Kumar Vs. State of Haryana  INSC 43 (13 January 2010.
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 229 OF
2010 (Arising out of S.L.P. (C. No. 14078 of 2009. Ramesh Kumar ....
Appellant(s. Versus State of Haryana .... Respondent(s.
This appeal is directed against the judgment and final order dated
23.12.2008 passed by the High Court of Punjab and Haryana at Chandigarh in CWP
No. 575 of 2004 whereby the High Court allowed the writ petition filed by the
State of Haryana.
According to the appellant, in December, 1991, he was appointed as
Mali on casual basis in Public Works Department (B & R. Haryana and worked
at the Chief 1 Minister's residence. On 31.01.1993, his service was terminated
without any notice or retrenchment compensation as provided in the Industrial
Disputes Act, 1947 (hereinafter referred to as "the Act".. After
knowing that persons similarly appointed were either allowed to continue or
regularized by the Department, the appellant sent a notice to the respondent.
Since the Department declined to accede to his request, appellant made a
Reference No. 81 of 1999 before the Labour Court, Union Territory, Chandigarh.
He pleaded before the Labour Court that he had completed more than 240 days of
service and all along he was performing his duties at the residence of the
Chief Minister, Haryana. The Government has made a policy that persons who have
completed 240 days of service may be regularized, however, instead of
regularization of his services, he was terminated w.e.f. 31.01.1993. He prayed
before the Labour Court for setting the order of termination of his 2 service
and for an award for reinstatement with full back- wages.
It is the case of the Department that the workman has not
completed 240 days of service except in the year 1992. He has not fulfilled the
circular dated 27th May, 1993 entitling him for regularization of his service.
the Government has not framed any policy to regularize the service of persons
who have completed 240 days as claimed.
Before the Labour Court, the workman himself was examined as AW-1.
On the side of the Department, one Junior Engineer was examined as MW-1. On
consideration of the materials placed, the Labour Court, by award dated
10.02.2003, has arrived at a conclusion that the workman has worked with the
Department for a period of more than 240 days within 12 calendar months
preceding the date of termination i.e. 31.01.1993, and in view of
non-compliance of Section 25F of the Act, he is 3 entitled to reinstatement.
The Labour Court has also directed reinstatement with continuity of service
with 50 per cent back-wages from the date of termination. With the above
direction, reference was accepted and answered in the affirmative.
Aggrieved by the said award of the Labour Court, the State of
Haryana challenged the same in CWP No. 575 of 2004 before the Punjab and
Haryana High Court. By the impugned order dated 23.12.2008, the High Court set
aside the award of the Labour Court granting reinstatement and back-wages,
consequently allowed the writ petition.
Questioning the said decision of the High Court, the workman has
filed the present appeal by way of special leave.
Heard learned counsel for the appellant-workman as well as learned
counsel for the respondent-State of Haryana.
The only point for consideration in this appeal is whether the
High Court was justified in setting aside the award of the Labour Court when
the appellant had established that he was in continuous service for a period of
240 days in a calendar year, particularly, when similarly placed workmen were
regularized by the Government.
It is not in dispute that the appellant was appointed as a Mali
and posted at the residence of the Chief Minister in the year 1991. The
materials placed by the appellant before the Labour Court clearly show that he
had worked for three years and there was no break during his service tenure. He
was issued identity card to work in the residence of the Chief Minister and no
reason was given for his termination. It is also his case that there was no
show cause notice and no inquiry was conducted. The perusal of the order of the
Labour Court clearly shows that one Shri Nasib Singh, Junior Engineer, who
deposed 5 as MW-1 on behalf of the Department has categorically stated that the
workman was engaged by the Department on muster rolls as Mali in December, 1991
and he worked up to 31.01.1993. He also stated that there was no break from
December, 1991 to January, 1993 during which the workman was engaged. The
Labour Court as per the materials placed rightly found that the workman has
continuously worked from December 1991 to 31.01.1993.
found that the workman worked for 240 days with the Department within 12
calendar months preceding his date of termination i.e. 31.01.1993. It is useful
to refer the definition of "retrenchment" and "workman" in
the Act which reads thus:
(oo. "retrenchment" means the termination by the employer of the
service of a workman for any reason whatsoever, otherwise than as a punishment
inflicted by way of disciplinary action, but does not include......."
"workman" means any person (including an apprentice. employed in any
industry to do any manual, unskilled, skilled, technical, operational, clerical
or supervisory work for hire or reward, whether the terms of employment be
express or implied, and for the purposes of any proceeding under this Act in
relation to an industrial dispute, includes any such person who 6 has been
dismissed, discharged or retrenched in connection with, or as a consequence of,
that dispute, or whose dismissal, discharge or retrenchment has led to that
dispute, but does not include any such person...
Conditions precedent to retrenchment of workmen.
workman employed in any industry who has been in continuous service for not
less than one year under an employer shall be retrenched by that employer
until- (a. the workman has been given one month's notice in writing indicating
the reasons for retrenchment and the period of notice has expired, or the workman
has been paid in lieu of such notice, wages for the period of the notice;
workman has been paid, at the time of retrenchment, compensation which shall be
equivalent to fifteen days' average pay for every completed year of continuous
service or any part thereof in excess of six months; and (c. notice in the
prescribed manner is served on the appropriate Government or such authority as
may be specified by the appropriate Government by notification in the Official
It is not
in dispute that the appellant is a "workman" as defined under Section
2 (s. and "retrenchment" if any it should be in accordance with
Section 25F of the Act.
in the case on hand, the workman was not given any notice or pay in lieu of
notice or retrenchment 7 compensation at the time of his retrenchment. In view
of the same, the Labour Court has correctly concluded that his termination is
in contravention of the provisions of Section 25 F of the Act. Though the
Department has relied on a circular, the Labour Court on going through the same
rightly concluded that the same is not applicable to the case of the
In addition to the factual conclusion by the Labour Court, namely,
continuance for a period of 240 days in a calendar year preceding his
termination, the appellant has also placed relevant materials to show that
persons similarly situated have already been reinstated and their services have
been regularized. It is his grievance that appellant alone has been meted out
with the hostile discrimination by the Department. He also highlighted that in
respect of some of the workmen who were appointed and terminated, after similar
awards passed by the Labour Court, the Management did not challenge the 8 same
before the High Court by filing writ petitions. He also pointed out that in
some cases where a challenge was made before the High Court by filing writ
petitions however, after dismissal of the writ petitions those persons were
reinstated. In fact, according to the appellant some of them were even
regularized. The details of other identically situated persons are as follows:-
S.No. Name Labour High Court Supreme Court Present Court Status
Singh Claim No writ petition No SLP filed Reinstated allowed filed on
regularized w.e.f. 01.07.2004
Ram Claim Writ petition filed SLP filed by the Reinstated on allowed by
respondents, respondents, 19.06.2004.
also dismissed. Service regularized 3. Rajesh Kumar Claim Writ petition filed
SLP filed by the Reinstated.
by respondents, respondents, Service dismissed also dismissed. regularized.
Paramjit Claim Writ petition filed SLP filed by the Reinstated.
allowed by respondents, respondents, Service dismissed also dismissed. regularized.
Claim In 1st round Writ SLP filed by the Reinstated Kumar allowed petition
filed by respondents, on (Petitioner. respondents, matter remitted 18.06.2004
dismissed back. but service Now petitioner not In 2nd round writ has filed the
was present writ allowed. petition.
The perusal of all these details clearly shows that the appellant
alone was singled out and discriminated. We have already noted the specific
finding of the Labour Court that the appellant had fulfilled 240 days in a
calendar year before the order of termination. The appellant has also
highlighted that he is the sole bread earner of his family and his family
consists of his old mother, wife and two minor sons and a minor daughter. The
above- mentioned chart also shows that identical awards passed in the case of
Mast Ram, Rajesh, Paramjit and Amarjit was upheld by the High Court and the
award in favour of the appellant alone was quashed by the High Court in the
second round of litigation. Though, it was contended that the initial
appointment of the appellant was contrary to the recruitment rules and
constitutional scheme of employment, admittedly, the said objection was not
raised by the Department either before the Labour Court or before the High Court
at the first instance. It was only for 1 the first time that they raised the
said issue before the High Court when the matter was remitted to it that too
the same was raised only during the arguments. In such circumstances, the High
Court ought not to have interfered with the factual finding rendered by the
Labour Court and in view of the different treatment to other similarly placed
workmen the Department ought not to have challenged the order of the Labour
Court. In addition to the above infirmities, the appellant has also pointed out
that one Gurbax Singh who was engaged subsequent to the appellant on casual
basis has challenged his termination order, which was quashed by the Labour
Court; interestingly the Department did not challenge the award of the Labour
Court by filing writ petition. It was also highlighted by the appellant that on
the basis of the award, Gurbax singh was not only taken back in service but his
services were regularized w.e.f. 01.07.2004.
We are conscious of the fact that an appointment on public post
cannot be made in contravention of recruitment rules and constitutional scheme
of employment. However, in view of the materials placed before the Labour Court
and in this Court, we are satisfied that the said principle would not apply in
the case on hand. As rightly pointed out, the appellant has not prayed for
regularization but only for reinstatement with continuity of service for which
he is legally entitled to. It is to be noted in the case of termination of
casual employee what is required to be seen is whether a workman has completed
240 days in the preceding 12 months or not. If sufficient materials are shown
that workman has completed 240 days then his service cannot be terminated
without giving notice or compensation in lieu of it in terms of Section 25F.
The High Court failed to appreciate that in the present case appellant has
completed 240 days in the preceding 12 months and no 1 notice or compensation
in lieu of it was given to him, in such circumstances his termination was
illegal. All the decisions relied on by the High Court are not applicable to
the case on hand more particularly, in view of the specific factual finding by
the Labour Court.
Under these circumstances, the impugned order of the High Court
dated 23.12.2008 passed in CWP No. 575 of 2004 is set aside. It is not in
dispute that the appellant-workman is continuing in service and learned counsel
representing him fairly stated that he is willing to forego back-wages as
awarded by the Labour court, the same is recorded. Consequently, the civil
appeal filed by the workman is allowed to the extent mentioned above.
.........................................J. ( P. SATHASIVAM )
. ..........................................J. (H.L. DATTU)
JANUARY 13, 2010.