Mahboob Khan vs The Presiding Officer, Labour Court Ambala and Others

Rajiv Narain Raina, J.—The petitioner served as a daily wager from 1995 to 2003 as Timber Watcher in the Forest Department in Haryana. His services were terminated on 30.9.2003 without complying with the mandatory provisions of the Industrial Disputes Act, 1947 (For short ''the Act). No notice was served, no reasons were assigned in writing. He raised an industrial dispute by serving a demand notice on the management, which led to reference No. 238 of 2005. The learned Labour Court by its award dated 24.07.2008 rejected the reference holding that the provisions of the Act are not applicable in the case as the workman has failed to prove that he had put in 240 days of continuous service in the preceding 12 months prior to the date of termination with reference to which calculation is to be made in terms of Section 25B of the Act. Aggrieved by the award the petitioner on an earlier occasion approached this Court through CWP No. 21670 of 2008. This Court set aside the award on 18.8.2009 finding prima facie that persons junior to the workman in a same category had been retained in service and, therefore, the matter was remanded to the learned Labour Court for fresh decision. The entire case, however, was not remitted to again traverse all issues and the specific direction was for the learned Labour Court to examine whether persons junior to petitioner were retained in service. In this manner, the question of 240 days was upheld and the previous award was sustained to that extent.

On remand, the learned Labour Court by a fresh award has held that Vakil Singh, the alleged junior, was appointed on 16.08.1998, whereas the petitioner was appointed on 01.01.1998 and therefore remained junior to him.

It is the submission of Mr. J.S. Maanipur appearing for the petitioner that the learned Labour Court has travelled beyond the remand directions and has rejected the case of the petitioner holding that his appointment itself was in violation of Articles 14 & 16 of the Constitution of India and his client is not entitled to any relief whatsoever.

In the written statement filed before the learned Labour Court the respondent-Forest Department did not plead that the petitioner''s engagement as Timber Watchman was contrary to rules and that he was a back door entry appointed in violation of the Constitutional scheme of making public appointments.

The learned Labour Court has noticed the stand of the department that Vakil Singh was retained by the management in the wake of a stay order granted by this Court against his termination which fact has not been rebutted or challenged. Having said this, the learned Labour Court in paragraph 17 of the award has confined the controversy which remains to be adjudicated to whether retention of a junior will confer any right on a worker to be reinstated or not.

The learned Labour Court in paragraph 18 of the award finds from a reading of the pleadings that the workman was appointed on a public post de hors recruitment rules and, therefore, retention of a junior will not confer any right on the workman to be reinstated as the illegality is a continuing one inasmuch as engaging a daily wage worker would only mean perpetuating an illegality. I have closely read the pleadings and statements of the workman and I do not find from the stand of the management before the learned Labour Court that the workman was appointed on a public post contrary to recruitment rules. It is a mystery from where this concept based on pleaded fact has been imported by the learned Labour Court to deny relief.

The learned Labour Court has relied upon Jaipur Development Authority Vs. Ram Sahai and Another, to conclude that even in a case of breach of provisions of Sections 25-G and H of the Act the workman cannot be ordered to be reinstated automatically. All this may be very true while dealing with public posts but a daily wager does not ipso facto hold a public post, nor was this issue raised by the management before the learned Labour Court.

Heard learned counsel for the parties.

Mr. Maanipur appears to be correct in his submissions that the remand directions were confined to the examination of retention of junior and of its effect. Findings relating to continuous service of one year equalling 240 days were confirmed by the learned single judge of this court in the previous round of litigation. The reason used by the learned Labour Court to discard presence of Vakil Singh as a junior is that he was retained by the Management under an interim stay order granted by this Court against his termination. This Court in CWP No. 21670 of 2008 has specifically held that no specific focus was made on how the conditions of three persons who were said to have been retained by the court below. There is no plea either by the workman or the management with respect thereto. In the written statement filed before this Court by the respondents a specious plea has been taken that Vakil Singh worked under the stay order and the petitioner was appointed as a labour whereas Vakil Singh was appointed as a Timber Watcher. No other particulars of Vakil Singh''s case have been divulged in the written statement filed before this court. No evidence has been placed before this Court or before the learned Labour Court to distinguish the appointment of the petitioner and Vakil Singh as daily wagers or Timber Watchers. But one thing appears to be certain is that Vakil Singh and Sanjiv Kumar were daily wage Timber Watchers. I see no reason to discard the deposition of the workman that he was appointed as a Timber Watcher on 1.11.1995 on daily wages. To dispute this fact the onus would shift on the Forest Department, which has not been discharged by it. No rules of recruitment have been produced or relied upon classifying Timber Watcher as a public post, permanent or temporary duly shown in the Appendix to statutory rules framed under the proviso to Article 309 or a rule laying down essential qualifications for the post. To the contrary it is not disputed that both, if they can be realistically distinguished, are indeed daily wage workmen. No subtlety can be attached to this distinction.

Violation of Section 25-G of the Act has been placed at par with violations of Section 25-F & 25-H. See Harjinder Singh Vs. Punjab State Warehousing Corporation, , which is an authority on both 25-F & 25-G and on the question that a plea of violation of rules at the time of appointment cannot be taken up for the first time in writ proceedings. The respondent management did not plead that the petitioner was a back door entry to daily wage service and, therefore, the State cannot be heard to urge that the appointment was against the constitutional scheme and de hors Articles 14 & 16 of the Constitution.

Mr. Maanipur has also placed reliance on a single Bench decision of this Court in Maya Devi v. Presiding Officer, Industrial Tribunal-cum-Labour Court, Rohtak & others, 2012(6) SLR 85 : 2012(3) SCT 399, which relates to the Forest Department. This Court reinstated the worker, who had served for 19 years as a daily wager before being thrown out unceremoniously and was granted full back wages by rejecting the argument based on violation of Articles 14 & 16 of the Constitution taken up for the first time in writ proceedings. For the foregoing reasons, this petition is allowed. The impugned award is set aside. The petitioner is ordered to be reinstated to service with 50% back wages since the worker had put in about five years of service as against a larger span of daily wage service in Maya Devi.