Punjab-Haryana High Court
Hari Chand vs The Presiding Officer And Anr on 2 April, 2024
Neutral Citation No. : 2024:PHHC:046071
CWP-17272-2017 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
253
CWP-17272-2017
Decided on : 02.04.2024
Hari Chand
. . . Petitioner(s)
Versus
Presiding Officer, Labour Court-I,
Faridabad and another
. . . Respondent(s)
CORAM: HON'BLE MR. JUSTICE SANJAY VASHISTH
PRESENT: Mr. Anil Shukla, Advocate
for the petitioner(s).
Mr. Satish Singla, AAG, Haryana.
****
SANJAY VASHISTH, J. (Oral)
1. Petitioner - Hari Chand, aged 26 years, has prayed for quashing
of the award dated 03.10.2016 (Annexure P-7), passed by the Industrial
Tribunal-cum-Labour Court-I, Faridabad, whereby, Reference No.30/2016,
under Section 10(1)(C) of the Industrial Disputes Act, 1947 (in short, 'Act
1947'), has been answered partially in favour of the workman (petitioner
herein), after giving an observation that there is non-compliance of Section
25-F of the Act of 1947, and thus, his termination from service is illegal.
However, Learned Tribunal held that the petitioner cannot
claim his reinstatement in regular service, and held him entitled for a lump-
sum amount of compensation of Rs.15,000/- only.
Thus, assailing the same, petitioner - workman has filed the
present writ petition for seeking his reinstatement in service on the post of
'Mali' in the office of respondent No.2 i.e. M/s Govt. College, Tigaon,
Faridabad (Management).
JAWALA RAM 2. As per the pleaded case of the workman, he joined on the post
Neutral Citation No. : 2024:PHHC:046071
of 'Mali' on 01.08.2008, and was terminated from service on 24.01.2012.
Against the said action of termination, demand notice was served on
12.08.2015, and after the same being referred as an industrial dispute under
Section 10(1)(C) of the Act 1947, workman filed his claim statement on
26.04.2016, which was replied by respondent No.2 (Management) on
17.05.2016.
3. In the written statement, management disclosed that workman
was appointed on the post of 'Mali' and for which notice was issued on
27.01.2009 and interview was conducted on 30.01.2009, but no appointment
letter was ever issued to the workman. However, it was admitted in the
written statement that name of the petitioner was recommended by the
committee and subsequently, on the basis of the letter No. 23/3-2011 SE(3)
dated 02.12.2011, services of the workman were terminated on 12.12.2011,
with a purpose to fill the post on contractual basis through outsourcing
agency as is evident from letter No. 6/1-2011 M.E (4) dated 06.12.2011. It
is further pleaded that the outsourcing agency also recommended the name
of the petitioner on 15.12.2011, but workman failed to report back on duty,
after the recommendation of the outsourcing agency.
4. After considering all the aspects, learned Tribunal through its
award in question made an observation that there is violation of Section 25-F
of the Act 1947, but since the recruitment of the petitioner is not as per rules,
in view of the judgment of Hon'ble the Apex Court titled as Secretary, State
of Karnataka vs. Uma Devi and others, 2006(4) SCC 1, workman cannot be
held entitled for reinstatement in regular service. However, workman was
held to be entitled for a lump-sum amount of compensation of Rs.15,000/-
payable within a period of three months, from the date of publication of
JAWALA RAM award and on failure of payment within the stipulated time, interest @ 9%
Neutral Citation No. : 2024:PHHC:046071
p.a was to be paid by the Management.
5. Learned counsel for the petitioner - workman, argues that the
finding given in the award is completely untenable. He submits that the
principle of Uma Devi's case (supra), would not be applicable, in the
present case for two reasons;
(i) As per the written statement filed by the Management, petitioner was
appointed on the post of 'Mali' after adopting the due process of law i.e.
after conducting interview of the petitioner, his name was recommended by
the Committee for appointment on the post of Mali; and
(ii) that the principle laid down in the judgment of Uma Devi's case (supra)
cannot deny any workman, benefits/protection accruing to him through the
provisions of the Act 1947.
6. It is admitted position in the present case that the workman
sought his reinstatement on the basis of non-compliance of Section 25-F of
the Act 1947, by the Management, but said benefit has not been extended
only for the reason that granting of such claim would not be tenable in view
of the principle laid down in Uma Devi's case (supra).
7. While agreeing with the submissions of the counsel for the
petitioner, this Court is guided with the principle of law discussed by
Hon'ble the Supreme Court in K.V. Anil Mithra and another vs. Sree
Sankaracharya University of Sanskrit and another, 2022(1) Apex Court
Judgments (SC) 85 : Law Finder Doc ID #1901762. The factual aspect in
the relied case was that workman was terminated without following the
provision of Section 25-F of the Act 1947. While deciding reference,
learned Tribunal held that the termination is illegal, because there is
violation of Section 25-F of the Act 1947, and therefore, held the
JAWALA RAM termination of the workman void under the provision of the Act of 1947, and
Neutral Citation No. : 2024:PHHC:046071
further directed to treat the workman, as deemed to be in service with 50%
back-wages, till service is validly terminated.
When the said award was assailed before the Hon'ble Single
Bench of High Court of Kerala, without disturbing the finding of fact
recorded by the Tribunal in its award, it held that each of the workman has
completed more than 240 days of service in the preceding 12 months from
the date of termination, and therefore, services were terminated without
observance of Section 25-F of the Act 1947.
However, Hon'ble Single Bench set aside the award on a
premise that if the order of appointment was itself not valid and not in terms
of the procedure prescribed, said irregular appointments/appointees are not
entitled to seek protection of the Act.
In the Appeal, Hon'ble Division Bench, maintained the order of
learned Single Judge and thus, issue reached before Hon'ble the Apex Court.
Hon'ble the apex Court converted the case of K.V. Anil Mithra
and another (supra) into a Civil Appeal, to delve into the question of law
that whether the protection of the Act 1947, would be available or not to the
workmen, who are appointed in different manner in different circumstances
and whether nature of appointment would be a pre-condition for compliance
of Section 25-F of the Act 1947, and also scheme of the Act 1947 or not.
8. While dealing with the same, Hon'ble the Apex Court dealt
with all the different manners in which the employees/workmen are
appointed such as; daily wagers, on casual basis, part time, ad-hoc,
contractual and broadly decided that for the purpose of deciding the rights of
the workman, for which protection has been provided under the Act 1947,
manner/nature of appointment cannot be treated as a condition precedent.
JAWALA RAM While dealing with the scheme of the Act, Hon'ble the Apex Court
Neutral Citation No. : 2024:PHHC:046071
categorically held that the workman employed even as a daily wager or in
any capacity, once completes 240 days in preceding 12 months from the
alleged date of termination, can be terminated from his services only after
compliance of the provision of Section 25-F of the Act 1947. Non-
compliance of the provisions would render the termination void ab-initio.
9. Counsel for the petitioner further argues that that once,
termination is held to be in violation of Section 25-F of the Act 1947, in all
probability, the endeavour of the learned Labour Court should have been to
order for reinstatement of the workman in service. To substantiate his
argument, Counsel for the petitioner relies on the judgment of Hon'ble the
Supreme Court titled as Jeetubha Khansangji Jadeja vs. Kutchh District
Panchayat, 2022(4) S.C.T. 211 : Law Finder Doc ID #2039607, wherein
reinstatement of workman was ordered after a period of 20 years from the
date of his termination from service, along with continuity in service and
back-wages for a period of two years. To reach to this conclusion, reliance
was placed on Hindustan Tin Works (P) Ltd. v. Employees of M/s
Hindustan Tin Works Pvt. Ltd. And others, (1979) 2 SCC 80, wherein
three-judge Bench of the Hon'ble Apex Court observed that "the relief of
reinstatement with continuity in service can be granted when termination of
service is found to be invalid". Thus, illegal termination of workman would
mean that right of work of the workman has been taken away by the
employer illegally, in contravention or breach of the contract, depriving the
workman of his earnings.
Further reliance was placed on Bharat Sanchar Nigam Limited
v. Bhurumal, 2014 (7) SCC 177, wherein Hon'ble the Supreme Court while
dealing with a situation that when the termination of a daily wager was
JAWALA RAM found to be illegal on the ground that it was a result of unfair labour practice
Neutral Citation No. : 2024:PHHC:046071
or where the juniors are regularized and the workman, who is senior, has
been terminated illegally, observed that "the terminated worker should not
be denied reinstatement unless there are some other weighty reasons for
adopting the course of grant of compensation instead of reinstatement." In
such cases, reinstatement should be rule and only in exceptional cases for the
reasons stated to be in writing, such a relief can be denied.
10. On the other hand, learned State counsel submits that the
workman cannot claim his reinstatement, even if there is clear violation of
Section 25-F of the Act 1947, because, his claim is barred in view of the
Constitutional Bench judgment i.e. Uma Devi's case (supra).
This submission is not acceptable for the simple reason that
protection of rights of workman under the provisions and scheme of the Act
1947, was never the part of discussion in the aforesaid judgment.
11. Broadly, the facts and circumstances in Uma Devi's case
(supra) were entirely different, and a principle of law laid down by Hon'ble
the Apex Court in particular gamut of facts cannot apply uniformly to all the
service cases of the employees/workmen, whose rights have direct
protection under the Act 1947. Even the object of the enactment of 1947
mandates the management/establishment to follow the provisions of the
Industrial Disputes Act, 1947, before taking any action against the workman.
12. In the totality of facts and circumstances, this Court is in
complete disagreement with the reasons assigned in the impugned award.
Rather, by following the principle of law laid down in the aforementioned
judgments i.e. K.V. Anil Mithra's case (supra) and Jeetubha Khansangji
Jadeja's case (supra), this Court is firm in reaching to the conclusion that
once, the services of the workman have been admitted by the Management,
JAWALA RAM raising of plea of nature of appointment for denying the protection of the Act
Neutral Citation No. : 2024:PHHC:046071
1947 to the workman, is untenable and unsustainable. Thus, this Court has
no hesitation to hold that the termination of the workman is illegal and in
violation of Section 25-F of the Act 1947.
Another fact that cannot loose sight is that it is the admitted
case of the respondents that the petitioner was appointed after being
interviewed and recommended by the Committee. However, no material i.e.
the rules to be followed by the Management for the purpose of filling up
vacancy of 'Mali', have not been brought on record.
13. Thus, impugned award dated 03.10.2016 (P-7) is
set-aside/modified and the reference is decided in favour of the
petitioner - workman. Consequently, petitioner - workman is ordered
to be reinstated in service from the date of demand notice along with
50% back-wages with continuity in service.
Needless to observe that amount of compensation of
Rs.15,000/-, if already paid and received by the petitioner - workman, shall
be returned to the Management along with interest @ 6% per annum, at the
time of his reinstatement in service.
14. Let this direction be complied with within a period of three
months from today i.e. on or before 01.07.2024.
(SANJAY VASHISTH)
JUDGE
April 02, 2024
J.Ram
Whether speaking/reasoned: Yes/No
Whether Reportable: Yes/No
