General Manager (Mining) District Industries Center vs Balbir Chand and Others

Gurmeet Singh Sandhawalia, J.�The challenge, in the present writ petition, is to the award dated 22.7.2013 (Annexure P5) whereby the respondent-workman has been reinstated by the Labour Court, Patiala with continuity of service but no back wages were granted.

Perusal of the paper-book would go on to show that the demand notice dated 3.11.2004 (Annexure P2) was issued by the respondent-workman whereby he took a plea that he was appointed as a daily wager on 1.8.1987 with the petitioner department. It was alleged that he was doing various works including typing, maintaining diaries and dispatch etc. He worked as such at Hoshiarpur and Mohali in the office of the Mining Officer, Department of Industries. His services were terminated on 31.8.2000 and he, having completed 240 days, was entitled for the protection granted under section 25-F of the Industrial Disputes Act, 1947 (In short "the Act"). Accordingly, he sought reinstatement with continuity of service with full back wages. The factum of working of the petitioner in the office of the Mining Officer, Mohali was admitted in the reply filed to the demand notice (Annexure P3) and it was admitted that the workman had worked from 1.9.1996 continuously upto 31.8.2000 at the rates fixed by the Deputy Commissioner. He was only engaged on daily wage basis as a Labourer. His services, no longer being required, had been dispensed with and the plea taken was that the department was not an industry.

On the matter being referred to the Labour Court, in the written statement, even the period of work from 1.6.1987 at Hoshiarpur onwards was also admitted. It was submitted that on superannuation of one Rattan Singh, Mining Guard on 31.8.2000, one Devi Dass was adjusted and services of the workman were dispensed with as sanction was not granted by the Government for daily wage workers. Before the Labour Court, the plea was also taken by the petitioner that as per the policy dated 23.1.2001 (Annexure P1), the workers, who had completed three years of service, were to be regularized and Devi Dass had been wrongly regularized whereas the respondent''s services had been terminated inspite of the fact that the said person did not have continuity in service.

The workman appeared as his own witness in support of his claim, whereas the department examined Bahadur Singh, Junior Assistant as MW.1. It was noticed that Devi Dass was engaged by the Mining Officer, Pathankot in June, 1981, whereas Balbir Chand was engaged in June, 1987. Accordingly, a finding was recorded by the Labour Court that there was no denial that the workman had worked for 240 days immediately before the date of his termination and the contention of the department that there was no provision of issuing notice, charge sheet or compensation to the daily wager while terminating his services, was rightly rejected as it would amount to violation of section 25-F of the Act. The Labour Court has referred to the judgment of the Apex Court in L. Robert D''souza Vs. Executive Engineer, Southern Railway and Another, and the recent judgment in Devinder Singh Vs. Municipal Council, Sanaur, to hold that section 25-F of the Act being couched in a negative manner, it was mandatory to comply with the same.

The admission of MW.1 Bahadur Singh, Junior Assistant was noticed that the compliance had not been made and accordingly, reinstatement was directed.

Counsel for the State has submitted that by ordering reinstatement, the Labour Court has created another post and as such, it is not permissible, keeping in view the judgment of the Apex Court in State of Karnataka and others v. Uma Devi and others 2006 (109) FLR 826 (SC).

The said argument cannot be accepted. The fact of reinstatement of the workman does not amount to his regularization on the post. This specific plea, by placing reliance upon the instructions dated 23.1.2001 (Annexure P1), had not been accepted by the Labour Court and only reinstatement has been granted which would necessarily mean the same status and would not amount to permanency in favour of the workman. The Apex Court in Anoop Sharma Vs. Executive Engineer, Public Health Division No. 1 Panipat (Haryana), held that the observations made in Uma Devi''s case (supra) are not applicable to the disputes arising out of the awards passed under the Act. The relevant paragraph reads as under:--

"27. The judgment of the Constitution Bench in Secretary, State of Karnataka v. Uma Devi (supra) and other decisions in which this Court considered the right of casual, daily wage, temporary and ad hoc employees to be regularised/continued in service or paid salary in the regular time scale, appears to have unduly influenced the High Court''s approach in dealing with the appellant''s challenge to the award of the Labour Court. In our view, none of those judgments has any bearing on the interpretation of section 25-F of the Act and employer''s obligation to comply with the conditions enumerated in that section."

Reference can also be made to Ramesh Kumar Vs. State of Haryana, wherein it was held that reinstatement means only put back the workman in the same status as the one he was having earlier. The relevant paragraph reads as under:

"17. 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."

In such circumstances, it is settled that the department can always dispense with the services of the employee by following the proper procedure. It was required to follow section 25-F of the Act in the first instance. The workman had worked for 13 long years and in such circumstances, the Labour Court was well justified in directing the reinstatement, as the same would be on the same status and would not mean that the workman has become regular. The back wages having been denied and the interest of the department has also been looked after. Accordingly, no fault can be found in the well reasoned award passed by the Labour Court.

In view of above, the writ petition, being without any merit, stands dismissed, in limine.