Allowed

Damyanti v. P.O., Indl. Tribunal, Cum L.C.

Punjab & Haryana HC28 Mar 2012CWP/15709/2011

Case brief

AI extract

What is this about?

The High Court allowed a writ petition filed by a gardener seeking reinstatement after illegal termination. The court distinguished Uma Devi and, relying on Harjinder Singh and Anoop Sharma, quashed the Labour Court award. The petitioner was granted reinstatement with full back wages and continuity of service.

What did the court decide?

The impugned award of the Labour Court quashed; petitioner reinstated with full back wages and continuity of service; reference answered in favor of the workman.

Damyanti Vs P.O., Indl. Tribunal… — Labour and Industrial Disputes | Punjab & Haryana HC (2012)

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CWP No. 15709 of 2011 1

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IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH

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DATE OF DECISION : 28.3.2012

Smt.Damyanti

...Petitioner

Versus

Presiding Officer Industrial Tribunal-cum-Labour Court, Panipat and another

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...Respondents

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CORAM: HON'BLE MR.JUSTICE RAJIV NARAIN RAINA

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PRESENT: Ms.Abha Rathore, Advocate for the petitioner

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Mr.K.C.Bhatia, Addl.A.G., Haryana for respondents

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Notes: 1.Whether to be referred to the reporters or not?

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2.Whether the judgment should be reported in the Digest?

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RAJIV NARAIN RAINA, J.

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This petition filed by the workman under Article 226/227 of the constitution is directed against the award dated 14.1.2010 passed by the Labour Court, Panipat answering the reference under Section 10(1)(c) of the Industrial Disputes Act, 1947 (for short “the Act”) against the workman and in favour of the Management.

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The brief facts of the case are that the petitioner was appointed as a Gardener with the respondent no.2-Management in 1986 and served upto 27.3.2001. The petitioner pleads that she and other gardeners working in

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CWP No. 15709 of 2011 2

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different Districts had raised demands for regularization of their services. She too had voiced her concern. Instead of regularizing her services, she was dealt with a termination order on 27.3.2001. On the matter having reached the Labour Court, the Management took its defence that the employer Forest department was not an industry; the claimant was a seasonal worker on daily wages; that she had not completed 240 days in the preceding calendar year from the date of termination. The Labour Court returned a finding that the petitioner had completed 240 days of continuous service within the meaning of Section 25-B of the Act. The Labour Court thereafter veered and derailed the matter by observing that the petitioner was admittedly engaged as a daily wager; she was not engaged by the respondent-Management as per norms and procedure as laid down for making such appointment. Several decisions were relied upon including the one rendered by the Constitution Bench in the case of Secretary, State of Karnataka and others vs. Uma Devi and others, 2006(4) SCC 1 to hold that the petitioner has no right to claim the post, and thus she has no right to reinstatement, despite non-compliance of the mandatory provisions of Section 25-F of the Act.

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I have heard learned counsel for the parties and perused the record. This Court finds that the issue before the Labour Court as referred to it was with regard to the legality and validity of the termination of the services of the petitioner. The workman did not claim regularization either before the Labour Court or before this Court. The workman sought reinstatement. In case of reinstatement, she would obviously go back to the same position as held by her on the date of termination.

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CWP No. 15709 of 2011 3

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A sea change has been brought about by the Hon’ble Supreme Court

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in its landmark judgment in the case of Harjinder Singh vs. Punjab State Warehousing Corporation, (2010) 3 Supreme Court Cases 192 as to the effect of violation of Section 25-G of the Act. In the aforesaid judgment, the Hon’ble Supreme Court has observed as under:-

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“30.Of late, there has been a visible shift in the courts approach in dealing with the cases involving the interpretation of social welfare legislations. The attractive mantras of globalization and liberalisation are fast becoming the raison d'etre of the judicial process and an impression has been created that the constitutional courts are no longer sympathetic towards the plight of industrial and unorganized workers. In large number of cases like the present one, relief has been denied to the employees falling in the category of workmen, who are illegally retrenched from service by creating by-lanes and side-lanes in the jurisprudence developed by this Court in three decades. The stock plea raised by the public employer in such cases is that the initial employment/engagement of the workman-employee was contrary to some or the other statute or that reinstatement of the workman will put unbearable burden on the financial health of the establishment. The courts have readily accepted such plea unmindful of the accountability of the wrong doer and indirectly punished the tiny beneficiary of the wrong ignoring the fact that he may have continued in the employment for years together and that micro wages earned by him may be the only source of his livelihood.

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31. It need no emphasis that if a man is deprived of his livelihood, he is deprived of all his fundamental and constitutional rights and for him the goal of social and economic justice, equality of status and of opportunity, the freedoms enshrined in the Constitution remain illusory. Therefore, the approach of the courts must be compatible with the constitutional philosophy of which the Directive Principles of State Policy constitute an integral part and justice due to the workman should not be denied by entertaining the specious and untenable grounds put forward by the employer - public or private.”

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Further in the case of Anoop Sharma Vs Executive Engineer Public

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Health Division No.1, Panipat, Haryana; 2000(5) SCC 497, the Hon’ble

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Supreme Court considered the effect of violation of Section 25-F of the Act, referred to several earlier judgments and held the termination of service of

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workman without complying with the mandatory provisions contained in Section 25-F(a) & (b) of the Act should ordinarily result in reinstatement. Learned counsel for the petitioner relied on yet another decision of the Hon’ble Supreme Court on the same point to hammer her case for reinstatement of her client i.e. the decision rendered in the case of Devinder Singh vs. Municipal Council, Sanaur (Appeal (Civil) No.3190 of 2011 decided on 11.4.2011. This judgment continues the thread of judicial thought propounded in Harjinder Singh’s case supra. Paragraphs 13 and 14 of the said judgment have been pressed into service which are quoted as under:-

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“13. The source of employment, the method of recruitment, the terms and conditions of employment/contract of service, the quantum of wages/pay and the mode of payment are not at all relevant for deciding whether or not a person is a workman within the meaning of Section 2(s) of the Act.

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14. It is apposite to observe that the definition of workman also does not make any distinction between full time and part time employee or a person appointed on contract basis. There is nothing in the plain language of Section 2(s) from which it can be inferred that only a person employed on regular basis or a person employed for doing whole time job is a workman and the one employed on temporary, part time or contract basis on fixed wages or as a casual employee or for doing duty for fixed hours is not a workman.”

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A daily wager or seasonal worker too is a workman with industrial rights. No rule was shown to me as to how seasonal workers or daily wagers are recruited. It is inherent that employment in far flung places where the forest department has ongoing works to employ locally available labour. It is no answer that in such employment opportunity there must be public advertisements to satisfy the tests of Article 14 & 16 of the Constitution. In fact it may violate local labour rights to introduce outsiders for menial,

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CWP No. 15709 of 2011 5

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unskilled or semi skilled daily wage work in the hinterland. In this context, I think that Articles 14 & 16 cannot be stretched beyond breaking point for the Sate to contend, as unfortunately it does in routine in such cases, that the appointment is de hors the rule. I ask which rule is violated after exploiting a low paid worker for 15 years and then citing rule of appointment of seasonal workers on daily wages and contending that the Forest Department is not an industry. This is a matter of shame for the forest department to ponder over.

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In view of the current legal position flowing from the judgments in the cases of Harjinder Singh (supra), Anoop Sharma (supra) and Devinder Singh (supra), I would have no hesitation in quashing the award dated 14.1.2010 ( P-1). Consequently, this petition is allowed and the impugned award of the Labour Court is quashed. The reference stands answered in favour of the workman. The petitioner would stand reinstated in service with full back-wages and continuity of service as seasonal daily wager. Let compliance of this order be made without delay. Arrears of back wages be calculated and paid within 30 days of supply of certified copy of this order through the hands of the petitioner as well. In case there is an extant policy of regularization authorized by the State Government then the case of the petitioner may also be considered accordingly to save multiplicity of proceedings.

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(RAJIV NARAIN RAINA) JUDGE

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28.3.2012 MFK

Damyanti v. P.O., Indl. Tribunal, Cum L.C.

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Damyanti v. P.O., Indl. Tribunal, Cum L.C.

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