Punjab Water Supply and Sewerage Board vs Presiding Officer, Labour Court, Bhatinda

S.S. Sudhalkar, J.—This writ petition is filed by the employer challenging the award of the Labour Court dated 16.7.1998 (copy Annexure P/1) vide which respondent No. 2 was ordered 10 be reinstated with continuity of service and full back wages,

We have heard learned counsel for the parties.

The contention of respondent No. 2 before the Labour Court was that he had served the petitioner department as Store Coolie for 4-1/2 months and was drawing Rs. 924/- per month as wages. His services were terminated on 1.10.1991, though his juniors are still in service.

Petitioner-department had filed written statement before the Labour Court and refuted the case of respondent No. 2 stating that 4-1/2 months of service, as claimed by respondent No. 2, was not service for 240 days in a calendar year and that he was getting his wages as daily rated worker. It is contended that no junior is working under the Management. The Labour Court has observed that respondent No. 2 had agitated in the demand notice as well as in the Statement of Claim that juniors to him were still working in the department and that the Management had denied the fact in the written statement. It is observed that even one Mr. J.S. Deol, MW-1, who is witness of the Management, deposed in his cross-examination that no junior to him was continuing in service. The Labour Court considered the evidence of Shri Baldev Singh, Junior Assistant of the Office of Labour-cum-Conciliation Officer. It has relied on Ex.W/1 which went to show that Shri Charanjit s/o Narata Ram was appointed on 1.8.1991 and that he was still continuing in the depart- ment and the said statement was signed by one Kamail Singh, who represented the Management before the Labour-cum-Conciliation Officer. It is also observed by the Labour Court that the employer is to follow the principle of "last come first go".

Learned counsel for the petitioner has relied on the case of Himanshu Kumar Vidyarthi and others v. State of Bihar and others 1997(3) R.S.J. 298 in which it has been held that the petitioners in that case were not appointed in accordance with the rules but were engaged on the basis of need of work on daily wages and hence their dis-engagement from service was not a retrenchment under the Industrial Disputes Act. As against this, there is a subsequent judgment of the Supreme Court in the case of State of U.P. and Another Vs. Rajendra Singh Butola and Another, in which the Supreme Court upheld the award of the Labour Court and the Judgment of the High Court, by which the termination was set-aside. It was a case of daily wager who had worked for 4 years.

Counsel for the respondent No. 2 has relied on the case of State of Haryana and others v. Presiding Officer, Labour Court and others 1999(2) SLR 694 : 1999(4) SCT 110 (P&II) and Baljit Singh i-. State of Haryana and others 1995(3) K.S.J. 154 : 1995(3) SCT 154 (P&H). It has been held therein that when there is a violation of principle of "last come first go", the equality clause was violated and the order of termination is bad.

The question to be considered now is that what is the effect of the case of Himanshu Kumar Vidyarthi and the case of Rajinder Singh Butola (supra). In the latter case, the termination of the workman was of course, after four years, but the principle of the case of Himanshu Kumar Vidyarthi has not been accepted in the subsequent judgment. Respondent No. 2 could have been thrown out on the ground of his not completing 240 days, but the petitioner has adopted the policy of hire and fire which can be found from the fact that even after the services of respondent No. 2 were terminated, another person was appointed. It has been held by Division Bench of this court in the case of Baljit Singh (supra) as under :-

"..... This being the position, it has to be held that respondent No. 2 has violated the rule of "last come first go" incorporated in Section 25H. This rule is reflection of the ''equality clause'' enshrined in the Constitution and, therefore, breach of the rule of "last come first go" embodied in Section 25G has the effect of violating the ''equality clause''. In Civil Writ Petition No. 11860 of 1994 decided on 31.8.1994 (Administrator/Chairman, Market Committee v. Presiding Officer, Industrial Tribunal-cum-Labour Court Hissar), this Court has examined the issue of applicability of Section 25G even in a case where the employee has not completed 240 days and it has been held that employer is required to comply with the provisions of Section 25G of the Act even though the em-ployee may not have completed 240 days as to claim benefit of provisions of Section 25F of the Act."

Haying not completed 240 days prior to the date of termination, the petitioner, otherwise would not have had any right to challenge the termination. However. in view of the judgment in the case of Baljit Singh (supra), the petitioner could claim his right in view of the facts of this case.

In view of the above facts, the writ petition deserves to be dismissed and is hereby dismissed.

Petition dismissed