REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.     3473             OF 2009 (Arising out of SLP (C) No. 12399 of 2006)

The Chief Soil Conservator Punjab & Ors. ..Appellants    

Versus

Gurmail Singh  ..Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J

1. Leave granted.

2. Challenge in this appeal is to the order passed by the Division Bench  

of the Punjab and Haryana High Court dismissing writ petition filed by the  

appellant under Article 226 of the Constitution of India, 1950 (in short ‘the  

Constitution’).   Prayer in the writ  petition was to quash the award dated  

23.9.2004 under which the respondent  no.1 was directed to be reinstated  

with continuity of service with 50% back wages within stipulated time.  The  

award was made by the Presiding Officer, Patiala.  The matter was before  

the Labour Court on the basis of a complaint made by respondent no.1.      

The  brief  facts  of  the  case  are  that  respondent  no.1-workman was  

appointed  as  Buldozer  Operator  with  the  petitioner-management  on  

1.11.1990.   Since  his  appointment  was  on  89  days  basis,  the  same was  

extended from time to time till 5.7.1996.  Thereafter, his services were not  

extended. The workman raised an industrial dispute on the ground that his  

services  were  terminated  by  the  management  on  15.7.1996  without  any  

notice, charge sheet, enquiry or compensation and that the juniors to him are  

still in service of the management and new persons were also appointed by  

the management after terminating his services. The government referred the  

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dispute to the Labour Court for adjudication under Section 10(1)(c) of the  

Industrial Disputes Act, 1947 (in short the ‘Act’) and the Labour Court on  

23.9.2004 made the award, which was challenged before the High Court.

The  stand  of  the  petitioner-management  is  that  respondent  no.1-

workman was engaged as Buldozer Operator on 89 days basis and in that  

stop-gap  arrangement  he  had  worked  from 1.11.1990  till  15.7.1996  but  

intermittently.   He  was  never  employed  continuously,  therefore,  did  not  

work for 240 days in the preceding 12 calendar months.  Thus, denial of  

further extension of his service does not amount to retrenchment, therefore,  

has  been  wrongly  awarded  reinstatement  with  back  wages.  The  Labour  

Court has not appreciated the fact that since the petitioner department is not  

an “Industry”, the services of respondent  no.1 were not  governed by the  

afore-stated Act.  

The Labour Court held that Section 2(o) of the Act has no application  

to the facts of the case.  In any event, the workman had completed 240 days  

of work in several years.  The appellants took the stand that respondent no.1  

have  not  completed  240  days  of  work  in  any  calendar  year.  He  never  

worked continuously.  The employer was not an industry. The Labour Court  

held that there was no compliance with requirement of Section 25F of the  

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Act.   The  question  whether  department  is  an  industry  has  to  be  decide  

against  the  management  for  want  of  evidence.   The  onus  was  on  the  

department  to  prove  that  the  workman  worked  only  180  days  and  not  

completed 240 days in the preceding 12 calendar months from the date of  

alleged termination.  Since no records were produced by the department the  

claim has to be accepted.  In the writ petition before the High Court it was  

categorically  urged  by  the  appellant  that  no  appointment  order  was  

produced.  In any event, the attendance sheet clearly shows that the claim of  

the workman was not acceptable.  The High Court held that no authenticity  

can be attached to the documents as the attendance for the month of July  

1996 was not produced and the same was up to June 1996.  It was also held  

that whether department is an industry is a question of fact which was not  

established.   

3. Learned  counsel  for  the appellant  submitted that  the  Labour  Court  

and the High Court erroneously held that the onus was on the department.  It  

was also submitted that the attendance sheets have been discarded without  

any reason. The plea of the department was that work upto particular date in  

July.  Even if the period is added to the period available for verification  

from  the  attendance  sheet,  it  does  not  exceed  240  days.  It  was  also  

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submitted that the engagement was made for specific purpose that too on 89  

days basis.  Therefore, Section 2(o)(o) of the Act has clearly application.  

4. Learned counsel for the respondent on the other hand supported the  

order of the Labour Court.  

5. As  contended  by learned  counsel  for  the  appellant,  it  was  for  the  

workman to establish that he was engaged for more than 240 days in the 12  

months  preceding  the  date  of  alleged  termination.  This  position  was  

highlighted  in  Rajasthan  State  Ganganagar  S.  Mills  Ltd. v.  State  of  

Rajasthan and Anr. (2004 (8) SCC 161).

6. Apart  from that  the  record produced were upto June,  1996.   What  

would have been the effect if the whole period of 15 days upto 15th July,  

1996 was added has  not  been considered.  There  is  no discussion  on  the  

aspect as to why the appellant should not be treated as “industry”.  Neither  

the Labour Court nor the High Court has discussed this matter.    

7. In  the  normal  course,  we  would  have  remitted  the  matter  to  the  

Labour Court for consideration of the relevant aspects.  But considering the  

passage of time we do not consider it appropriate to do so.  The order of  

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stay was passed on 7.8.2006.  In the peculiar facts of the case we direct that  

the respondent will pay a sum of Rs.60,000/- in full and final settlement of  

his claim.  We make it clear that we have not decided the issue as to whether  

the appellant is an industry.      

8. The appeal is disposed of accordingly.

……………………………… ……J.

(Dr. ARIJIT PASAYAT)

……………………………………J. (ASOK KUMAR GANGULY)

New Delhi, May 08, 2009

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