Parveen Kumar v. State of Haryana & Ors.

Present:- Mr. Rakesh Kumar Sharma, Advocate, for the petitioner. Mr. D.S. Nalwa, Addl. A.G. Haryana, for respondents No. 1 to 3. Mr. Samir Rathore, Advocate, for, Mr. Sumeet Goel, Advocate, for respondent No. 4. AUGUSTINE GEORGE MASIH, J. (ORAL). The prayer in the present writ petition is for quashing of the Award dated 22.09.2000 (Annexure-P-5), passed by the Labour Court, Ambala, vide which the reference had been answered against the petitioner/Workman holding therein that the petitioner/Workman had failed to prove that he had completed more than 240 days in service in the 12 preceding months from the date of his termination and further that the termination of services of the petitioner/Workman is covered by exception (bb) of Section 2 (oo) of the Industrial Disputes Act, 1947, (hereinafter referred to as “the Act”), which would not amount to retrenchment. Counsel for the petitioner/Workman contends that the finding recorded by the Labour Court with regard to non completion of 240 days in service in the 12 preceding months from the date of his termination by the petitioner/Workman, is erroneous as the documentary evidence and the admissions made by respondents before the Labour Court, had not been taken C.W.P. No. 10312 of 2001 -2- into consideration. He contends that the Labour Court, while discussing the evidence had held that the petitioner/Workman had worked with respondent/Municipal Council for 31 days in July, 1995, and 31 days in August, 1995. Thereafter, it had also held that the petitioner/Workman had worked from January, 1996, to May, 1996, thereby the petitioner/Workman had completed 214 days. He, thus, relies upon the statement (Annexure-P-3) of respondent/Municipal Council giving details of the period during which the petitioner/Workman had worked with respondent/Municipal Council, which document has not been disputed by respondent/Municipal Council, wherein it is shown that the petitioner/Workman had worked for 30 days in November, 1995, and 31 days in December, 1995. When these days are added to the days already assessed by the Labour Court, the total number of days, which the petitioner/Workman had worked with respondent/Municipal Council in the 12 preceding months from the date of his termination comes to 275 days. He on this basis contends that the petitioner/Workman would be entitled to reinstatement in service with all consequential benefits. On the other hand, counsel for respondents have submitted that even if the petitioner/Workman had completed more than 240 days in service in the 12 preceding months from the date of his termination, still he would not be entitled to reinstatement in service as his appointment was for a fixed term and his termination was because of non sanction of the post further. The appointment of the petitioner/Workman was not in consonance with the statutory Rules, governing the service and, therefore, reinstatement in service, in any case, cannot be granted to him and, therefore, the impugned Award passed by the Labour Court, Ambala, is fully justified and does not call for any interference by this Court. C.W.P. No. 10312 of 2001 -3- I have heard counsel for the parties and have gone through the records of the case. The period of service, as has been stated by counsel for the petitioner/Workman, which is a documentary evidence based on records, leaves no manner of doubt that the petitioner/Workman had completed more than 240 days in service in the 12 preceding months from the date of his termination, as has been stated hereinabove. If that be so, since no retrenchment compensation or notice pay in lieu thereof was granted to the petitioner/Workman, the termination of services of the petitioner/Workman is held to be in violation of Section 25-F of the Act. The question now, which needs to be answered is whether the petitioner/Workman would be entitled to reinstatement in service in the light of the termination of services of the petitioner/Workman being in violation of Section 25-F of the Act as the petitioner/Workman was appointed in service on 01.02.1992 and he worked continuously with respondent/Municipal Council till 31.05.1996 ? The appointment of the petitioner/Workman was not through the employment exchange nor any regular process for appointment to the post was resorted to, thus, his appointment was de hors statutory Rules, governing the service and in violation of Articles 14 and 16 of the Constitution of India. In the light of the judgment of Hon'ble the Supreme Court in the case of Secretary, State of Karnataka Versus Uma Devi, 2006(4) S.C.C. 1, the petitioner would not be entitled to reinstatement in service, but would be entitled to compensation for the period he had worked with respondent/Municipal Council. The contention of counsel for the respondents that the appointment of the petitioner/Workman was for a fixed term and, therefore, the petitioner/Workman would not be entitled to benefit under Section 25-F of the Act, cannot be accepted for the reason that no contract has been placed C.W.P. No. 10312 of 2001 -4- on record, which would show that there was some specified period provided for his appointment. In the absence of such evidence on record, it cannot be said that the appointment of the petitioner/Workman was for a fixed term, which would fall under exception (bb) of Section 2 (oo) of the Act. thus, the assertion of counsel for respondents in this regard stands rejected. Hon'ble the Supreme Court in the case of Telecom District Manager and others Versus Kesheb Deb 2008 (4) SCT 33 , and a Division Bench judgment of this Court in the case of State of Haryana Versus Ishwar Singh and another, 2008 (3) SCT 788, has held that where the termination of services of Workman is in violation of Section 25-F of the Act and the initial appointment of the Workman is de hors the statutory Rules, although, the Workman would not be entitled to reinstatement in service, but would be entitled to compensation to balance the equities between the parties in lieu of reinstatement. In view of the fact that the termination of services of the Workman was not in consonance with Section 25-F of the Act, the petitioner/Workman is held entitled to compensation, which is assessed at Rs. 50,000/- keeping in view the length of service rendered by him as also the period spent by him in agitating his claim before the Labour Court and this Court. Accordingly, the present writ petition is allowed. The impugned Award dated 22.09.2000 (Annexure-P-5), passed by the Labour Court, Ambala, is hereby set aside. The petitioner/Workman is held entitled to compensation of Rs. 50,000/- to be paid by respondent No. 4/Municipal Council within a period of two months from the date of receipt of certified copy of this Order. May 11, 2010. sjks. (AUGUSTINE GEORGE MASIH) JUDGE