GURDIAL SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) In this petition under Articles 226/227 of the Constitution of India the petitioner has challenged the award dated 26.12.1985, Annexure P7 passed by respondent-2.

(2.) Petitioner was employed as a Tractor Driver by order dated 4.10.1978, Annexure Pl, by the Executive Engineer, Haryana Urban Development Authority, Division II Panchkula. In the year 1983 he faced trial in a criminal case registered against him. He was, however, acquitted. Services of the petitioner were terminated by order dated 10.5.1983, Annexure P-3. The petitioner raised an industrial dispute which on being referred by the Government came up for adjudication before the Labour Court, Ambala, respondent-2. The Labour Court, Ambala by its detailed award dated 26.12.1985 held that termination of services of the petitioner was justified and consequently dismissed the reference. This is how the petitioner has challenged the award of the Labour Court, by way of present writ petition, on various grounds, viz. before passing the order of termination no show cause notice was served upon him and even no regular inquiry was held. The termination of the petitioner thus amounted to retrenchment attracting the provisions of Section 25-F of the Industrial Disputes Act (for short 'the Act') and the said provisions having not been complied with before passing the termination order, the impugned award deserved to be quashed and as a result, the petitioner was entitled to reinstatement with continuity of service and full back wages. In the written statement filed on behalf of respondent-3, the Haryana Urban Development Authority, Chandigarh, a significant preliminary objection was raised that the Haryana Urban Development Authority was a statutory body constituted under the Haryana Urban Development Authority Act, 1977 and therefore, the provisions of the Industrial Disputes Act, 1947 were not applicable to the present case. Another equally important question was also raised in the reply that the Haryana Urban Development Authority was not an 'industry' as defined under Section 2(j) of the Industrial Disputes Act. Other allegations were also controverted in the reply. Writ Petition was ultimately admitted to regular hearing on May 18, 1987.

(3.) In due course of time, the present writ petition came to be listed before R.S. Mongia, J. and his Lordship, by order dated 18.12.1991, having regard to the fact that some other writ petitions involving the same vital questions as raised herein, were pending consideration before a Division Bench of this Court, in many cases, C.W.P. 759 of 1985 being one of them, directed the office to list the matter in hand before the Division Bench to be heard with CWP 759 of 1986. The Division Bench, by its order dated 4.6.1993, besides answering various other questions, held that the Haryana Urban Development Authority was an 'industry' as defined under the industrial Disputes Act, 1947. Thus, the pivotal question "whether the Haryana Urban Development Authority" is an industry as defined in the Industrial Disputes Act, 1947 having been answered in the affirmative by a Division Bench of this Court and undisputedly this proposition having attained finality, the other questions that fall for consideration by this Court in the present case are, whether the termination of the petitioner amounted to retrenchment and if so, whether the provisions of Section 25-F of the Industrial Disputes Act could be set at naught by taking resort to the provisions of the Public Works Department Code or conditions of contract or any other subsidiary or ancillary rules. But before any arguments on the above questions could be addressed, learned counsel for the petitioner, at the very outset submitted that on the date of termination of services, the petitioner had completed about 1647 days of service with the respondent-department and he is out of job ever since his services were terminated in the year 1983. Learned counsel further submitted that the petitioner would give up his claim for back wages for the period he remained out of service of the department in case he is ordered to be reinstated with continuity of service especially having regard to the fact that the petitioner is now overage and thus is unable to get fresh employment anywhere else. The latter submission of learned counsel for the petitioner could not be seriously opposed by the counsel for the respondents. Even on a consideration of the offer made on behalf of the petitioner, l find that the petitioner was employed in the respondent department way back in the year 1978 and his services were terminated in the year 1983 when he had served the department for about 1647 days and during the course of hearing it was revealed that his services were terminated primarily on account of his absence from duty for a short period, which in my opinion is not a serious charge so as to deprive him another chance to serve the department. Moreover, an undertaking has been given on behalf of the petitioner that he would forgo his claim for back wages for the entire period he remained out of service in case he is ordered to be re-instated with continuity of service. Apart from the above, the Labour Court did not go into the merits of the case while answering the reference. Thus, having regard to the fair stand taken by learned counsel for the petitioner as noticed above and in the facts and circumstances of this case, the impugned award Annexure P-7 is quashed and the petitioner is offered to be re-instated with continuity of service. The petitioner shall, however, not be entitled to any back wages from the date of his termination till the date he now reports for duty. The petitioner shall now report for duty in the office of the Executive Engineer, H.U.D.A., Division-II, Panchkula within one month from today and on his so doing, he will be taken back into service. However, it is ordered that in the eventuality of the respondent-authorities not allowing him to join his duties, the petitioner shall be entitled to full salary right from the day he now reports for duty till the date of his retirement/superannuation if otherwise eligible. The writ petition stands disposed of in the terms and directions stated above. No costs.