- (1.) This petition filed by the workman under Articles 226/227 of the constitution is directed against the award dated 14.1.2010 passed by the Labour Court, Panipat answering the reference under Section 10(1)(c) of the Industrial Disputes Act, 1947 (for short "the Act") against the workman and in favour of the Management. The brief facts of the case are that the petitioner was appointed as a Gardener with the respondent No. 2-Management in 1986 and served upto 27.3.2001. The petitioner pleads that she and other gardeners working in different Districts had raised demands for regularization of their services. She too had voiced her concern. Instead of regularizing her services, she was dealt with a termination order on 27.3.2001. On the matter having reached the Labour Court, the Management took its defence that the employer Forest department was not an industry; the claimant was a seasonal worker on daily wages; that she had not completed 240 days in the preceding calendar year from the date of termination. The Labour Court returned a finding that the petitioner had completed 240 days of continuous service within the meaning of Section 25B of the Act. The Labour Court thereafter veered and derailed the matter by observing that the petitioner was admittedly engaged as a daily wager; she was not engaged by the respondent-Management as per norms and procedure as laid down for making such appointment. Several decisions were relied upon including the one rendered by the Constitution Bench in the case of Secretary, State of Karnataka and others v. Uma Devi and others, 2006 4 SCC 1 to hold that the petitioner has no right to claim the post, and thus she has no right to reinstatement, despite non-compliance of the mandatory provisions of Section 25F of the Act.
(2.) 1 have heard learned counsel for the parties and perused the record. This Court finds that the issue before the Labour Court as referred to it was with regard to the legality and validity of the termination of the services of the petitioner. The workman did not claim regularization either before the Labour Court or before this Court. The workman sought reinstatement. In case of reinstatement, she would obviously go back to the same position as held by her on the date of termination.
(3.) A sea change has been brought about by the Hon'ble Supreme Court in its landmark judgment in the case of Harjinder Singh v. Punjab State Warehousing Corporation, 2010 3 SCC 192 as to the effect of violation of Section 25G of the Act. In the aforesaid judgment, the Hon'ble Supreme Court has observed as under:-- 30. Of late, there has been a visible shift in the courts approach in dealing with the cases involving the interpretation of social welfare legislations. The attractive mantras of globalization and liberalisation are fast becoming the raison d'etre of the judicial process and an impression has been created that the constitutional courts are no longer sympathetic towards the plight of industrial and unorganized workers. In large number of cases like the present one, relief has been denied to the employees falling in the category of workmen, who are illegally retrenched from service by creating by-lanes and side-lanes in the jurisprudence developed by this Court in three decades. The stock plea raised by the public employer in such cases is that the initial employment/engagement of the workman-employee was contrary to some or the other statute or that reinstatement of the workman will put unbearable burden on the financial health of the establishment. The courts have readily accepted such plea unmindful of the accountability of the wrong doer and indirectly punished the tiny beneficiary of the wrong ignoring the fact that he may have continued in the employment for years together and that micro wages earned by him may be the only source of his livelihood. 31. It need no emphasis that if a man is deprived of his livelihood, he is deprived of all his fundamental and constitutional rights and for him the goal of social and economic justice, equality of status and of opportunity, the freedoms enshrined in the Constitution remain illusory. Therefore, the approach of the courts must be compatible with the constitutional philosophy of which the Directive Principles of State Policy constitute an integral part and justice due to the workman should not be denied by entertaining the specious and untenable grounds put forward by the employer - public or private.;