The Exeecutive Engineer, Public Health Engineering Division, Ambala Cantt and Another v. Som Nath and Others

HARSH BUNGER, J. (ORAL)

1.

Petitioners (The Executive Engineer/Sub-Divisional Engineer, Public Health Engineering Division, Ambala Cantt.) have filed the instant writ petition under Articles 226/227 of the Constitution of India, seeking a writ of certiorari for quashing the impugned Award dated 29.05.2017 (Annexure P-1) passed by the learned Presiding Officer, Labour Court, Ambala (here-in-after referred to as `the Labour Court'); whereby, the reference of industrial dispute raised by respondent No.1-workman (Som Nath) regarding termination of his services; has been answered in his favour and he has been held entitled to reinstatement and continuity of service along with 50% of back wages from the date of his termination.

2.

Briefly, respondent No.1 raised an industrial dispute regarding

termination of his services by the petitioners-Management. The said dispute was referred for adjudication to the Labour Court below. In the claim statement, respondent No.1-workman claimed that he was employed as a Tubewell Operator by the petitioner-Management on 04.04.2012 at the Tubewell in Sai Ka Bagh (Ambala) and he claimed to have worked upto

01.08.2015 without any break and interruption. Respondent no.1-workman claimed that his services were abruptly terminated in violation of the provisions of Section 25-F of the Industrial Disputes Act, 1947 (here-in-after called as `the 1947 Act'). Accordingly, the prayer was made by respondent No.1-workman for his reinstatement in service along with other consequential benefits.

3.

The afore-said claim of respondent No.1-workman was contested by the petitioners-Management on the plea that respondent No.1/workman was never appointed by the Management nor any appointment letter was issued to him. Accordingly, prayer for dismissal of the claim statement was made.

4.

On the basis of the pleadings of the parties, the following issues were framed :- "1. Whether the termination of the services of workman is liable to be set-aside being wrong, illegal, null and void, etc. and the workman is entitled to reinstatement in service with full back wages and all the benefits including the continuity of service ? OPW

¶2Whether there is no relationship of employee and employer between the workman and the respondent no.1 & 2 ? OPM. 1&2

¶3Whether the claim statement is not maintainable in the present form ? OPM

¶4Relief ?"

5.

The parties led their respective evidence in support of their claims.

6.

The learned Labour Court below, upon considering the material/evidence available on the record, answered the reference in favour of respondent No.1-workman by holding him entitled to reinstatement with other consequential benefits.

7.

Being aggrieved against the afore-said award, the petitioner has filed the instant writ petition before this Court.

8.

Learned State counsel appearing for the petitioners submitted that the learned Labour Court below has erred in law and facts in answering the reference in favour of respondent No1-workman by ignoring the material facts that the workman was never engaged by the petitioners-Management. It is submitted that even if, it is presumed that respondent No.1-workman had worked at the Tubewell in question, as claimed by him, even then, he was not entitled to any relief as his appointment was made by not following the due process of law. It is submitted that the learned Labour Court has failed to consider and appreciate that the provisions of Sections 25-F, 25-G and 25-H of 1947 Act were not attracted in the present case; accordingly, it is prayed that the impugned award be set aside.

9.

On the other hand, learned counsel appearing for respondent No.1-workman has supported the findings returned by the learned Labour Court below. It is submitted that the learned Labour Court below has passed a well-reasoned and justified award, which does not call for any interference by this Court. Accordingly, prayer for dismissal of the writ petition has been

10.

I have heard learned counsel for the parties and perused the paper-book with their able assistance.

11.

The learned Labour Court below, vide impugned Award dated

29.05.2017 (Annexure P-1) has returned the following findings :-

"7. Ms. Reetika Singh, learned Government Pleader has stated that there is no relationship of workman and management between the parties to the petition. She has stated that Rs.1000/- per month was paid to the persons engaged for operating the Tubewells on part time basis for running tubewells in the morning time and in the evening time. After that wages were enhanced to Rs.4050/- per month.

¶8Sh. R.S. Saini, learned counsel for the workman has stated that these tubewell operators were engaged by the Public Health Engineering Department of State and salary of Rs.4050/- was also given by the Public Health Engineering Department of State and work of the tubewell operator was monitored by the Samiti Panchayat. It has been argued that the workman has worked for more than 240 with the respondents and after his termination another person Babu Ram has been engaged by Sh. Kuldeep Singh Sidhu, SDE, Public Health. It has been argued by Sh. R.S. Saini, learned counsel for the workman that the salary for eight months was not given to the workman when he demanded for the salary at that juncture his services were terminated by the respondents. Sh. Lal Singh, Nambardar has stated that the salary of the workman for four months in pending with the respondents and shall be given to the workman Som Nath. Workman has appeared in the witness box as WW1 and filed his affidavit Ex.WW1/A and documents Mark-A to Mark-L in his evidence. In cross examination his testimony had remained unshaken. Sh. Rattan Singh Garg, SDE, Public Health, Ambala Cantt has appeared

as MW1 and tendered his affidavit Ex.MW1/1 and documents Ex.M1 to Ex.M4. In cross examination he has admitted that the management No.1 and 2 are the owner of Tubewell and electric connection is in the name of management No.1 and 2. He has also admitted that the respondents no.1 and 2 used to pay wages of Tubewell Operator through Gram Panchayat/Nambardar of the village. He has also admitted that the workman worked as Tubewell Operator at Sai Ka Bagh village Machhonda from 4.4.2012 to 1.8.2015. He has stated that when the workman was appointed on 4.4.2012, he was paid Rs.2000/- per month as wages thereafter on 2.1.2014 his salary was increased to Rs.2672/- and on 29.7.2014 the salary of the workman was increased to Rs.4050/- by the management. He has admitted that no complaint regarding work and conduct of the workman. He has also admitted the documents Mark-B, Mark-G, Mark-I, Mark-J and Mark-K. It has been admitted by the management that after termination of the services of the workman on

1.8.2015, management no.1 & 2 engaged Babu Ram on the post of Tubewell Operator for operating tubewell at Sai Ka Bagh.

¶9In view of the law laid down in case titled State of Himachal Pradesh Vs Suresh Kumar 1996(2) SCT 359 it is held that temporary employee cannot be replaced by any temporary employee. In the case in hand the management has committed unfair labour practice and terminated the services of the workman illegally without following the provisions of section 25-F of the Act. The management has employed another daily wage worker on the same post on the same work after the illegal termination of the workman which is against the law."

12.

A perusal of the above extracted findings would clearly indicate that the petitioner-department's own witness namely, Sh. Rattan Singh Garg,

SDE, Public Health, Ambala Cantt. had clearly admitted in his cross-examination that the tubewell and electric connection, where respondent No.1-workman was posted, was owned by the Department and it is the petitioners-Department, who used to pay wages to the Tubewell Operator through Gram Panchayat/Nambardar of the village. Further, the said witness has also admitted that the workman worked as Tubewell Operator at Sai Ka Bagh Village Machhonda from 04.04.2012 to

01.08.2015. It was categorically stated by the said witness namely, Sh. Rattan Singh Garg that when the workman was appointed on

04.04.2012, he was paid Rs.2,000/- per month as wages and thereafter on

02.01.2014, his salary was increased to Rs.2,672/- and on 29.07.2014, the salary of the workman was increased to Rs.4,050/-. The said witness has further admitted the documents Mark-B, Mark-G, Mark-I, Mark-J and Mark-K. It was also admitted that after the termination of services of respondent No.1-workman on 01.08.2015, the Department had engaged one Babu Ram on the post of Tubewell Operator for operating tubewell at Sai Ka Bagh. The afore-said findings of fact have not been dislodged by the learned counsel appearing for the petitioners. Further, learned State counsel appearing for the petitioners has not been able to show that while terminating the services of respondent No.1-workman, the provisions of Section 25-F of the 1947 Act have been complied with. It is thus manifest that there is a clear violation of the provisions of Sections 25-F and 25-H of the 1947 Act.

13.

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this Court in exercise of its writ jurisdiction, resultantly, the instant writ petition fails and the same is hereby dismissed.

16.

All pending application/s, if any, shall also stand closed.

August 31, 2023

(HARSH BUNGER) gurpreet

JUDGE

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP-10470-2018 (O&M) Date of Decision: 31.08.2023 THE EXECUTIVE ENGINEER, PUBLIC HEALTH ENGINEERING DIVISION, AMBALA CANTT. AND ANOTHER …Petitioners Versus SOM NATH AND OTHERS …Respondents CORAM: HON'BLE MR. JUSTICE HARSH BUNGER Present : Mr. Praveen Chander Goyal, Addl. A.G., Haryana for the petitioners. Mr. Lalit K. Gupta, Advocate for respondent No.1.