Executive Engineer Provisional Division v. Amar Singh & Ors.

CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.D.S.Nalwa, Addl.A.G., Haryana, for the petitioner. Mr.Suresh Kumar Redhu, Advocate, for the respondents. *** AUGUSTINE GEORGE MASIH, J. (Oral) Prayer in the present writ petition is for setting aside of the Award dated 9.2.2001 (Annexure P-6) passed by the Industrial Tribunal- cum-Labour Court, Gurgaon vide which the reference has been answered in favour of the respondent-workman holding him entitled to reinstatement in service with continuity thereof and full back wages from the date of demand notice i.e. 21.7.1997. Counsel for the petitioner contends that the Award passed by the Labour Court cannot be sustained as the respondent-workman was working as a Beldar on daily wage basis. His appointment was de hors the statutory rules and, therefore, no order of reinstatement could have been passed by the Labour Court. In support of his contention, he relies upon a C.M.No.18582 of 2009 in C.W.P.No.9343 of 2001 -2- judgment of the Hon'ble Supreme Court in the case of District Telecom Manager and others vs. Keshab Dev, 2008 (4) S.C.T.33 and a Division Bench judgment of this Court in the case of State of Haryana vs. Ishwar Singh and another, 2008 (3) S.C.T. 788 and states that the respondent-workman would not be entitled to reinstatement in service and at the most, would be entitled to grant of compensation for termination of his services in violation of the provisions of the Industrial Disputes Act. His further contention is that the respondent-workman in his cross-examination before the Labour Court had admitted that he had served the demand notice after three years of leaving the job and on this basis, he contends that the abandonment of the job on behalf of the respondent- workman stands duly admitted by him and, thus, his reinstatement could not have been ordered by the Labour Court. Counsel, on this basis, contends that the present writ petition deserves to be allowed and the impugned Award be set aside. His further contention is that in any case, the respondent-workman would not be entitled to full back wages as he has in his cross-examination admitted that he had been working as a daily wager off and on. On the other hand, counsel for the respondent-workman submits that the petitioner-Management had, before the Labour Court, in its pleadings specifically stated that there are no statutory rules governing the appointment of the daily wage workers. If there are no statutory rules governing the service, there is no question of appointment of the respondent-workman being de hors the rules. His further contention is that the cross-examination of the respondent-workman which has been relied upon by the counsel for the petitioner-Management for stating that the C.M.No.18582 of 2009 in C.W.P.No.9343 of 2001 -3- workman had left the job on his own, cannot be read in isolation but has to be read in the context of examination-in-chief. The respondent-workman had only referred to the delay in submission of his demand before the Labour Court and had not as a matter of fact admitted that he had left the job. As regards the statement of respondent-workman that he had been working off and on with a mason as a daily wage labourer, counsel contends that for survival, he had to do some work as he had to look after his family also. On this basis, he prays that the Award passed by the Labour Court is in accordance with law, and does not call for any interference by this Court. I have heard counsel for the parties and have gone through the records of the case. The petitioner-Management has specifically, in its pleadings before the Labour Court, stated that there are no statutory rules governing the service of daily wagers. If that is so, there is no question of the appointment of the respondent-workman being de hors the rules as there are no rules at all. This plea could have been taken only in case there were some statutory rules. Thus, there being no such rules governing the service, this contention of the counsel for the petitioner cannot be accepted. As regards the admission which has been projected by the counsel for the petitioner while referring to the cross-examination of the respondent-workman before the Labour Court, the same is only with reference to the period of submission of the demand notice. The same has to be read as a whole because the question which was put to the respondent-workman was only for seeking an explanation with regard to the delayed submission of the demand notice and was not in regard to abandonment of job by him. C.M.No.18582 of 2009 in C.W.P.No.9343 of 2001 -4- In view of this, the contention as raised by the counsel for the petitioner also cannot be accepted. It is true that the respondent-workman had admitted in his cross-examination that he was working as a daily wage labourer as and when he got some work. In view of this admission, grant of full back wages to the respondent-workman by the Labour Court vide its impugned Award cannot be sustained. Keeping in view the totality of the facts and circumstances, the impugned Award dated 9.2.2001 (Annexure P-6) passed by the Industrial Tribunal-cum-Labour Court, Gurgaon is modified to the extent that the petitioner shall be entitled to reinstatement in service with continuity thereof with 50% back wages from the date of demand notice i.e. 21.7.1997 till the date of his reinstatement. This petition is disposed of accordingly. C.M.No.18582 of 2009 Prayer in the present application is for grant of benefit of last pay drawn as per the provisions as contained in Section 17-B of the Industrial Disputes Act. A perusal of the record shows that no stay of the reinstatement or the Award was passed by this Court and only payment of back wages was stayed. Therefore, the present application would not be maintainable. It would not be out of way to mention here that the petitioner-Management in response to the application moved by the respondent-workman have stated that in compliance with the Award dated

9.2.2001 passed by the Industrial Tribunal-cum-Labour Court, the respondent-workman had been taken back on work by the Department, like other daily wagers. He had been served with retrenchment notice under Section 25-F of the Act vide memo. dated 10.7.2001. C.M.No.18582 of 2009 in C.W.P.No.9343 of 2001 -5- In view of the fact that the respondent-workman, as a matter of fact, has been taken back in service, the present application under Section 17-B of the Act, cannot be entertained. Accordingly, the present application stands rejected. May 20, 2010 poonam ( AUGUSTINE GEORGE MASIH ) JUDGE