award of the Labour Court LPA No. 1678 of 2011 -9- was allowed and he was ordered to be reinstated in service with 40% back wages.
In view of the above, we do not find any ground to interfere in the impugned order passed by the learned Single Judge. Hence, the appeals being devoid of merit are dismissed.
(SATISH KUMAR MITTAL)
JUDGE
September 04, 2012 ( INDERJIT SINGH )
vkg JUDGE