NEPAL Vs. PRESIDING OFFICER LABOUR COURT

JUDGEMENT

(1.) Prayer in the present writ petition is for setting aside of the Award dated 12.09.2008 (Annexure P-1) passed by the Labour Court-Ill, Faridabad, vide which the reference has been answered against the workman holding him entitled to no relief against the respondent. Counsel for the petitioner contends that the petitioner was appointed on 01.09.1995 as Tubewell Helper on daily wage basis. He continued with respondent No. 2 till 14.06.1996, which he termed as a date on which, in a Civil Suit filed by the petitioner, status quo order was passed by the said Court till the same was vacated vide order dated 22.08.1998. He contends that during this period i.e. from 01.09.1995 to 14.06.1996, the workman had worked for 288 days with respondent No. 2. His submission is based on the basis of the certificate Ex.WW-1/A wherein it has been certified by respondent No. 2 that the workman had worked with them from September, 1995 to March, 1996 for a period of 213 days. After 31.03.1996, the petitioner admittedly worked with respondent No. 2 till 14.06.1996 voluntarily without any stay order in his favour. If this period is also counted, the total period comes to 288 days. This assertion was made by the counsel on 12.03.2010 and counsel for respondent No. 2 had sought time to verify this aspect. Accordingly, an affidavit of Sh. Anand Swaroop, Assistant Engineer, Municipal Corporation, Faridabad has been filed through C.M. No. 7850 of 2010, wherein this factual aspect has been admitted. In this view of the matter, the findings recorded by the Labour Court that the workman had not completed more than 240 days in service in 12 preceding months from the date of his termination cannot be sustained. Accordingly, the said findings are set aside. '

(2.) Now the question arises as to what relief the petitioner-workman would be entitled to. It is an admitted position that the workman was appointed on daily wage basis with respondent No. 2 and his appointment was not as per the statutory Rules governing the service or in consonance with the Articles 14 and 16 of the Constitution of India. That being so, the petitioner-workman cannot be ordered to be reinstated in service as the post, on which the workman was appointed, is a public post.

(3.) Reference at this stage can be made to the judgments passed by the Hon'ble Supreme Court in the cases of Ghazibad Development Authority and Anr. v. Ashok Kumar and Anr, 2008 4 SCC 261, Mahboob Deepak v. Nagar Panchayat, Gajraula, 2008 1 SCC 575, M.P. Administration v. Tribhuwan, 2007 9 SCC 748, State of M.P. and Ors. v. Lalit Kumar Verma, 2007 1 SCC 575 and Jaipur Development Authority v. Ramsahai and Anr, 2006 11 SCC 684. But thereafter, the Hon'ble Supreme Court, faced with the situation as in the present case where the termination of the workman was in violation of the provisions of the Industrial Disputes Act but his appointment was dehors the statutory Rules governing the service and in violation of the Articles 14 and 16 of the Constitution of India, ordered payment of compensation in lieu of reinstatement. Reference can be made to a judgment of the Hon'ble Supreme Court in the case of Telecom District Manager and Ors. v. Keshab Deb, 2008 4 SCT 32 and a Division Bench judgment of this Court in the case of State of Haryana v. Ishwar Singh and Anr., 2008 3 SCT 788. Accordingly, it is held that the workman would be entitled to compensation in lieu of reinstatement in service as his termination was in violation of Section 25-F of the Industrial Disputes Act.