Executive Engineer, T.R.W. Workshop vs Presiding Officer, Labour Court and Another

Hemant Gupta, J.—The challenge in the present writ petition is to the order dated 4th September, 2007 (Annexure P-3), whereby the Respondent-workman was ordered to be reinstated with continuity of service and full back wages.

It is the case of the Petitioner that the Respondent-workman was appointed as a part time sweeper on 13th September, 1994. He continued to work till 25th July, 2001 when, as per the workman, his services were terminated in violation of the provisions of Section 25F of the Industrial Disputes Act, 1947 (for short "the Act").

In reply, it was the stand of the Management that the workman worked from 26th July, 2000 to 25th July, 2001 as part time sweeper in TRW workshop, Mathana and that the workshop where the workman was engaged has since been closed down and, therefore, there was no scope for any part time sweeper. Consequently, the services of the workman were terminated being junior most in the category.

Learned Labour Court found that the workman continuously worked with the Management, though with breaks for more than 240 days and, thus, the termination of his services without giving him any notice is in violation of the provisions of Section 25-F of the Act. In view of the said finding, the Labour Court answered the award in favour of the workman and set aside the order of termination.

Counsel for the Petitioner has relied upon a Full Bench judgment of this Court rendered in Gobind v. The Presiding Officer, Labour Court, Jalandhar and Anr. Civil Writ Petition No. 4660 of 1999 decided on 22nd May, 2008, wherein it has been held that a part time employee is not entitled to claim compensation contemplated u/s 25-F of the Act. In view of the aforesaid Judgment, the finding recorded by the Labour Court that the retrenchment is in violation of the provisions of Section 25-F of the Act is not sustainable.

Hon''ble Supreme Court in BSNL v. Mahesh Chand (2008) 3 SCC 744 was dealing with the case of a part time employee. It has been held therein that the engagement on part time basis, depending upon the need and requirement for a period of 2-3 years periodically, will not entitle the workman for reinstatement with continuity of service. Even if the workman has completed 240 days, still engagement of the workman was not against a sanctioned post nor made by following the procedure prescribed for public employment i.e. by advertising and giving an opportunity to all the eligible candidates to apply and consideration for appointment to the post.

Learned Counsel for the Petitioners has contended that even if the workman has completed 240 days in a calendar year, still the employment in question was a public employment and the workman was employed without following any service rules and regulations and giving an opprtunity to all the eligible candidates to apply and be considered for appointment. Reliance has also been placed on a decision of the Supreme Court in case reported as Mahboob Deepak Vs. Nagar Panchayat Gajraula and Another, wherein it has been held that even if the workman has completed 240 days of service, he is not entitled to be reinstated as the appointment is de hors the rules. It has been held that ads hoc or daily wager employees are not entitled to invoke Article 14 and 16 of the Constitution as such entry in Government service is back door entry. A Division Bench of this Court in CWP No. 13533 of 2006 titled Executive Engineer, Provincial Division, PWD B&R Branch, Jind v. Om Parkash and Anr., decided on 26th July, 2007 has held that an employee on daily wager is not entitled to be appointed/regularization in public appointment. The Court held to the following effect:

We have considered this matter in Civil Writ Petition No. 18587 of 2004 Tek hand v. The Presiding Officer and others, decided on 20th July, 2007, wherein after referring to the judgments of the Hon''ble Supreme Court in S.M. Nilajkar and Others Vs. Telecom, District Manager, Karnataka, and Municipal Council, Samrala v. Raj Kumar 2006 (3) SCC 81, it was observed that terminated of services of daily wager will not amount to retrenchment and will be covered by except (bb) to Section 2 (oo) of the Act, It was further observed after reffereing to judgments of the Hon''ble Supreme Court in Mahesh Mahto Vs. State of Bihar, , Manager (Now Regional Director) R.B.I. Vs. Gopinath Sharma and Another, and Gangadhar Pillai Vs. Siemens Ltd., that an employee employed as a daily wager could not be reinstated/regularization in public employment which is governed by rules and regulations.

(8) In The Executive Engineer, PWD B&R Provincial Division, Fatehabad v. Bhajan Singh and Anr. CWP No. 2270 of 2007 decided on 12th September, 2007, this Court held to the following effect:

The law has undergone a sea change. The right of a person such as Respondent, has been considered by the Hon''ble Supreme Court in Municipal Council, Samrala v. Raj Kumar (2006) 3 SCC 81, Himanshu Kumar Vidyarthi and Others Vs. State of Bihar and Others, , Gangadhar Pillai Vs. Siemens Ltd., , State of M.P. and Others Vs. Lalit Kumar Verma, .

Having regard to the given judgments rendered by the Hon''ble Supreme Court of India, we find that the entry in service of the Respondent-workman was illegal and, therefore, he has no right to be reinstated. Such a decision would be clearly contrary to the law laid down by the Hon''ble Supreme Court of India, in the judgments referred to above.

In Sector Superintendent-1, Government Livestock Farm, Hisar v. Om Parkash, CWP No. 2396 of 2006 decided on 14th November, 2007 this Court held to the following effect:

It is not in dispute that Respondent No. 1 took entry in service in public employment in total disregard to the statutory provisions and the rules. Since the entry in service of Respondent No. 1 itself was illegal, therefore, as per the law laid down by the Hon''ble Supreme Court of India in Municipal Council, Samrala v. Raj Kumar (2006) 3 SCC 81, Gangadhar Pillai Vs. Siemens Ltd., , Indian Drugs and Pharmaceuticals Ltd. Vs. Workman, Indian Drugs and Pharmaceuticals Ltd., , Manager (Now Regional Director) R.B.I. Vs. Gopinath Sharma and Another, and U.P. Power Corporation Ltd. and Another Vs. Bijli Mazdoor Sangh and Others, , he is not entitled to reinstatement. In such circumstances, the case would fall u/s 2 (oo) of the Act and the provisions of Section 25-F of the Act would not be attracted.

The said view is the consistent view of this Court in numerous other judgments.

In view of the aforesaid judgments, we are of the opinion that the award of the Labour Court, Annexure P-3, reinstating the workman with continuity of service and back wages is factually illegal and unwarranted.

Consequently, the present writ petition is allowed and the impugned award, Annexure P-3, is set aside.