Punjab-Haryana High Court
Dulari vs State Of Haryana And Anr on 22 February, 2023
Author: G.S. Sandhawalia
Bench: G.S. Sandhawalia
Neutral Citation No:=2023:PHHC:045423-DB
CM-1423-LPA-2019 in/and -1-
LPA-622-2016 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CM-1423-LPA-2019 in/and
LPA-622-2016 (O&M)
Date of Decision: 22.02.2023
Dulari
......Appellant
Vs.
State of Haryana and another .........Respondents
CORAM: HON'BLE MR. JUSTICE G.S. SANDHAWALIA
HON'BLE MS. JUSTICE HARPREET KAUR JEEWAN
Present: Ms. Abha Rathore, Advocate,
for the applicant-appellant.
Mr. Ankur Mittal, Addl, A.G., Haryana, with
Mr. Saurabh Mago, A.A.G., Haryana and
Mr. Karan Jindal, A.A.G, Haryana.
*****
HARPREET KAUR JEEWAN, J.
1. Application has been filed to take the appellant in service during pendency of the main appeal.
With the consent of parties, the main case is taken up on Board for hearing today itself.
2. Consideration in the present Letters Patent Appeal filed by the appellant (hereinafter referred to as 'the workman') is to the order of the learned Single Judge in CWP-8040-2012, titled State of Haryana vs. Smt. Dulari and another, whereby the writ petition filed by respondent No. 1 (hereinafter referred to as 'the management') was allowed, whereby the Award, dated 13.12.2011 (Annexure P-3), passed by the Industrial Tribunal-cum Labour Court, Panipat (hereinafter referred to as 'the Tribunal'), was set aside.
3. As per the version of the workman, she was appointed by the 1 of 19 ::: Downloaded on - 02-06-2023 07:34:14 ::: Neutral Citation No:=2023:PHHC:045423-DB CM-1423-LPA-2019 in/and -2- LPA-622-2016 (O&M) management though the Employment Exchange as a Sweeper on 19.01.1998 and she continuously worked till 30.06.2003 and thereafter, she was not allowed to continue her services. As such, the worklady issued a demand notice under the provisions of Section 2-F of the Industrial Disputes Act, 1947 (hereinafter referred to as the 'Act of 1947') and the dispute was referred to the Tribunal.
4. Respondent No. 1 took a plea before the Tribunal that the appellant was only engaged as a Sweeper through the Employment Exchange to work in the office of the CDPO only for two hours daily, as per DC rates. However, no regular post has been sanctioned by the State Government for the said office and the Integrated Child Development Scheme is being run with the financial assistance of the Government of India. She was only engaged for two months w.e.f. 19.01.1998 to 28.02.1998 and as such she does not fall within the definition of "workman".
5. The Tribunal passed the Award dated 13.12.2011 (Annexure P-3), whereby the workman was ordered to be reinstated with continuity of service with 50% back-wages from the date of issuance of the demand notice by the workman, i.e. 21.07.2003.
6. The learned Single Judge allowed the Civil Writ Petition filed by the management, whereby a challenge was made to the Award passed by the Tribunal by the State. The learned Single Judge observed that the relationship of the employer and employee is not in dispute. The appellant- workman was held to be covered within the definition of "workman" but for a limited purpose of having a relationship of employer and employee.
2 of 19 ::: Downloaded on - 02-06-2023 07:34:14 ::: Neutral Citation No:=2023:PHHC:045423-DB CM-1423-LPA-2019 in/and -3- LPA-622-2016 (O&M) However, it was further held that the appellant would not be entitled to any benefit under Chapter V-A & V-B of the Act. As such, the termination of service will not amount to retrenchment. The learned Single Judge also placed reliance upon the judgment of the Hon'ble Supreme Court in Uttranchal Forest Hospital Trust vs. Dinesh Kumar 2008 (1) SLR 722, a Full Bench judgment of this Court in Gobind vs. The Presiding Officer, Labour Court, Jalandhar and another (2012) ILR 2 637 and another judgment of a co-ordinate Bench of this Court in Indian Bank through its Deputy General Manager vs. Smt. Maya Devi and another (CWP- 11368-2007), decided on 27.08.2008.
6.1 Considering the aforesaid judgments, the learned Single Judge observed that the Award passed by the Tribunal is not sustainable. It was observed that The Tribunal was misguided while not appreciating the true factual position and the decision is contrary to the law laid down by the Hon'ble Supreme Court in Dinesh Kumar's (supra) and Hon'ble Full Bench in Gobind's case (supra). Accordingly, the writ petition was allowed.
7. The decision by the learned Single Judge has been challenged by way of filing the present Letters Patent Appeal. Learned counsel for the appellant submitted that the learned Single Judge missed the consideration of the judgment passed by the Hon'ble Apex Court in Divisional Manager New India Assurance Co. Ltd. vs. A. Sankaralingam (2008) 10 SCC 698, which is directly on the issue of part-time workers and it has been held by the Hon'ble Apex Court that a part-time worker would be entitled to the protection of Section 25-F of the Act of 1947. The said judgment was 3 of 19 ::: Downloaded on - 02-06-2023 07:34:14 ::: Neutral Citation No:=2023:PHHC:045423-DB CM-1423-LPA-2019 in/and -4- LPA-622-2016 (O&M) passed subsequent to the decision relied upon by the learned Single Judge in Dinesh Kumar's (supra) and Gobind's cases (supra), as well as the Division Bench judgment of this Court in Indian Bank's case (supra). The said judgment was not brought to the notice of the Hon'ble Single Judge. 7.1 The learned counsel for the appellant further submitted that the workman has completed more than 240 days in the preceding 12 months before her termination on 30.06.2003. As such, the termination is illegal since the compliance of the statutory provisions of the Act was not made before termination. Hence, the relief granted by the Tribunal was rightly granted.
7.2 The learned counsel for the appellant has also brought to our notice that the appellant has been made to join thereafter as a part-time Sweeper on 15.01.2019 and copy of the letter issued by the Ministry of Women and Child Development, dated, 16.01.2019, has also been placed on record.
8. On the other hand, the learned State counsel submitted that there was no regular post available in the department. As such, the services of the appellant were taken only as part-time worker, therefore, the learned Single Judge has rightly dismissed the claim of the appellant by allowing the writ petition against the order passed by the Tribunal. Since there was no sanctioned post available in the department as such, ordering reinstatement to the appellant was not justified by the Tribunal.
12. We have considered the aforesaid submissions and perused the record.
13. As per the version of the workman, she has worked from 4 of 19 ::: Downloaded on - 02-06-2023 07:34:14 ::: Neutral Citation No:=2023:PHHC:045423-DB CM-1423-LPA-2019 in/and -5- LPA-622-2016 (O&M) 19.01.1998 to 30.06.2003, i.e. for a period of 05 years and 05 months. The said contentions were disputed by the management and it was alleged that she has only worked for a period of 2 months from 19.01.1998 to 20.02.1998. The Tribunal has referred to the testimony of Nirmal Kanta (MW-1), who was a witness examined by the management. She had proved that the sanction was received to employee the workman from time to time and copies of the said sanctions were proved by her as Exs. MW-2 to MW-
5. The said witness has further stated that the work and conduct of the workman was not satisfactory, therefore, several notices were issued to her which are Ex. MW-6 to MW-8. The termination of the worklady was proved as Ex. MW-9. The Tribunal has however, referred to the cross- examination of the said witness where she has admitted that the worklady has continuously worked during the period from 19.01.1998 to 30.06.2003. She has also admitted that no notice or pay in lieu of notice and retrenchment compensation was given to her at the time of termination of her services. The Tribunal has also observed that the respondent has not conducted any enquiry before terminating of her services with regard to the alleged notices issued to her.
14. In view of the admission made by the witness of the management, the workman has successfully proved that she has continuously worked w.e.f. 19.01.1998 to 30.06.2003, i.e. for a period of more than 05 years.
15. In these circumstances, it has been established that the workman has completed continuous service of 240 days with the management during the last preceding 12 calendar months from the date of 5 of 19 ::: Downloaded on - 02-06-2023 07:34:14 ::: Neutral Citation No:=2023:PHHC:045423-DB CM-1423-LPA-2019 in/and -6- LPA-622-2016 (O&M) termination of her services. As such, the termination of the services of the workman when she has already completed 240 days of service in the last preceding 12 months, amounts to retrenchment as defined under Section 2 (oo) of the Act of 1947 which reads as under:-
"2. Definitions.- In this Act, unless there is anything repugnant in the subject or context,--
xxxx xxxx xxxx xxxx [(oo) "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include--
(a) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (bb) termination of the service of the workman as a result of the non- renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or]
16. The learned Single Judge has also observed that since the workman was a part-time worker, she is therefore, not entitled to any statutory benefits under the Act.
17. In order to arrive to a conclusion as to whether a workman who has been employed only as a part-time worker would be treated as a workman under the Act, the definition of the workman is very material for consideration. The definition of the workman has been defined under Section 2 (s) of the Act, which reads as under"-
"2. Definitions.- In this Act, unless there is
6 of 19 ::: Downloaded on - 02-06-2023 07:34:14 ::: Neutral Citation No:=2023:PHHC:045423-DB CM-1423-LPA-2019 in/and -7- LPA-622-2016 (O&M) anything repugnant in the subject or context,--
xxx xxxx xxxx xxxx
(s) workman" means any person (including an
apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, dischasrge or retrenchment has led to that dispute, but does not include any such person--
(i) who is subject to the Air Force Act, 1950 (45 of 1950 ), or the Army Act, 1950 (46 of 1950 ), or the Navy Act, 1957 (62 of 1957 ); or
(ii) who is employed in the police service or as an officer or other employee of a prison; or
(iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature."
18. The said definition does not create any distinction for an employee who has been engaged full time and an employee who has been engaged part-time. The said definition refers to any person who has been employed to do any manual and unskilled work. The nature of the work of 7 of 19 ::: Downloaded on - 02-06-2023 07:34:14 ::: Neutral Citation No:=2023:PHHC:045423-DB CM-1423-LPA-2019 in/and -8- LPA-622-2016 (O&M) a person who has been engaged as a Sweeper comes within the said definition as he is employed for the same purpose of doing manual and unskilled work. The Hon'ble Supreme Court of India in A.Sankaralingam's case (supra), while dealing with the case of a Sweeper-cum-water carrier in the office of Divisional Manager New India Assurance Company, considered the question as to whether a part-time employee falls within the definition of workman under Section 2 (s) of the Act and whether he would be entitled to the benefit of continuous service under Section 25-B as well as the benefit of Section 25-F of the Act of 1947. The said question was answered in favour of the workman. The decision of the Hon'ble Supreme Court in Dinesh Kumar's and Gobind's cases (supra), were also considered by the learned Single Judge while deciding the said issue. But the said judgment of 'A.Sankaralingam' was not placed before the learned Single Judge, as such, missed his consideration. The relevant part of the said decision is reproduced hereinbelow:-
"7. In the light of the above decisions, the question for consideration, which has been hotly debated, is the status of a part time employee and as to whether such an employee falls within the definition of "workman". Section 2 (s) of the Act deals with the definition of "workman" whereas section 25B talks about "continuous service". Both these provisions are reproduced below:
"Sec.2(s) "workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be expressed or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, 8 of 19 ::: Downloaded on - 02-06-2023 07:34:14 ::: Neutral Citation No:=2023:PHHC:045423-DB CM-1423-LPA-2019 in/and -9- LPA-622-2016 (O&M) discharged, or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person -
(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or
(ii) who is employed in the police service or as an officer or other employee of a prison;
or
(iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature."
Sec.25-B. Definition of continuous service.- For the purposes of this Chapter, (1) a workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service, including service which may be interrupted on account of sickness or authorized leave or an accident or a strike which is not illegal, or a lock-out or a cessation of work which is not due to any fault on the part of the workman;
(2) where a workman is not in continuous service within the meaning of clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer -
(a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, 9 of 19 ::: Downloaded on - 02-06-2023 07:34:14 ::: Neutral Citation No:=2023:PHHC:045423-DB CM-1423-LPA-2019 in/and -10- LPA-622-2016 (O&M) has actually worked under the employer for not less than -
(i) one hundred and ninety days in the case of a workman employed below ground in a mine; and
(ii) two hundred and forty days, in any other case;
(b) for a period of six months, if the workman, during a period of six calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than -
(i) ninety-five days, in the case of a workman employed below ground in a mine; and
(ii) one hundred and twenty days, in any other case."
8. A bare perusal of the two definitions would reveal that their applicability is not limited to only full time employees but all that is required is that the workman claiming continuous service must fulfill the specific conditions amongst others laid down in the two provisions so as to seek the shelter of Section 25F. Mr. Nanda's reliance on Uttaranchal Forest Hospital's case (supra) and Ram Lakhan's case (supra) is misplaced. In Uttaranchal Forest's case (supra) this Court made a passing reference to the status of a part time employee, but the main issue before the Court was as to whether the workman had, in fact, put in 240 days of service which would entitle him to the benefit of Section 25F of the Act. This is what the Court had to say:
"It is undisputed that the work of cleaning the hospital has been given to a contractor w.e.f. 17.8.1996. Materials were placed before the Labour Court to show that the workman was engaged for doing a part-time job and that he had worked for a few days in several months. The Labour Court itself 10 of 19 ::: Downloaded on - 02-06-2023 07:34:14 ::: Neutral Citation No:=2023:PHHC:045423-DB CM-1423-LPA-2019 in/and -11- LPA-622-2016 (O&M) on consideration of the documents and records produced noted as follows:-
"It is evident that the workman had worked in August 1996-16 days, July, 1996 - 30 days, May, 1996 - 30 days, April, 1996 - 30 days, March, 1996 - 29 days, February, 1996 - 29 days, January, 1996 31 days, December, 1995 -31 days, November, 1995-20 days (full), October, 1995 - 19 days (full) September, 1995 - 25 days (full) @ Rs.35/- per day. In addition to this, in November, 1995 - 3 days, October, 1995 - 9 days @ Rs.20/- per day towards part time work and in September, 1995 - days part time @ Rs.5/- per day, had worked."
The basic difference between a person who is engaged on a part-time basis for one hour or few hours and one who is engaged as a daily wager on regular basis has not been kept in view either by the Labour Court or by the High Court. The documents filed clearly establish that the claim of having worked more than 240 days is clearly belied.
The stand of the appellant that the respondent was called for work whenever work was available, and as and when required and that he was not called for doing any work when the same was not available has been established. The Labour Court itself noted that the workman was engaged in work by others as he was working in the appellants' establishment for one hour or little more on some days. It is also seen from the documents produced before the Labour Court that whenever respondent was working for full period of work he was being paid Rs.35/- per day and on other days when he worked for one hour he was getting Rs.5/-."
11 of 19 ::: Downloaded on - 02-06-2023 07:34:14 ::: Neutral Citation No:=2023:PHHC:045423-DB CM-1423-LPA-2019 in/and -12- LPA-622-2016 (O&M)
9. In Ram Lakhan's case (supra), the issue did come up before this Court and while construing the scope of Section 2 (s) and Section 25B of the Act, this Court observed that a person working on a part time basis could not strictu sensu claim to be in continuous employment of the employer but the larger question as to whether such an employee could be a workman under Section 2(s) of the Act so as to claim benefit of Section 25F thereof was being left open for future discussion. As already held above on facts, we have endorsed the view of the High Court that the workman had, in fact, been working virtually on a full time basis till 5 p.m. and had worked continuously for more than 3 years from 2nd January 1986 to 15th March 1989.
10. On the contrary, the preponderance of judicial opinion that a workman working even on a part time basis would be entitled to benefit of Section 25F of the Act is clear from the various judgments which we have referred to above. In Silver Jubilee Tailoring House case (supra) which is a judgment rendered by a 3-Judge Bench of this Court, the question was as to whether the workers who were paid on piece-rate basis though working in the shop, were workmen in terms of Section 2(s) of the Act. That is what the Court had to say:
"11. The question for decision was whether the agrarians were workmen as defined by Section 2(s) of the Industrial Disputes Act of 1947 or whether they were independent contractors. The Court said that the prima facie test to determine whether there was relationship between employer and employee is the existence of the right in the master to supervise and control the work done by the servant not only in matter of directing what work the employee is to do but also the manner in which he has to do the work. In other words, the proper test according to this Court is, whether or not the master 12 of 19 ::: Downloaded on - 02-06-2023 07:34:14 ::: Neutral Citation No:=2023:PHHC:045423-DB CM-1423-LPA-2019 in/and -13- LPA-622-2016 (O&M) has the right to control the manner of execution of the work. The Court further said that the nature of (sic) extent of the control might vary from business to business and is by its nature incapable of precise definition, that it is not necessary for holding that a person is an employee, that the employer should be proved to have exercised control over his work, that even the test of control over the manner of work is not one of universal application and that there are many contracts in which the master could not control the manner in which the work was done."
11. For arriving at this conclusion, the Supreme Court referred to various judgments of this Court including Birdichand Sharma's case (supra) but distinguished the judgment in Shankar Balaji Waje's case (supra) (rendered by two Hon'ble Judges) by observing that the workman who was claiming that status was not called upon to attend duties in the factory itself as he was permitted to take the tobacco from the factory owner and role the bidis at his residence at any time without any fixed hour of work and that there was absolutely no supervision of the so called employer over his work. In conclusion, the Bench observed in (paragraph
37):
"That the workers are not obliged to work for the whole day in the shop is not very material. There is of course no reason why a person who is only employed part time, should not be a servant and it is doubtful whether regular part time service can be considered even prima facie to suggest anything other than a contract of service. According to the definition in Section 2(14) of the Act, even if a person is not wholly employed, if he is principally employed in connection with the business of the shop, he will be a `person employed' within the meaning of the sub-section. Therefore, even if he accepts some work from other tailoring establishments or does not 13 of 19 ::: Downloaded on - 02-06-2023 07:34:14 ::: Neutral Citation No:=2023:PHHC:045423-DB CM-1423-LPA-2019 in/and -14- LPA-622-2016 (O&M) work whole time in a particular establishment, that would not in any way derogate from his being employed in the shop where he is principally employed."
12. It will be seen from a perusal of the aforequoted passages that the observations made therein clearly suggest that a workman employed on a part time basis but under the control and supervision of an employer is a workman in term of Section 2(s) of the Act, and is entitled to claim the protection of Section 25F thereof, should the need so arise. The fact that the workman was working under the control and supervision of the appellant employer is admitted on all sides.
13. We also find that the preponderance of judicial opinion in the High Courts is also to this effect. As a sample we reproduce passages from two such judgments. A Division Bench of the Punjab and Haryana High Court in Simla Devi's case (supra), has observed as under:
"A plain reading of the definition of "workman" does not exclude the part- time workmen from the definition of "workman". Such exclusion cannot be read into it ipso-facto, except if it is expressly provided or implied that no other interpretation is possible, which is not the case in the case in hand. We find support for our view from the observations made by the Supreme Court in Birdhichand Sharma v. First Civil Judge, (1961-II- LLJ-86), wherein the Supreme Court in facts and circumstances of the case, found that the workers even doing the job at their home are still workmen. Thus we are of the considered view that a part-time workman shall fall within the definition of "workman" and the finding returned by the Labour Court that a part-time worker is not a workman, cannot be sustained. We may hasten to add that
14 of 19 ::: Downloaded on - 02-06-2023 07:34:14 ::: Neutral Citation No:=2023:PHHC:045423-DB CM-1423-LPA-2019 in/and -15- LPA-622-2016 (O&M) nothing has been pointed out that on any principle of equity, justice, good conscience or the technical interpretation of the definition of workman that a part-time workman cannot be termed as a workman is unknown to the industrial world."
14. Likewise in G.M. Telecom, Nagpur's case (supra), it has been observed thus:
"The definition of `workman' as given in the Act does not make any distinction between full time employee and part time employee. It does not lay down that only a person employed for full time will be said to be a workman and that the one who is employed for part time should not be taken as a workman. What is required is that the person should be employed for hire to discharge the work manual, skilled or unskilled etc. in any industry. If this test is fulfilled, a part time employee can also be said to be a `workman'. Now, if this test is applied to the present case, it can very well be said that respondent No.1, who was appointed as a part-time sweeper and was required to do manual and unskilled work is a `workman' within the meaning assigned to the said terms in the Act and as he worked for more than 240 days in a year, the provisions of Section 25F of the Act are applicable to the case in hand and as neither any notice, as contemplated under Section 25F of the Act, was served upon the respondent No.1 nor he was paid compensation in lieu of the said notice, nor was paid retrenchment compensation, it cannot be said that the provisions of Section 25F of the Act were duly complied with. It has been time and again held by this Court as well as by the Apex Court that the non-compliance of the mandatory provisions of Section 25F of the Act would render the termination of service void ab initio. I am fortified in
15 of 19 ::: Downloaded on - 02-06-2023 07:34:14 ::: Neutral Citation No:=2023:PHHC:045423-DB CM-1423-LPA-2019 in/and -16- LPA-622-2016 (O&M) this view by a decision of the Apex Court in the case in Mohanlal vs. Management of M/s. Bharat Electronis Ltd., (1981) 3 SCC 225."
15. Similar views have been expressed in two Single Bench decisions of the Delhi High Court Coal India Ltd. and Kailash Chand Saigal (supra), by a Single Judge of the Gujarat High Court in Govind Bhai's case (supra) and a Division Bench of the Rajasthan High Court in Yashwant Sinha Yadav's case (supra). We are in respectful agreement with these opinions as well.
16. The question as to whether a part-time workman would be covered within the definition in Section 2(s) of the Act and whether he would be entitled to the benefit of continuous service under section 25B and the benefit of Section 25F, is answered in favour of the workman- respondent. The appeal is accordingly dismissed."
19. It is therefore not disputed that the compliance of the provisions of Section 25-F of the Act were not made before terminating the services of the workman. Hence, the termination is illegal in the eyes of law and in terms of the provisions of Section 25-F of the Act.
20. As per the facts of the present case, the workman was working as a part-time worker on daily wage basis. It is also not proved on record that the workman was working on a sanctioned post. So in such circumstances, it would be a question of determination as to whether granting of reinstatement to the workman or awarding her compensation for his wrongful termination would be justified?
21. The principles have been laid down by a Full Bench of this Hon'ble Court in Municipal Council, Dina Nagar, Tehsil & District Gurdaspur vs. Presiding Officer, Labour Court, Gurdaspur and 16 of 19 ::: Downloaded on - 02-06-2023 07:34:14 ::: Neutral Citation No:=2023:PHHC:045423-DB CM-1423-LPA-2019 in/and -17- LPA-622-2016 (O&M) another 2014 (4) SCT 514, in which one of us (G.S. Sandhawalia, J), was the author for guiding as to whether reinstatement or compensation is a suitable relief in cases of a workman. The Labour Court was to take into consideration the various aspects as to the nature of appointment, availability of the post, the availability of work etc. The said principles are reproduced as under:-
"Thus the following principles are laid down:-
(i) Keeping in view the recognised power of the Industrial Tribunal to direct reinstatement on account of the violation of Section 25-F of the Act the same cannot be denied solely on the ground that appointments were made by public bodies against public posts and were not in accordance with the relevant statutory recruitment rules.
(ii) The settled position of law as has been sought to be addressed by this Court is that the provisions of Section 25-F being mandatory and on account of violation of the same, the retrenchment would be void ab initio as if it was never in operation and, therefore, the employee would be deemed to be continuing in service.
(iii) The right of reinstatement, however, is not an automatic right as such and while directing reinstatement, the Labour Court will have to take into consideration various aspects as to the nature of appointment, the availability of a post, the availability of work, whether the appointment was per se rules and the statutory provisions and the length of service and the delay in raising the industrial dispute before any award of reinstatement could follow in cases of persons appointed on a short term basis and as daily wagers and who had not worked for long period but solely on the strength of having completed 240 days, would not per se be entitled for reinstatement as such, even though the retrenchment was void.
(iv) The said retrenchment being void would,
17 of 19 ::: Downloaded on - 02-06-2023 07:34:14 ::: Neutral Citation No:=2023:PHHC:045423-DB CM-1423-LPA-2019 in/and -18- LPA-622-2016 (O&M) however, not entitle the workman as such to qualify or claim a right for regularization and neither by an order of reinstatement, the permanency could be granted to the said employee and only he would be held to be entitled in continuous service on the same status as he was when his services were terminated.
(v) The employer would have a right to further terminate him in accordance with law by complying with the mandatory provisions and the employee having any grievance against such a termination could challenge the same in accordance with law.
(vi) The discretion of the Industrial Adjudicator has thus have to be respected and the said Adjudicator has to keep in mind the principles laid do wn by the Apex Court, as noticed above.
(vii) We do not subscribe to the view that the public authorities could claim total immunity and protection from the provisions of Sections 25-F and 25- B of the Act by taking resort to an shielding themselves on account of the fact that the posts were not filled up in accordance with the relevant statutory recruitment rules and, therefore, per se the workman could not claim reinstatement."
22. Keeping in view the facts of the present case, i.e. the length of service and the fact that the workman was a part-time employee, it is not a fit case where the relief of reinstatement should be granted. Hence, we are of the considered opinion that awarding of the compensation to the appellant-workman would be just and equitable as a redressal to the infringement of her rights under the Act.
23. With regard to the quantum of compensation, references can be made to the judgments of the Hon'ble Apex Court in Management, 18 of 19 ::: Downloaded on - 02-06-2023 07:34:14 ::: Neutral Citation No:=2023:PHHC:045423-DB CM-1423-LPA-2019 in/and -19- LPA-622-2016 (O&M) Hindustan Machine Tools Ltd. vs. Ghanshyam Sharma 2018 (18) SCC 80, wherein for a period of 01 year, compensation of `50,000/- had been awarded and in K.V.Anil Mithra and another vs. Sree Sankaracharya University of Sanskrit and another 2021 (4) S.C.T. 415, while noticing the service of the retrenched employee being 04 years, lump sum monetary compensation of `2,50,000/- was awarded to the workman.
24. Applying the ratio of the said decisions and keeping in view the facts of the present case and the DC rates of daily wage employees, we are of the considered opinion that awarding of compensation for a sum of `2,50,000/- would be equitable and justified in this case.
25. As it has been brought to our notice that the appellant- workman has been re-employed on part-time basis, as such, if the service of the workman is required, it will be for the State to keep her in service
26. Consequently, the appeal is allowed and the judgment passed by the learned Single Judge, dated 12.08.2013, is set aside. The compensation be paid to the appellant-workman within a period of 2 months from the date of the receipt of the certified copy of this order. In case the timeline is not adhered to, the appellant shall be liable to pay interest @ 8% per annum from today.
Pending miscellaneous applications, if any, also stand disposed of.
(G.S. SANDHAWALIA) (HARPREET KAUR JEEWAN)
JUDGE JUDGE
February 22, 2023
nitin Whether Speaking Yes
Whether Reportable No
Neutral Citation No:=2023:PHHC:045423-DB 19 of 19 ::: Downloaded on - 02-06-2023 07:34:14 :::