Haryana Urban Development Authority
Vs. Om Pal  Insc 380 (10 April 2007)
S.B. SINHA & MARKANDEY KATJU
CIVIL APPEAL NO. 1869 OF 2007 [Arising out of SLP(C) No.23386/2004] S.B.
Respondent herein was appointed as a daily-wager. From October, 1994 to
February, 1995, he worked for a period of 145 days in Sub- Division No.2,
Panipat. He, however, worked in Sub-Division No.3 for a period of 90 days from
March 1995 to July, 1995. His services were terminated. An industrial dispute was
raised questioning validity of the said order of termination. The said
industrial dispute was referred by the Appropriate Government to the Industrial
Tribunal-cum-Labour Court, Panipat, for its determination. It was registered
as Reference No.59 of 1999. By an award dated 28.2.2003, the Industrial Court
on the premise that the services rendered by the respondent in both the
Sub-Divisions should be counted for the purpose of Section 25F read with
Section 25B of the Industrial
Disputes Act, 1947, directed his reinstatement with continuity of service
and full back-wages from the date of demand notice i.e. 14.9.1995. A writ
petition filed thereagainst by the appellant herein was dismissed. The
appellant has, therefore, filed this appeal by special leave.
The short question which arises for consideration by us in this appeal is as
to whether in the aforementioned fact situation, the Industrial
Tribunal-cum-Labour Court was justified in directing reinstatement of the
respondent with full back-wages and continuity of service. It has not been
denied or disputed that the two Sub-Divisions constituted two different
establishments. Only because there is one Controlling Authority, the same by itself
would not mean that the establishments were not separate.
Respondent did not produce before the Industrial Tribunal-cum- Labour Court
his offers of appointment. If offers of appointment had been issued in his
favour by the two Sub-Divisions separately, the same ipso facto would lead to
the conclusion that they were separate and distinct. If his appointment was
only on the basis of entry in the muster roll(s), the designation of the
authority who was authorised to appoint him as a daily- wager would be the
determinative factor. It is not the case of the respondent that he was
appointed in both the establishments by the same authority.
The Industrial Tribunal-cum-Labour Court unfortunately did not go into the
said question at all. If both the establishments are treated to be one
establishment, for the purpose of reckoning continuity of service within the
meaning of Section 25B of the Act, as was held by the Tribunal, a person
working at different point of time in different establishments of the statutory
authority, would be entitled to claim reinstatement on the basis thereof.
However, in that event, one establishment even may not know that the workman
had worked in another establishment. In absence of such a knowledge, the
authority retrenching the workman concerned would not be able to comply with
the statutory provisions contained in Section 25F of the Act. Thus, once two
establishments are held to be separate and distinct having different cadre
strength of the workmen, if any, we are of the opinion that the period during
which the workman was working in one establishment would not enure to his
benefit when he was recruited separately in another establishment, particularly
when he was not transferred from one Sub-Division to the other. In this case he
was appointed merely on daily wages.
In Union of India and Others v. Jummasha Diwan [(2006) 8 SCC 544], this
Court opined :
"There are several establishments of the Railway Administration. If a
workman voluntarily gives up his job in one of the establishments and joins
another, the same would not amount to his being in continuous service. When a
casual employee is employed in different establishments, may be under the same
employer, e.g., the Railway Administration of India as a whole, having
different administrative set-ups, different requirements and different
projects, the concept of continuous service cannot be applied and it cannot be
said that even in such a situation he would be entitled to a higher status
being in continuous service. It is not in dispute that the establishment of
Appellant 3 herein had started a project. His recruitment in the said
establishment would, therefore, constitute a fresh employment. In a case of
this nature, the Respondent would not be entitled to his seniority. If the project
came to a close, the requirements of Section 25-N of the Act were not required
to be complied with."
Moreover, it is now also well-settled that despite a wide discretionary
power conferred upon the Industrial Courts under Section 11A of the 1947 Act, the
relief of reinstatement with full back-wages should not be granted
automatically only because it would be lawful to do so. Grant of relief would
depend on the fact situation obtaining in each case. It will depend upon
several factors; one of which would be as to whether the recruitment was
effected in terms of the statutory provisions operating in the field, if any.
Respondent worked for a very short period. He only worked, as noticed
hereinbefore, in 1994-95. The Industrial Tribunal-cum-Labour Court, therefore,
in our opinion committed an illegality, while passing an award in the year
2003, directing the reinstatement of the respondent with full back-wages.
Although we are of the opinion that the respondent was not entitled to any
relief, whatsoever, we direct the appellant to pay him a sum of Rs.25,000/-.
This appeal is allowed to the aforementioned extent. However, in the facts
and circumstances of this case, there shall be no order as to costs.