Ramesh Kumar vs State Of Haryana

1 Minister's residence. On 31.01.1993, his service was

terminated without any notice or retrenchment

compensation as provided in the Industrial Disputes Act,

1947 (hereinafter referred to as "the Act"). After knowing

that persons similarly appointed were either allowed to

continue or regularized by the Department, the appellant

sent a notice to the respondent. Since the Department

declined to accede to his request, appellant made a

Reference No. 81 of 1999 before the Labour Court, Union

Territory, Chandigarh. He pleaded before the Labour

Court that he had completed more than 240 days of

service and all along he was performing his duties at the

residence of the Chief Minister, Haryana. The

Government has made a policy that persons who have

completed 240 days of service may be regularized,

however, instead of regularization of his services, he was

terminated w.e.f. 31.01.1993. He prayed before the

Labour Court for setting the order of termination of his

2 service and for an award for reinstatement with full back-

wages.

4) It is the case of the Department that the workman

has not completed 240 days of service except in the year

1992. He has not fulfilled the circular dated 27th May,

1993 entitling him for regularization of his service.

Further, the Government has not framed any policy to

regularize the service of persons who have completed 240

days as claimed.

5) Before the Labour Court, the workman himself was

examined as AW-1. On the side of the Department, one

Junior Engineer was examined as MW-1. On

consideration of the materials placed, the Labour Court,

by award dated 10.02.2003, has arrived at a conclusion

that the workman has worked with the Department for a

period of more than 240 days within 12 calendar months

preceding the date of termination i.e. 31.01.1993, and in

view of non-compliance of Section 25F of the Act, he is

3 entitled to reinstatement. The Labour Court has also

directed reinstatement with continuity of service with 50

per cent back-wages from the date of termination. With

the above direction, reference was accepted and answered

in the affirmative.

6) Aggrieved by the said award of the Labour Court, the

State of Haryana challenged the same in CWP No. 575 of

2004 before the Punjab and Haryana High Court. By the

impugned order dated 23.12.2008, the High Court set

aside the award of the Labour Court granting

reinstatement and back-wages, consequently allowed the

writ petition.

7) Questioning the said decision of the High Court, the

workman has filed the present appeal by way of special

leave.

8) Heard learned counsel for the appellant-workman as

well as learned counsel for the respondent-State of

Haryana.

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9) The only point for consideration in this appeal is

whether the High Court was justified in setting aside the

award of the Labour Court when the appellant had

established that he was in continuous service for a period

of 240 days in a calendar year, particularly, when

similarly placed workmen were regularized by the

Government.

10) It is not in dispute that the appellant was appointed

as a Mali and posted at the residence of the Chief Minister

in the year 1991. The materials placed by the appellant

before the Labour Court clearly show that he had worked

for three years and there was no break during his service

tenure. He was issued identity card to work in the

residence of the Chief Minister and no reason was given

for his termination. It is also his case that there was no

show cause notice and no inquiry was conducted. The

perusal of the order of the Labour Court clearly shows

that one Shri Nasib Singh, Junior Engineer, who deposed

5 as MW-1 on behalf of the Department has categorically

stated that the workman was engaged by the Department

on muster rolls as Mali in December, 1991 and he worked

up to 31.01.1993. He also stated that there was no break

from December, 1991 to January, 1993 during which the

workman was engaged. The Labour Court as per the

materials placed rightly found that the workman has

continuously worked from December 1991 to 31.01.1993.

It also found that the workman worked for 240 days with

the Department within 12 calendar months preceding his

date of termination i.e. 31.01.1993. It is useful to refer

the definition of "retrenchment" and "workman" in the Act

which reads thus:

"2 (oo) "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include......."

2 (s) "workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who

6 has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person... .........."

25F. Conditions precedent to retrenchment of workmen.

No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until-

(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;

(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months; and

(c) notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette."

It is not in dispute that the appellant is a "workman" as

defined under Section 2 (s) and "retrenchment" if any it

should be in accordance with Section 25F of the Act.

Admittedly, in the case on hand, the workman was not

given any notice or pay in lieu of notice or retrenchment

7 compensation at the time of his retrenchment. In view of

the same, the Labour Court has correctly concluded that

his termination is in contravention of the provisions of

Section 25 F of the Act. Though the Department has

relied on a circular, the Labour Court on going through

the same rightly concluded that the same is not applicable

to the case of the retrenchment.

11) In addition to the factual conclusion by the Labour

Court, namely, continuance for a period of 240 days in a

calendar year preceding his termination, the appellant has

also placed relevant materials to show that persons

similarly situated have already been reinstated and their

services have been regularized. It is his grievance that

appellant alone has been meted out with the hostile

discrimination by the Department. He also highlighted

that in respect of some of the workmen who were

appointed and terminated, after similar awards passed by

the Labour Court, the Management did not challenge the

8 same before the High Court by filing writ petitions. He

also pointed out that in some cases where a challenge was

made before the High Court by filing writ petitions

however, after dismissal of the writ petitions those persons

were reinstated. In fact, according to the appellant some

of them were even regularized. The details of other

identically situated persons are as follows:-

S.No. Name Labour High Court Supreme Court Present Court Status

1. Gurbax Singh Claim No writ petition No SLP filed Reinstated allowed filed on 19.06.2004.

Service regularized w.e.f.

01.07.2004

2. Mast Ram Claim Writ petition filed SLP filed by the Reinstated on allowed by respondents, respondents, 19.06.2004.

dismissed also dismissed. Service regularized 3. Rajesh Kumar Claim Writ petition filed SLP filed by the Reinstated. allowed by respondents, respondents, Service dismissed also dismissed. regularized. 4. Paramjit Claim Writ petition filed SLP filed by the Reinstated. Kumar allowed by respondents, respondents, Service dismissed also dismissed. regularized. 5. Ramesh Claim In 1st round Writ SLP filed by the Reinstated Kumar allowed petition filed by respondents, on (Petitioner) respondents, matter remitted 18.06.2004 dismissed back. but service Now petitioner not In 2nd round writ has filed the regularized. petition was present writ allowed. petition.

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12) The perusal of all these details clearly shows that the

appellant alone was singled out and discriminated. We

have already noted the specific finding of the Labour Court

that the appellant had fulfilled 240 days in a calendar

year before the order of termination. The appellant has

also highlighted that he is the sole bread earner of his

family and his family consists of his old mother, wife and

two minor sons and a minor daughter. The above-

mentioned chart also shows that identical awards passed

in the case of Mast Ram, Rajesh, Paramjit and Amarjit

was upheld by the High Court and the award in favour of

the appellant alone was quashed by the High Court in the

second round of litigation. Though, it was contended that

the initial appointment of the appellant was contrary to

the recruitment rules and constitutional scheme of

employment, admittedly, the said objection was not raised

by the Department either before the Labour Court or

before the High Court at the first instance. It was only for

1 the first time that they raised the said issue before the

High Court when the matter was remitted to it that too the

same was raised only during the arguments. In such

circumstances, the High Court ought not to have

interfered with the factual finding rendered by the Labour

Court and in view of the different treatment to other

similarly placed workmen the Department ought not to

have challenged the order of the Labour Court. In

addition to the above infirmities, the appellant has also

pointed out that one Gurbax Singh who was engaged

subsequent to the appellant on casual basis has

challenged his termination order, which was quashed by

the Labour Court; interestingly the Department did not

challenge the award of the Labour Court by filing writ

petition. It was also highlighted by the appellant that on

the basis of the award, Gurbax singh was not only taken

back in service but his services were regularized w.e.f.

01.07.2004.

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13) We are conscious of the fact that an appointment on

public post cannot be made in contravention of

recruitment rules and constitutional scheme of

employment. However, in view of the materials placed

before the Labour Court and in this Court, we are satisfied

that the said principle would not apply in the case on

hand. As rightly pointed out, the appellant has not

prayed for regularization but only for reinstatement with

continuity of service for which he is legally entitled to. It

is to be noted in the case of termination of casual

employee what is required to be seen is whether a

workman has completed 240 days in the preceding 12

months or not. If sufficient materials are shown that

workman has completed 240 days then his service cannot

be terminated without giving notice or compensation in

lieu of it in terms of Section 25F. The High Court failed to

appreciate that in the present case appellant has

completed 240 days in the preceding 12 months and no

1 notice or compensation in lieu of it was given to him, in

such circumstances his termination was illegal. All the

decisions relied on by the High Court are not applicable to

the case on hand more particularly, in view of the specific

factual finding by the Labour Court.

14) Under these circumstances, the impugned order of

the High Court dated 23.12.2008 passed in CWP No. 575

of 2004 is set aside. It is not in dispute that the

appellant-workman is continuing in service and learned

counsel representing him fairly stated that he is willing to

forego back-wages as awarded by the Labour court, the

same is recorded. Consequently, the civil appeal filed by

the workman is allowed to the extent mentioned above.

No costs.

.........................................J. ( P. SATHASIVAM )

..........................................J. (H.L. DATTU) NEW DELHI;

1 JANUARY 13, 2010.

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