Punjab-Haryana High Court
Rampal @ Ramphal (Now Deceased) Through ... vs Presiding Officer on 20 May, 2013
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CWP No.3409 of 2011
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CWP No.3409 of 2011
DATE OF DECISION : 20.05.2013
Rampal @ Ramphal (now deceased) through his L.Rs.
..... Petitioner
Versus
Presiding Officer, Labour Court, Ambala and others
..... Respondents
CORAM:- HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr. Vinod Bhardwaj, Advocate,
for the petitioner.
Ms. Tanisha Peshawaria, DAG Haryana for respondent.
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
RAJIV NARAIN RAINA, J.
The workman is before this Court praying for quashing of the Labour Court award dated 12.10.2010 (P-1). Briefly stated, the petitioner was appointed as a Chowkidar on 19.07.1994 on daily wages fixed by the Deputy Commissioner for 89 days and thereafter he was granted 23 extensions of 89 days each. His services were terminated on 26.04.2005 after he had put in more than 11 years of service and had completed 240 days within the meaning of Section 25-B of the Industrial Disputes Act, 1947 (for short "the Act"). The petitioner raised an industrial dispute by serving a demand notice. Industrial reference was made on 08.01.2008. CWP No.3409 of 2011 -2- Admittedly, it is established through evidence on record that the total length of service spent before termination was more than 11 years, that is, from 19.07.1994 to 26.04.2005 albeit on daily wage/ad hoc basis. In the appointment letter, it was mentioned that the appointment was for 89 days only and that the services could be terminated without any prior notice or emoluments in lieu thereof. The workman had joined the department on the basis of an appointment letter and continued to work till 26.04.2005 because the workman was granted extensions on the expiry of stipulated period of 89 days. Therefore, it is proved on record that the workman had completed more than 240 days of service in the last preceding year immediately before the date of his termination. Petitioner's services were dispensed with on 26.04.2005.
Learned counsel for the petitioner submits that neither any notice was served on the workman nor was retrenchment compensation paid to him before dispensing with his services.
On the other hand, Ms. Tanisha Peshawaria, learned Deputy Advocate General, Haryana argues that the period of last contract of the workman expired on 26.04.2005 and the same was not renewed thereafter. Since the termination of services was due to non-renewal of contract it does not constitute retrenchment as defined under Section 2(oo) (bb) of the Industrial Disputes Act, 1947 (for brevity 'the Act') and, therefore, the workman is not entitled to any relief.
Learned counsel for the petitioner has relied upon judgments of this Court and the Supreme Court to submit that, where the workman had been continued in service with notional breaks, the management cannot take CWP No.3409 of 2011 -3- shelter of Section 2(oo) (bb) of the Act, and once it is shown that the workman had completed 240 days in the 12 Calendar months preceding the date of his removal, he is entitled to benefit of Section 25F of the Act and, on non-compliance thereof he would be entitled to reinstatement and continuity of service with full back wages. Towards this, he has placed reliance on Devinder Singh Vs. Municipal Council, Sanaur, 2011 (3) SCT- 139, decided by the Supreme Court, as also on two Division Bench judgments of this Court in Chairman, The Mewat Development Agency, Nuh Vs. Ravinder Balwan and another, 2012 (3) SCT 154, and Director, Health & Family Welfare, Punjab, Chandigarh and others Vs. Baljinder Singh and another, 2006 (2) SCT 105. In the last case cited, it was held as under:
"...From a perusal of the facts narrated hereinabove, it is apparent that the respondent-workman was repeatedly appointed on 89 days basis. Such an act of repeated appointments with notional breaks amounts to an unfair labour practice. The Labour Court was fully justified in recording such a conclusion on the basis of the facts and circumstances of the present case."
By the impugned award dated 12.10.2010 relief of reinstatement with full back wages has been declined and the reference has been dismissed with costs. The Labour Court has found that the petitioner was not a regular employee and his appointment was not consistent with the constitutional scheme of public employment and had no right to the post. Following the law laid down by the Supreme Court in 'Secretary, State of Karnataka and others Vs. Umadevi and others', (2006) 4 SCC, 1, the Labour Court denied the relief of reinstatement. Umadevi (3) has been explained and distinguished by the Supreme Court in 'Maharashtra State CWP No.3409 of 2011 -4- Road Transport Corporation Ltd v. Casteribe Rajya Parivahan Karamchari Sanghatana, (2009) 8 SCC 556 which is an authoritative pronouncement for the proposition that the Supreme Court under Article 32 and the High Court under Article 226 should not issue directions of absorption, regularization, or permanent continuance of temporary, contractual, casual, daily wage or ad hoc employees unless the recruitment was made regularly in terms of the constitutional scheme but Umadevi (3) cannot be said to have overridden the powers of the Industrial Tribunals and Labour Courts in passing appropriate orders under industrial law once unfair labour practice on the part of the employer under item 6 of Schedule IV of the MRTU Act and PULP Act (which is in pari materia to item 10 of Schedule V of the Industrial Disputes Act, 1947) is established.
Heard learned counsel for the parties.
On due consideration of the matter, I am not inclined to accept the arguments raised by the learned State counsel. The petitioner was appointed as Chowkidar on 19.07.1994 by the respondents. He worked continuously from 19.07.1994 to 26.04.2005 with notional breaks. After he had put in more than 11 years of service, his services were terminated in violation of Section 25-F of the Act. No retrenchment compensation was paid to him. Aggrieved by his termination order, he raised industrial dispute. The matter was referred to the Labour Court for adjudication, which unfortunately has been answered against the workman and the reference stands rejected.
An employer cannot be permitted to exploit a human being for a number of years, violate the law and show the workman the exit door CWP No.3409 of 2011 -5- without just cause or legal justification. Such workman must have the protection of his life, liberty and right to exist in some comfort by securing adequate means of livelihood protected under Article 21 of the Constitution of India.
There is no doubt that the labour Court has erred in not treating the case as one of retrenchment. A part time worker is also entitled to the protection of Section 25-F of the Act etc. and such an industrial right was available to him and a duty was cast on the employer to have complied with the provisions of the aforesaid section of the Act. The labour Court has denied relief altogether which is erroneous exercise of jurisdiction by failure to exercise jurisdiction vested in it and to do so judiciously. The reference was made in 2008. The length of service on part time basis is for more than 11 years. The employment was in a Government Department. The workman was not appointed to a cadre post of Chowkidar and the arrangement was casual in nature.
Unfortunately, the workman died on 24.10.2011 during the pendency of this writ petition. His legal heirs have been substituted in place of him. In the circumstances, I am left with no option but to award full back wages only as the prayer for reinstatement has abated.
Consequently, the writ petition is partly allowed and the impugned award dated 12.10.2010 is set aside and full back wages from the date of demand notice till 24.10.2011, the date of death of the workman, are awarded to the legal heirs of the workman. Let the amount of back wages be now paid to the legal heirs of the workmen within 60 days from the date of receipt of certified copy of this order, failing which interest at the rate of CWP No.3409 of 2011 -6- 12% would run till realization.
Ordered accordingly.
(RAJIV NARAIN RAINA) JUDGE 20.05.2013 manju