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CASE NO.: Appeal (civil)  1869 of 2007

PETITIONER: HARYANA URBAN DEVELOPMENT AUTHORITY

RESPONDENT: OM PAL

DATE OF JUDGMENT: 10/04/2007

BENCH: S.B. SINHA & MARKANDEY KATJU

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.  1869     OF 2007 [Arising out of SLP(C) No.23386/2004]

S.B. Sinha, J.         Leave granted.

       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

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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 :

"\005There 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.