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Judgment
Augustine George Masih, J.—Through this writ petition, the challenge has been put to the Award dated 10.09.2008 (Annexure-P-6), passed by the Industrial Tribunal-cum-Labour Court-II, Faridabad, (hereinafter referred to "the Labour Court")/respondent No. 1, wherein the reference had been answered against the Workman, holding him not entitled to any benefit under the Industrial Disputes Act, 1947, (hereinafter referred to as "the Act").
Counsel for the petitioner/Workman (hereinafter referred to as "the Workman") contends that the Workman was appointed on 01.12.1993 as a Sweeper on daily wage basis with respondents/Management (hereinafter referred to as "the Management"). He continued as such with the Management, when his service was terminated on 22.08.1996. No notice or retrenchment compensation, as mandated under the provisions of the Act, were paid to the Workman at the time of termination of his services. However, payment of compensation amounting to Rs. 2,950/- was made on 14.09.1996, which order is placed on record as Annexure-P-7. As per the break-up, the Workman was granted 30 days salary in lieu of notice and compensation of an amount of Rs. 1,475/- was given, which again was for a period of 30 days. She contends that as per provisions of Section 25-F(b) of the Act, the Workman was entitled to compensation at the time of retrenchment, which should have been equivalent to 15 days average pay for every completed year of continuous service or any part thereof in excess of six months. It is an admitted position on behalf of the Management that the Workman had worked with it continuously for two years and eight months. The compensation, therefore, to which the Workman was entitled to, was 45 days average pay drawn by him. It is an admitted position that the Management had only paid 30 days compensation which, therefore, falls short of the required compensation under the Act. In any case, the said compensation was required to be paid on or before the date of termination of his service, i.e., 22.08.1996 which, as a matter of fact, was not done, but the payment was admittedly made on 14.09.1996. On these submissions, she prays that the termination of services of the Workman was not in consonance with the provisions of the Act and, therefore, he is entitled to reinstatement in service with all consequential benefits. The Award, passed by the Labour Court, thus cannot be sustained and deserves to be set aside.
On the other hand, counsel for the Management submits that the services of the Workman were terminated because of abolition of the post. It was necessitated because of imposition of prohibition due to the reduction of the work and due to non receipt of sanction for extension of daily wagers, where the Workman was working, the Management had no option but to dispense with his services. He, however, has not been able to rebut the contention, as has been raised by counsel for the Workman, with regard to short fall in the amount of compensation at the time of termination of services of the Workman. His contention, now, is that the Work being not available and the post having been abolished and, thereafter no persons who were retrenched alongwith the Workman or others have been appointed, the Workman cannot be put back in service at Hermitage Hut, Suraj Kund, Faridabad, where he was working. He accordingly states that the Award deserves to be upheld.
I have heard counsel for the parties and have gone through the records of the case.
The admitted position is that the Workman was appointed on 01.12.1993 as a Sweeper on daily wage basis. He continued as such with the Management till 22.08.1996, when his service was terminated because of abolition of the post, which was brought about because of imposition of prohibition in the State of Haryana. The pleadings and the evidence show that after termination of services of the Workman, no other persons, who were either working with him and whose services were retrenched or any fresh appointment was made. It is an admitted position that the retrenchment compensation was paid to the Workman on 14.09.1996 and that too of 30 days wages in lieu of notice period and 30 days wages in lieu of retrenchment compensation. The Workman had worked with the Management for two years and eight months and thus was entitled to retrenchment compensation of 45 days, as mandated u/s 25-F(b) of the Act. The amount having not been paid to the Workman for 45 days period and that too at the time of retrenchment, the termination of services of the Workman cannot be said to be in accordance with the provisions of the Act.
That being so, the question now which needs to be considered and decided by this Court is whether the Workman would be entitled to reinstatement in service with all consequential benefits or compensation in lieu of reinstatement? It is the categoric stand of the Management that the termination of services of the Workman was brought about because of abolition of the post, which was necessitated because of the imposition of prohibition in the State of Haryana. None of the workmen, who was retrenched alongwith the Workman have been taken back in service nor any fresh appointments have been made in the Hermitage Hut, Suraj Kund, Faridabad. Nothing has been brought on record, although, efforts were made on behalf of the Workman to prove that some appointments have been made after termination of his service and some juniors have been retained in service, which would suggest that the provisions as contained under the Act, i.e., Sections 25-G and H of the Act, have been violated. That being the position, the abolition of the post would be an impediment in putting back the Workman in service. However, in the light of the fact that the termination of service of the Workman was not in consonance with the provisions as contained under the Act, the Workman would be entitled to compensation in view of his illegal termination. The Workman had worked with the Management for two years and eight months and had been pursuing his claim firstly before the Labour court and then in this Court. Keeping in view the said position, the Workman is held entitled to compensation of Rs. 40,000/-.
In view of the above, the present writ petition is allowed. The impugned Award dated 10.09.2008 (Annexure-P-6), passed by the Labour Court is hereby set aside. The Workman is held entitled to compensation of Rs. 40,000/- to be paid by the Management within of two months from the date of receipt of certified copy of this Order.
At this stage, counsel for the Workman submits that the reason for which the post was abolished, i.e., imposition of prohibition in the State of Haryana is no more available and the tourism is flourishing and the work with the Management is also now available. The Workman would move a representation to the Management, who may consider the request of the Workman for appointment on daily wage basis in accordance with law.
Counsel for the Management has no objection and states that if such a representation is moved by the Workman, the same shall be considered in accordance with law.