- (1.) The challenge, in the present writ petition, is to the award dated 22.7.2013 (Annexure P5) whereby the respondent-workman has been reinstated by the Labour Court, Patiala with continuity of service but no back wages were granted. Perusal of the paper-book would go on to show that the demand notice dated 3.11.2004 (Annexure P2) was issued by the respondent-workman whereby he took a plea that he was appointed as a daily wager on 1.8.1987 with the petitioner department. It was alleged that he was doing various works including typing, maintaining diaries and dispatch etc. He worked as such at Hoshiarpur and Mohali in the office of the Mining Officer, Department of Industries. His services were terminated on 31.8.2000 and he, having completed 240 days, was entitled for the protection granted under section 25-F of the Industrial Disputes Act, 1947 (In short "the Act"). Accordingly, he sought reinstatement with continuity of service with full back wages. The factum of working of the petitioner in the office of the Mining Officer, Mohali was admitted in the reply filed to the demand notice (Annexure P3) and it was admitted that the workman had worked from 1.9.1996 continuously upto 31.8.2000 at the rates fixed by the Deputy Commissioner. He was only engaged on daily wage basis as a Labourer. His services, no longer being required, had been dispensed with and the plea taken was that the department was not an industry. On the matter being referred to the Labour Court, in the written statement, even the period of work from 1.6.1987 at Hoshiarpur onwards was also admitted. It was submitted that on superannuation of one Rattan Singh, Mining Guard on 31.8.2000, one Devi Dass was adjusted and services of the workman were dispensed with as sanction was not granted by the Government for daily wage workers. Before the Labour Court, the plea was also taken by the petitioner that as per the policy dated 23.1.2001 (Annexure P1), the workers, who had completed three years of service, were to be regularized and Devi Dass had been wrongly regularized whereas the respondent's services had been terminated inspite of the fact that the said person did not have continuity in service.
(2.) The workman appeared as his own witness in support of his claim, whereas the department examined Bahadur Singh, Junior Assistant as MW.1. It was noticed that Devi Dass was engaged by the Mining Officer, Pathankot in June, 1981, whereas Balbir Chand was engaged in June, 1987. Accordingly, a finding was recorded by the Labour Court that there was no denial that the workman had worked for 240 days immediately before the date of his termination and the contention of the department that there was no provision of issuing notice, charge sheet or compensation to the daily wager while terminating his services, was rightly rejected as it would amount to violation of section 25-F of the Act. The Labour Court has referred to the judgment of the Apex Court in L. Robert D souza v. Executive Engineer, 1982 44 FLR 250 and the recent judgment in Devinder Singh v. Municipal Council, Sanaur, 2011 130 FLR 337 to hold that section 25-F of the Act being couched in a negative manner, it was mandatory to comply with the same. The admission of MW.1 Bahadur Singh, Junior Assistant was noticed that the compliance had not been made and accordingly, reinstatement was directed.
(3.) Counsel for the State has submitted that by ordering reinstatement, the Labour Court has created another post and as such, it is not permissible, keeping in view the judgment of the Apex Court in State of Karnataka and others v. Uma Devi and others, 2006 109 FLR 826 .;