Allowed

Jagir Singh v. the Presiding Officer & Anr.

Punjab & Haryana HC9 Aug 2012CWP/18062/2009

Case brief

AI extract

What is this about?

Single judge order allowing two writ petitions challenging arbitrator awards that terminated employment of daily wagers without retrenchment compensation. Court directed reinstatement with continuity and back wages.

What did the court decide?

Set aside impugned awards. Directed reinstatement of petitioners with continuity of service and payment of wages from date of award to actual reinstatement.

Jagir Singh Vs the Presiding… — Pension and Retirement Benefits | Punjab & Haryana HC (2012)

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Civil Writ Petition No. 18062 of 2009

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(1)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Date of decision : 9.8.2012

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1. Civil Writ Petition No. 18062 of 2009 (O&M)

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Jagir Singh ... Petitioner

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The Presiding officer and another ... Respondents

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2. Civil Writ Petition No. 18063 of 2009 (O&M)

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Jeet Singh ... Petitioner

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The Presiding officer and another ... Respondents

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Coram: Hon'ble Mr. Justice Rajesh Bindal

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Present: Mr. Jasmeet Singh Bedi, Advocate for the petitioners.

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Mr. Roopak Bansal, Additional Advocate General, Haryana, for respondent no. 2.

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Rajesh Bindal, J.

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This order will dispose of two writ petitions bearing CWP Nos. 18062 and 18063 of 2009, as common questions of law and facts are involved therein.

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Challenge in the present petitions is to the awards dated 26.9.2008, wherein respondent No.1 answered the references against the petitioners.

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Facts of CWP No. 18062/2012

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Petitioner- Jagir Singh was appointed as a daily wager with respondent No. 2 on 5.4.1984. He worked as such under different foresters/guards in different beats in the department continuously till 10.6.2004. After he had put in more than 20 years of service, his services

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Civil Writ Petition No. 18062 of 2009

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(2)

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were terminated in violation of Section 25-F of the Industrial Disputes Act, 1947 (for short “the Act”) as no retrenchment compensation was paid to him. Aggrieved by his termination, he raised a demand notice. The dispute was referred to respondent No.1 for adjudication. Respondent No.1 vide his award dated 26.09.2008 answered the reference against the petitioner.

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Facts of CWP No. 18063/2012

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Petitioner- Jeet Singh was appointed as a daily wager with respondent No. 2 on 1.4.1986. He worked as such under different foresters/guards in different beats in the department continuously till 10.5.2004. After he had put in more than 18 years of service, he was removed from service in violation of Section 25-F of the Act as no retrenchment compensation was paid to him. Aggrieved by his termination, he raised a demand notice. The dispute was referred to respondent No.1 for adjudication. Respondent No.1 vide his award dated 26.09.2008 answered the reference against the petitioner.

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The petitioners have impugned the aforesaid awards by filing the present writ petitions.

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Learned counsel for the petitioners submitted that the petitioners worked as such under different foresters/guards in different beats in the Department continuously, whereupon after they had put in more than 18-20 years of service, their services were unceremoniously terminated. The respondent-management retained employees junior to them in service and further employed fresh persons after their termination in utter violation of Section 25-F, G, H of the Act. He further contended that respondent No.1 vide his awards dated 26.09.2008 decided the references against the petitioners and in favour of respondent no. 2 thereby dismissing their claim, completely on flimsy grounds even after giving a categoric finding to the effect that the petitioners had completed 240 days of service in the preceding 12 months from the date of their termination. Once it was proved that the petitioners had completed 240 days of service during the preceding 12 months, resultant termination in violation of Section 25-F of the Act should have been held to be bad with consequential relief of re-instatement

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Civil Writ Petition No. 18062 of 2009

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(3)

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with continuity of service and full back wages. He further submitted that the learned court below failed to appreciate that in the present case it was not the pleaded case of the respondent-management that the petitioners were not at all entitled for re-instatement with continuity in service and back wages because they were daily wagers and were not appointed as per the service rules. No issue in this regard was framed by the court.

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Learned counsel for the petitioners further placed reliance upon the judgments of Hon’ble the Supreme Court in Ramesh Kumar vs State of Haryana , 2010 (1) SCT 675; Anoop Sharma vs Executive Engineer Public Health Division No.1, Panipat (Haryana) , 2010 (3) SCT 319; Harjinder Singh vs Punjab State Warehousing Corporation 2010 (3) SCC 192; and Devinder Singh vs Municipal Council, Sanaur , 2011 (6) SCC 584.

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On the other hand, learned counsel for respondent no. 2, submitted that the petitioners had not worked for 240 days or more in twelve preceding months before their alleged termination. In fact, their services were never terminated by the respondent-management on 10.6.2004 and 10.5.2004 respectively, but they had left the job as per their own will in March, 2004, hence, the question of violation of Section 25-F of the Act does not arise at all. He further submitted that the petitioners are not entitled for any relief being daily wagers, as they were not appointed as per the service rules against the regular sanctioned posts, thus, relief of reinstatement with continuity and back wages should not be granted to them.

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Heard learned counsel for the parties and perused the paper book.

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Hon’ble the Supreme Court in Ramesh Kumar' s case (supra) held that if sufficient material is shown that workman has completed 240 days of service, his service cannot be terminated without giving notice or payment of compensation in lieu thereof in terms of Section 25-F of the Act.

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Further in Anoop Sharma’s case (supra), Hon’ble the Supreme Court has discussed the scope of term continuous service under Section 25B of the Act, which when read along with Section 25-F (a) and (b) of the Act mandates giving of one month’s notice or pay in lieu thereof and

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Civil Writ Petition No. 18062 of 2009

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(4)

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otherwise than by way of punishment or in accordance with express terms incorporated in the order of appointment. If a workman is retrenched by an oral order or communication or is simply asked not to come for duty, the employer will be required to lead tangible and substantive evidence to prove compliance of Clauses (a) and (b) of Section 25-F of the Act. Relevant paragraphs of the aforesaid judgment are reproduced hereunder:-

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“13. An analysis of the above reproduced provisions shows that no workman employed in any industry who has been in continuous service for not less than one year under an employer can be retrenched by that employer until the conditions enumerated in Clauses (a) and (b) of Section 25-F of the Act are satisfied. In terms of Clause (a), the employer is required to give to the workman one month’s notice in writing indicating the reasons for retrenchment or pay him wages in lieu of the notice. Clause (b) casts a duty upon the employer to pay to the workman at the time of retrenchment, compensation equivalent to fifteen days’ average pay for every completed year of continuous service or any part thereof in excess of six months. This Court has repeatedly held that Section 25-F (a) and (b) of the Act is mandatory and non-compliance thereof renders the retrenchment of an employee nullity. This Court has used different expressions for describing the consequence of terminating a workman’s service/employment/engagement by way of retrenchment without complying with the mandate of Section 25-F of the Act. Sometimes it has been termed as ab initio void, sometimes as illegal per se, sometimes as nullity and sometimes as non est. Leaving aside the legal semantics, we have no hesitation to hold that termination of service of an employee by way of retrenchment without complying with the requirement of giving one month’s notice or pay in lieu thereof and compensation in terms of Section 25-F (a) and (b) has the effect of rendering the action of the employer as nullity and the employee is entitled to continue in employment as if his

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Civil Writ Petition No. 18062 of 2009

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(5)

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xxx xxx

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service was not terminated.

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xxx

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In State Bank of India v. N. Sundara Money (supra), the Court emphasised that the workman cannot be retrenched without payment, at the time of retrenchment, compensation computed in terms of Section 25-F (b).

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The legal position has been beautifully summed up in Pramod Jha v. State of Bihar (supra) in the following words:

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“The underlying object of Section 25-F is twofold. Firstly, a retrenched employee must have one month’s time available at his disposal to search for alternate employment, and so, either he should be given one month’s notice of the proposed termination or he should be paid wages for the notice period. Secondly, the workman must be paid retrenchment compensation at the time of retrenchment, or before, so that once having been retrenched there should be no need for him to go to his employer demanding retrenchment compensation and the compensation so paid is not only a reward earned for his previous services rendered to the employer but is also a sustenance to the worker for the period which may be spent in searching for another employment. Section 25-F nowhere speaks of the retrenchment compensation being paid or tendered to the worker along with one month’s notice; on the contrary, clause (b) expressly provides for the payment of compensation being made at the time of retrenchment and by implication it would be permissible to pay the same before retrenchment. Payment or tender of compensation after the time when the retrenchment has taken effect would vitiate the retrenchment and non-compliance with the mandatory provision which has a beneficial purpose and a public policy behind it would result in nullifying the retrenchment”

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Civil Writ Petition No. 18062 of 2009

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(6)

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In Harjinder Singh' s case (supra), Hon’ble the Supreme Court has held 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 globalisation 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 workmanemployee 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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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

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Civil Writ Petition No. 18062 of 2009

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(7)

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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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Hon’ble the Supreme Court in Devinder Singh’s case (supra) held that provisions of Section 25-F, (a), (b) are mandatory and termination of service of a workman which amounts to retrenchment within the meaning of Section 2 (oo) of the Act without giving one month’s notice or pay in lieu thereof and retrenchment compensation is null and void. Further it has held that the appellant shall be entitled to reinstatement with continuity in service and wages for the period between the date of award and the date of actual reinstatement. The relevant paragraphs of the aforesaid judgment are reproduced hereunder:-

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“20. This Court has repeatedly held that the provisions contained in Section 25-F (a) and (b) are mandatory and termination of the service of a workman which amounts to retrenchment within the meaning of Section 2 (oo) without giving one month’s notice or pay in lieu thereof and retrenchment compensation is null and void/ illegal/ inoperative.

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xx xx xx

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In the result, the appeal is allowed. The impugned order is set aside and the award passed by the Labour Court for reinstatement of the appellant is restored. If the respondent shall reinstate the appellant within a period of four weeks from today, the appellant shall also be entitled to wages for the period between the date of award and the date of actual reinstatement. The respondent shall pay the arrears to the appellant within period of three months from the date of receipt / production of the copy of this order.”

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On due consideration of the matter, I am not inclined to accept submissions made by the learned counsel for respondent no. 2. There was no plea raised by it that the employment of the petitioners was not in

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Civil Writ Petition No. 18062 of 2009

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(8)

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accordance with rules or norms of public appointment. In the absence of any material, which was required to be pleaded and set up by respondent no. 2 in the first instance, the learned court below could not inferentially come to the conclusion that the said appointments were back door entries and not in accordance with law. Such a finding has to be negated, as it is unsustainable in law, in view of the categorical observations made by Hon’ble the Supreme Court in the above mentioned decisions.

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An employer cannot be permitted to exploit a human being for a number of years, violate the law and show the workman exit door without just cause or legal justification. Such workman must have the protection of his life, liberty and right to exist in some comfort by securing adequate means of livelihood, protected under Article 21 of the Constitution of India. The workmen in the aforesaid cases were directed to be reinstated.

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In the present case, the facts reveal that the petitioners had been in continuous employment for the last 18-20 years, when their services were terminated. The aforesaid decisions are fully applicable to the facts and circumstances of the present case.

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For the reasons recorded above, the present petitions are allowed. The impugned awards dated 26.09.2008 are set aside. The respondent-management is directed to reinstate the petitioners with continuity of service and to pay wages for the period between the date of award and the date of actual reinstatement.

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9.8.2012 vs

Jagir Singh v. the Presiding Officer & Anr.

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Jagir Singh v. the Presiding Officer & Anr.

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