Punjab-Haryana High Court
Guddi @ Rajwanti vs State Of Haryana And Others on 7 September, 2012
Author: Rajesh Bindal
Bench: Rajesh Bindal
Civil Writ Petition No. 325 of 2011 (1)
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Writ Petition No. 325 of 2011 (O&M)
Date of decision : 7.9.2012
Guddi @ Rajwanti ... Petitioner
vs
State of Haryana and others ... Respondents
Coram: Hon'ble Mr. Justice Rajesh Bindal
Present: None for the petitioner.
Mr. Anjum Ahmed, Additional Advocate General, Haryana.
Rajesh Bindal, J.
The petitioner has challenged the award dated 26.4.2010, whereby her claim for reinstatement with continuity in service and full back wages was rejected by the learned Industrial Tribunal-cum-Labour Court, Hisar (for short, 'the Labour Court').
The petitioner was appointed as Beldar-cum-Mali on daily rate basis with the respondent department on 12.6.1990 and was posted in Dadri Range and Block under the control of respondent nos. 3 and 4. She worked in the department continuously till 6.9.2004. After she had put in more than 14 years of service, her services were terminated on 7.9.2004 in violation of Section 25-F of the Industrial Disputes Act, 1947 (for short "the Act") as no retrenchment compensation was paid to her. Aggrieved by her termination, she raised an industrial dispute. The matter was referred to the Labour Court, which was decided against the petitioner on 26.4.2010 vide the impugned award. The learned Labour Court granted relief of compensation of ` 56,000/- in lieu of the reinstatement in service. It is this award which is impugned in the present writ petition by the petitioner.
Civil Writ Petition No. 325 of 2011 (2) It was pleaded by the petitioner in the writ petition that she worked as Beldar-cum-Mali on daily wages from 12.6.1990 continuously. After she had put in more than 14 years of service, her services were unceremoniously terminated. The respondent-management retained employees junior to her in service and further employed fresh persons after her termination in utter violation of Section 25-F, G, H of the Act. It is further pleaded that the Labour Court vide its award dated 26.4.2010 decided the reference against the petitioner and in favour of respondent management thereby dismissing her claim, completely on flimsy grounds even after giving a categoric finding to the effect that the petitioner had completed 240 days of service in 12 months preceding the date of her termination. Once it was proved that the petitioner had completed 240 days of service during the preceding 12 months, resultant termination in violation of Section 25-F of the Act should have been held to be bad with consequential relief of re-instatement with continuity of service and full back wages. He further submitted that the learned court below failed to appreciate that in the present case it was not the pleaded case of the respondent-management that the petitioner was not at all entitled for re- instatement with continuity in service and back wages because she was daily wager and was not appointed as per the service rules. No issue in this regard was framed by the Labour court.
It was further pleaded that the respondent management was given number of opportunities to file written statement before the Labour Court but the same was not filed. Ultimately costs were also imposed. Their defence was also struck off. The record pertaining to the service of the petitioner was also not produced by the respondent management. Despite no evidence against the petitioner, the learned Labour Court rejected the claim of the petitioner. The prayer is for reinstatement of the petitioner with all consequential reliefs.
On the other hand, learned counsel for the respondent management submitted that the petitioner had not worked for 240 days or more in twelve preceding months before her alleged termination. In fact, her services were never terminated by the respondent-management rather she Civil Writ Petition No. 325 of 2011 (3) had left the service on her own, hence, the question of violation of Section 25-F of the Act does not arise at all. He further submitted that the petitioner is not entitled to any relief being daily wager, as she was not appointed as per the service rules against the regular sanctioned post, thus, relief of re- instatement with continuity and back wages should not be granted to her.
Heard learned counsel for the State and perused the paper book.
Hon'ble the Supreme Court in Ramesh Kumar vs State of Haryana, 2010 (1) SCT 675 held that if sufficient material is shown that workman has completed 240 days of service, his/ her service cannot be terminated without giving notice or payment of compensation in lieu thereof in terms of Section 25-F of the Act.
In Anoop Sharma vs Executive Engineer Public Health Division No.1, Panipat (Haryana), 2010 (3) SCT 319, Hon'ble the Supreme Court has discussed the scope of term continuous service under Section 25- B of the Act, which when read along with Section 25-F (a) and (b) of the Act mandates giving of one month's notice or pay in lieu thereof and otherwise than by way of punishment or in accordance with express terms incorporated in the order of appointment. If a workman is retrenched by an oral order or communication or is simply asked not to come for duty, the employer will be required to lead tangible and substantive evidence to prove compliance of Clauses (a) and (b) of Section 25-F of the Act. Relevant paragraphs of the aforesaid judgment are reproduced hereunder:-
"13. An analysis of the above reproduced provisions shows that no workman employed in any industry who has been in continuous service for not less than one year under an employer can be retrenched by that employer until the conditions enumerated in Clauses (a) and (b) of Section 25-F of the Act are satisfied. In terms of Clause (a), the employer is required to give to the workman one month's notice in writing indicating the reasons for retrenchment or pay him wages in lieu of the notice. Clause (b) casts a duty upon the employer to pay to the workman at the time of retrenchment, compensation Civil Writ Petition No. 325 of 2011 (4) equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months. This Court has repeatedly held that Section 25-F (a) and (b) of the Act is mandatory and non-compliance thereof renders the retrenchment of an employee nullity. This Court has used different expressions for describing the consequence of terminating a workman's service/employment/engagement by way of retrenchment without complying with the mandate of Section 25-F of the Act. Sometimes it has been termed as ab initio void, sometimes as illegal per se, sometimes as nullity and sometimes as non est. Leaving aside the legal semantics, we have no hesitation to hold that termination of 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 25-F (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.
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15. In State Bank of India v. N. Sundara Money (supra), the Court emphasised that the workman cannot be retrenched without payment, at the time of retrenchment, compensation computed in terms of Section 25-F (b).
16. The legal position has been beautifully summed up in Pramod Jha v. State of Bihar (supra) in the following words:
"The underlying object of Section 25-F is twofold. Firstly, a retrenched employee must have one month's time available at his disposal to search for alternate employment, and so, either he should be given one month's notice of the proposed termination or he should be paid wages for the notice period. Secondly, the workman must be paid retrenchment compensation at the time of retrenchment, or before, so that Civil Writ Petition No. 325 of 2011 (5) once having been retrenched there should be no need for him to go to his employer demanding retrenchment compensation and the compensation so paid is not only a reward earned for his previous services rendered to the employer but is also a sustenance to the worker for the period which may be spent in searching for another employment. Section 25-F nowhere speaks of the retrenchment compensation being paid or tendered to the worker along with one month's notice; on the contrary, clause (b) expressly provides for the payment of compensation being made at the time of retrenchment and by implication it would be permissible to pay the same before retrenchment. Payment or tender of compensation after the time when the retrenchment has taken effect would vitiate the retrenchment and non-compliance with the mandatory provision which has a beneficial purpose and a public policy behind it would result in nullifying the retrenchment"
In Harjinder Singh vs Punjab State Warehousing Corporation 2010 (3) SCC 192, Hon'ble the Supreme Court has held as under:-
"30. Of late, there has been a visible shift in the courts' approach in dealing with the cases involving the interpretation of social welfare legislations. The attractive mantras of globalisation and liberalisation are fast becoming the raison d'etre of the judicial process and an impression has been created that the constitutional courts are no longer sympathetic towards the plight of industrial and unorganized workers. In large number of cases like the present one, relief has been denied to the employees falling in the category of workmen, who are illegally retrenched from service by creating by-lanes and side-lanes in the jurisprudence developed by this Court in three decades. The stock plea raised by the public employer in such cases is that the initial employment/engagement of the workman- employee was contrary to some or the other statute or that Civil Writ Petition No. 325 of 2011 (6) reinstatement of the workman will put unbearable burden on the financial health of the establishment. 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.
31. It need no emphasis that if a man is deprived of his livelihood, he is deprived of all his fundamental and constitutional rights and for him the goal of social and economic justice, equality of status and of opportunity, the freedoms enshrined in the Constitution remain illusory. Therefore, the approach of the courts must be compatible with the constitutional philosophy of which the Directive Principles of State Policy constitute an integral part and justice due to the workman should not be denied by entertaining the specious and untenable grounds put forward by the employer - public or private."
In Devinder Singh vs Municipal Council, Sanaur, 2011 (6) SCC 584, Hon'ble the Supreme Court held that provisions of Section 25-F,
(a), (b) are mandatory and termination of service of a workman which amounts to retrenchment within the meaning of Section 2 (oo) of the Act without giving one month's notice or pay in lieu thereof and retrenchment compensation is null and void. Further it has held that the appellant shall be entitled to reinstatement with continuity in service and wages for the period between the date of award and the date of actual reinstatement. The relevant paragraphs of the aforesaid judgment are reproduced hereunder:-
"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 Civil Writ Petition No. 325 of 2011 (7) retrenchment compensation is null and void/ illegal/ inoperative.
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28. In the result, the appeal is allowed. The impugned order is set aside and the award passed by the Labour Court for reinstatement of the appellant is restored. If the respondent shall reinstate the appellant within a period of four weeks from today, the appellant shall also be entitled to wages for the period between the date of award and the date of actual reinstatement. The respondent shall pay the arrears to the appellant within period of three months from the date of receipt / production of the copy of this order."
On due consideration of the matter, I do not find any merit in the submissions made by the learned counsel for respondent management. There was no plea raised by it before the Labour Court that the employment of the petitioner was not in accordance with rules or norms of public appointment. In fact defence of the management was struck off as even reply was not filed. In the absence of any material, which was required to be pleaded and set up by respondent management in the first instance, the learned Labour court could not come to the conclusion that the said appointment was back door entry and not in accordance with law. Such a finding has to be negated, as it is unsustainable in law, in view of the categorical observations made by Hon'ble the Supreme Court in the above mentioned decisions.
It is a case in which the respondent management has neither filed written statement before the learned Labour Court nor produced any record pertaining to the services of the petitioner to establish their claim despite grant of numerous opportunities for the purpose.
In the present case, the facts reveal that the petitioner had been in continuous employment for the last more than fourteen years, when her services were terminated. The aforesaid decisions are fully applicable in the facts and circumstances of the present case.
Civil Writ Petition No. 325 of 2011 (8) For the reasons recorded above, the present petition is allowed. The impugned award dated 26.4.2010 is set aside. The respondent- management is directed to reinstate the petitioner with continuity of service and pay wages for the period between the date of award and the date of actual reinstatement.
7.9.2012 (Rajesh Bindal) vs Judge