REPORTABLE IN THE 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)

JUDGMENT  

P. Sathasivam, J.

1) Leave granted.

2) 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.  

3) 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  

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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  

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service and for an award for reinstatement with full back-

wages.  

4) 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.  

Further,  the  Government  has  not  framed any  policy  to  

regularize the service of persons who have completed 240  

days as claimed.   

5) 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  

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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.  

6) 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.  

7) Questioning the said decision of the High Court, the  

workman has filed the present appeal by way of special  

leave.   

8) Heard learned counsel for the appellant-workman as  

well  as  learned  counsel  for  the  respondent-State  of  

Haryana.   

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9) 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.   

10) 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  

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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.  

It also 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:

“2  (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…….”

2  (s)  “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  

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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… ……….”

25F.  Conditions  precedent  to  retrenchment  of  workmen.

No 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;

(b) the  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 Gazette.”

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.  

Admittedly,  in the case on hand, the workman was not  

given any notice or pay in lieu of notice or retrenchment  

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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 retrenchment.   

11) 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  

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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  Court

High Court Supreme Court Present  Status

1. Gurbax Singh Claim  allowed

No writ petition  filed

No SLP filed Reinstated  on  19.06.2004.  Service  regularized  w.e.f.  01.07.2004

2. Mast Ram Claim  allowed

Writ petition filed  by respondents,  dismissed

SLP filed by the  respondents,  also dismissed.

Reinstated on  19.06.2004.  Service  regularized

3. Rajesh Kumar Claim  allowed

Writ petition filed  by respondents,  dismissed

SLP filed by the  respondents,  also dismissed.

Reinstated.  Service  regularized.

4. Paramjit  Kumar

Claim  allowed

Writ petition filed  by respondents,  dismissed

SLP filed by the  respondents,  also dismissed.

Reinstated.  Service  regularized.

5. Ramesh  Kumar  (Petitioner)

Claim  allowed

In 1st round Writ  petition filed by  respondents,  dismissed

In 2nd round writ  petition was  allowed.

SLP filed by the  respondents,  matter remitted  back.  Now petitioner  has filed the  present writ  petition.

Reinstated  on  18.06.2004  but service  not  regularized.

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12) 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  

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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.

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13) 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  

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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.            

14) 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.  

No costs.

.….…….………………..………J.                                                   ( P. SATHASIVAM )

...…………………………………J.                   (H.L. DATTU)  

NEW DELHI;

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JANUARY 13, 2010.

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