Ishwar Singh v. The Presiding Officer, Industrial Tribunal-cum-Labour Court, Hisar & Anr.

Present:- Mr. Tribhuvan Dahiya, Advocate, for the petitioner. Mr. Raj Mohan Singh, Advocate, for respondent No. 2. AUGUSTINE GEORGE MASIH, J. (ORAL). Counsel for the petitioner contends that the Award dated

14.08.2008 (Annexure-P-4), passed by the Industrial Tribunal-cum-Labour Court, Hisar, (hereinafter referred to as “the Labour Court”), is not sustainable as the Labour Court had failed to take into consideration the fact that the services of the petitioner was terminated without complying with the provisions of Section 25-F of the Industrial Disputes Act, 1947, (hereinafter referred to as “the Act”). He further contends that the termination of services of the petitioner would not be covered by exception 2 (oo) (bb) of the Act even if the stand of the Management that the petitioner was appointed as Chowkidar for looking after the construction material at the stadium during the construction period as the Management Witness, namely, Sukhjit Singh, who appeared as MW-1 before the Labour Court, had admitted the fact that the construction work continued till 2003, whereas the termination of the services of the petitioner admittedly was in May, 2002. He further contends that the Labour Court has mis-directed itself, while passing the impugned C.W.P. No. 2942 of 2009. -2- Award by taking the Appointing Authority of the petitioner as State and the post held by the petitioner as a public post. He contends that the petitioner was appointed by the Managing Committee of the stadium, which was called the District Stadium Committee. It does not fell within the definition of State nor the post on which the petitioner was appointed, was a public post. Since the petitioner was not holding a public post from which he was terminated, the Award passed by the Labour Court depriving him reinstatement in service on this ground, cannot be sustained. He on this basis prays that the Award deserves to be set aside. On the other hand counsel for respondent submits that specific stand of the Management was that the petitioner was appointed for a specified work, which was for looking after the material, which was used in the construction of stadium. He contends that, as a matter of fact, after May, 2002, the petitioner did not turn up for work and he had abandoned the job and, therefore, there was no termination of his services. His further contention is that the Award passed by the Labour Court, is fully justified on the ground that the work having come to an end, the petitioner cannot be reinstated in service. However, he is unable to dispute the fact that the petitioner had completed more than 240 days in service in 12 preceding months from the date of his termination. Counsel for respondent No. 2 is unable to controvert the contention raised by counsel for the petitioner that the post of Chowkidar on which the petitioner was employed, was not a public post nor was the District Stadium Committee, Sirsa, a State under Article 12 of the Constitution of India. I have heard counsel for the parties and have gone through the records of the case. C.W.P. No. 2942 of 2009. -3- In the light of the submissions made by counsel for the petitioner that the petitioner was not holding any public post, while working as a Chowkidar with respondents, which fact could not be controverted by counsel for respondents. The observations of the Labour Court that the appointment of the petitioner was not in accordance with the statutory Rules and, therefore, was not entitled to reinstatement in service, cannot be sustained. It was not a question which was raised by either of the parties before the Labour Court. The Labour Court has travelled beyond the pleadings and evidence on record to return the finding that the petitioner was working on a public post and since his appointment was not in accordance with statutory Rules, he was not entitled to reinstatement in service. Accordingly the said finding is set aside. It is an admitted position that the petitioner was employed as a Chowkidar for looking after the construction material in the Sports Complex at Hisar, which was under construction. He worked with the Management from

02.08.2000 to May, 2002, and he had completed more than 240 days in service in the 12 preceding months from the date of his termination. It is also an admitted position that the provisions of Section 25-F of the Act have not been complied with. Although, counsel for the petitioner has disputed that the appointment of the petitioner was not for a specified period, but in the light of the statement of MW-1 Sukhjit Singh, it cannot be said that the appointment of the petitioner was not for a specified period or work as has been stated. In the cross-examination also it has come on record that the petitioner had completed more than 240 days in service in 12 preceding months with the Management from the date of termination of his services. Nothing has come in the cross- examination, which would suggest that the appointment of the petitioner was not for a fixed term. It has also come in the statement of MW-1 Sukhjit Singh that the stadium construction work continued till 2003, C.W.P. No. 2942 of 2009. -4- therefore, the stand of the Management that the services of the petitioner came to an end in May, 2002, on completion of the construction work, cannot be accepted. Thus, the termination of services of the petitioner in May, 2002, by the Management cannot be said to be in consonance with the terms of his appointment, which would fall under exception of Section 2 (oo) (bb) of the Act. The termination of services of the petitioner being not in consonance with the provisions of the I.D. Act in as much as Section 25-F of the Act had not been complied with, while terminating his services, therefore, the termination of services of the petitioner is held to be illegal. However, in view of the fact that the construction work at stadium had come to an end in the May,2002, which fact counsel for the petitioner is unable rebut, the reinstatement of the petitioner cannot be granted. Since the petitioner had worked with the Management from August, 2000, till May, 2002 and thereafter, would have continued to work with the Management till the work came to an end in the year, 2003, the petitioner is held entitled to compensation in lieu of reinstatement as the same cannot be granted. Accordingly, keeping in view the totality of the facts and circumstances of the present case, the compensation is assessed at Rs. 40,000./-, which shall be disbursed to the petitioner within a period of two months from the date of receipt of certified copy of this Order. In view of the above, the present petition is partly allowed. The impugned Award dated 14.08.2008 (Annexure-P-4), passed by the Labour Court is hereby set aside. However, the petitioner is not entitled to reinstatement in service, but entitled to compensation of Rs. 40,000/- as assessed above. February 19, 2010. sjks. (AUGUSTINE GEORGE MASIH) JUDGE