B P S MAHILA Vs. MUKESH KUMAR

JUDGEMENT

(1.) Application is allowed. Written statement filed on behalf of respondent No. 1 is permitted to be taken on record. LPA Nos. 890 of 2014 and 883 of 2014. This order will dispose of above said two letters patent appeals as the common questions of law and facts are involved therein. To dictate order, facts are being taken from LPA No. 890 of 2014. Respondent No. 1-workman was taken into service in August as Sweeper by respondent No. 3-Principal, Technical Institute Gurukul, Gurukul Bhainswal Kalan, Sonepat. It is submitted that when he was appointed no post was available. Post was not advertised and under the verbal orders of the then Principal, seven workers including respondent No. 1 were taken in service. Their approval for appointment was sought on 29.1.2007. Above fact is apparent from the document i.e. Annexure P-8. It is the case of respondent No. 1 that his service was terminated on 12.6.2007 without complying with the mandatory provisions of the Industrial Disputes Act, 1947 (for short the 'Act'). Retrenchment compensation was not paid to him. He raised an industrial dispute. The matter was referred to the Industrial Tribunal-cum-Labour Court for adjudication. Both the parties led their evidence and on analysis thereof, it was found as a matter of fact vide order dated 11.10.2013 (Annexure P-10) that the workman had completed continuous service of 240 days with the respondent during 12 months preceding the date of termination of his service. It was further found that termination was ordered without complying with the provisions of Section 25F of the Act. Holding as above, the prayer made by respondent No. 1 was allowed. Reference was decided in his favour ordering his reinstatement with continuity in service and on payment of 50% back wages from the date demand notice was issued by respondent-workman on 4.7.2007.

(2.) It is an admitted fact that respondent No. 1 had rendered service for a period of 11/2 year. There is nothing on record to show that his service was permanent and further that he was not a daily wager. The above award was challenged by the appellant before this Court by filing Civil Writ Petition No. 4853 of 2014. The writ petition was dismissed affirming the LPA No. 890 of 2014 (O & M) award on 27.3.2014. It was observed by the learned Single Judge that once it has come on record that service of respondent No. 1-workman was terminated without complying with the mandatory provisions of the Act, reinstatement has to be ordered as was done by the Labour Court. When notice of motion was issued in the connected appeal i.e. LPA No. 883 of 2014 on 22.5.2014 following contention of the counsel for the appellant was noticed by this Court:

(3.) After hearing learned counsel for the parties, we are not inclined to affirm the award of the Labour Court ordering that respondent No. 1 be reinstated in service on payment of 50% back wages. It is not in dispute that respondent No. 1 was appointed by Mess Committee and the institute was not in existence. The post was not advertised. Seven workmen including the appellant were taken into service under the verbal orders passed by the then Principal of the institute. Respondent-workman was a daily wager and he had worked only for a period of 11/2 year before his service was terminated. His service was terminated in the year 2007. It is not expected that during this period respondent No. 1 was sitting idle and doing nothing towards earning livelihood for his family. Counsel for the appellant has placed reliance upon a judgment of Hon'ble Supreme Court in the case of B.S.N.L. v. Bhurmal,2014 2 SLR 128and also in the case of Assistant Engineer, Rajasthan Development Corporation and Another v. Gitam Singh, 2013 5 SCC 136, to say that in such like a situation, payment of compensation is a proper remedy. But the Labour LPA No. 890 of 2014 (O & M) Court and the learned Single Judge ordered reinstatement of service of the appellant.