Punjab-Haryana High Court
State Of Haryana Public Health ... vs Sh. Deepak Kumar S/O Hari Chand And ... on 4 September, 2024
Neutral Citation No:=2024:PHHC:115123
CWP-27862-2017 (O&M) 1
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
228 CWP-27862-2017 (O&M)
Date of Decision : 04.09.2024
STATE OF HARYANA PUBLIC HEALTH ENGINEERING
DEPARTMENT AND ANR.
.... PETITIONERS
V/S
DEEPAK KUMAR AND OTHERS
.... RESPONDENTS
CORAM : HON'BLE MR. JUSTICE JAGMOHAN BANSAL
Present : Mr. Raman Sharma, Addl.A.G., Haryana.
Mr. Rahul Jain, Advocate
for respondents No.1 to 3.
****
JAGMOHAN BANSAL, J. (Oral)
1. The petitioner through instant petition under Articles
226/227 of the Constitution of India is seeking setting aside of award
dated 25.05.2017 (Annexure P-1) whereby the Labour Court has
answered the reference in favour of workmen.
2. The petitioner is State of Haryana and respondents No.1 to 3
are workmen. The Labour Court has passed a common award with
respect to all the workmen and facts were borrowed from the case of
Deepak Kumar-respondent No.1. The respondent No.1 from June' 2012
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to January' 2016 worked with petitioner-Public Health Engineering
Department. The period of commencement of service of other
respondents is little earlier. They were engaged through contractor.
During the aforesaid period, their services were shown to be availed
through two different contractors. They were not allowed to work after
January' 2016 which compelled them to approach Labour Court by way
of reference in terms of Section 10 of Industrial Disputes Act (for short
'ID Act'). The Labour Court rejecting contention of petitioner that
workmen were working through contractor has held that the management
was liable to comply with provisions of Section 25B read with Section
25F of ID Act. As there was no compliance of aforesaid provisions, the
Labour Court found it appropriate to direct the management to reinstate
the workmen with 50% back wages.
3. Mr. Raman Sharma, Addl.A.G., Haryana, submits that from
the record of provident fund, it is evident that contribution towards
provident fund was made by contractor, thus, it is evident beyond the pale
of doubt that workmen were engaged through contractors who were
licensed contractors in terms of Contract Labour (Abolition and
Regulation) Act, 1970 (for short '1970 Act'). There was no
responsibility of petitioner to comply with provisions of ID Act and
Labour Court exceeding its jurisdiction has ordered to reinstate the
workmen. The workmen are not entitled to wages in terms of Section
17B of ID Act because they were gainfully employed during the
pendency of present petition. Deepak Kumar-respondent No.1 has filed
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documents on the official site of State of Haryana wherein he has
disclosed his income Rs.60,000/- per annum. The said document
vindicates stand of the petitioner. In any case, the workmen are labourer
and they could not survive without working and earning their livelihood.
4. Per contra, Mr. Rahul Jain, Advocate submits that workmen
submitted their affidavits before this Court in August' 2018 disclosing
that they are not gainfully employed, thus, they are entitled to benefit
arising out of Section 17B of ID Act. The respondent has placed on
record statement of one year of Deepak Kumar disclosing income of
Rs.60,000/- per annum. Neither evidence with respect to income of other
workers has been brought on record nor any documentary evidence with
respect to income of Deepak Kumar except one year has been brought on
record.
5. I have heard the arguments of counsel for the parties and
perused the record.
6. The Labour Court has recorded findings to the effect that the
petitioner-management has failed to prove that workmen were working
through contractor. There is no evidence of license under 1970 Act.
contractors, thus, contention of management that workmen were engaged
through contractors is misconceived. The Court has further relied upon
judgment of Supreme Court in Bhilwara Dugdh Utpadak Sahakari
Samiti Ltd. v. Vinod Kumar Sharma, (2011) 15 SCC 209 wherein Court
has held that in order to avoid liability under various labour statutes,
employers are resorting to subterfuge by trying to show that their
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employees are, in fact, the employees of a contractor.
7. From the perusal of statement of provident fund
contribution, it is evident that workmen were engaged through contractor.
The liability qua provident fund was discharged by contractor. Had
workmen not been engaged through contractor, there was no question of
deposit of provident fund by contractor. The petitioner examined Sube
Ram Contractor who had supplied work force for a short period of 06
months but did not examine another contractor who had supplied work
force from 2012 to 2015. On account of non-leading of evidence with
respect to another contractor, the Labour Court has passed impugned
order.
8. The matter is pending before this Court since 2017 and as
per Section 17B of ID Act, workman is entitled to last drawn salary
subject to furnishing affidavit to the effect that he is not gainfully
employed. The workmen had filed their affidavit in August' 2018 and as
per Annexure P-12, respondent No.1-Deepak Kumar had disclosed his
income Rs.60,000/- per annum before State of Haryana-petitioner. The
said document does not disclose whether the income relates to one
particular year or it was constant income, thus, it is difficult to conclude
that Deepak Kumar was earning Rs.60,000/- per annum each year. The
Labour Court has awarded back wages to the tune of 50%. The workmen
were discharged in January' 2016 and impugned order was passed on
25.05.2017 meaning thereby there is gap of 1½ year between the date of
discharge and date of impugned order. The workmen were getting salary
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Rs.5800/- per month.
9. In Senior Superintendent Telegraph (Traffic), Bhopal vs.
Santosh Kumar Seal and others, (2010) 6 SCC 773, Hari Nandan
Prasad and another vs. Employer I/R to Management of Food
Corporation of India and another, (2014) 7 SCC 190, District
Development Officer and another vs. Satish Kantilal Amrelia, (2018) 12
SCC 298, State of Uttarakhand and another vs. Raj Kumar (2019) 14
SCC 353 and Ranbir Singh vs. Executive Engineer PWD (2021) 14
SCC 815 Supreme Court has held that it is neither mandatory nor
automatic to reinstate workman who has been retrenched without
complying with provisions of Section 25F of 1947 Act. He may be
granted compensation.
10. Considering the fact that workmen were engaged through
contractor, this Court does not find it appropriate to uphold impugned
order qua their reinstatement, however, they deserve lump sum
compensation in view of Section 17B of ID Act as well as 50% back
wages granted by impugned order. There is substance in the argument of
petitioner that workmen must be working during the pendency of present
petition because they could not survive without earning, however, there is
no evidence led by petitioner except Annexure P-12 as discussed
hereinabove.
11. Considering the length of service, last drawn salary and the
fact that the workmen were engaged through contractor, this Court finds
it appropriate to direct the petitioner to pay a lump sum compensation of
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Rs.3.5 lakhs to each workman within three months from today. The
amount would carry interest @ 15% per annum from the expiry of three
months if the payment is not made within aforesaid period.
11. Disposed of.
12. Pending miscellaneous application (s), if any, shall also
stand disposed of.
(JAGMOHAN BANSAL)
JUDGE
04.09.2024
anju
Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No
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