- (1.) THE present writ petition has been filed to quash the order dated 28.02.2011 (Annexure P -9) passed by the Labour Court, Panipat whereby, reinstatement with continuity of service and 50% back wages has been ordered from the date of demand notice i.e. 28.12.2004. In the demand notice dated 28.12.2004 (Annexure P -6), the respondent -workman took the plea that he had been appointed on 20.08.2002 on the post of a Sweeper at Rs. 1,233/ - per month and had worked till 13.12.2004. In spite of having completed 240 days in a calendar year, his services had been dispensed with on 14.12.2004 without any notice, notice pay and retrenchment compensation and some juniors had been working on the post of the applicant and the said persons were still continuing.
(2.) ON account of the dispute being referred to the Labour court, the State took the plea that the applicant was a part time employee on the post of Sweeper and engaged purely on temporary or on ad hoc basis and his services had been dispensed with on getting a regular employee from the Government and, therefore, the termination was not illegal. The applicant had no right over the job and he had been kept on ad hoc basis. It was denied that any junior was working but it was admitted that the Government had appointed retrenched persons in place of the applicant through the Employment Department, Haryana. The person employed was retrenched by the Government while working in some department and was not junior to the workman. The deposition of the witnesses of the management was also to the same effect that the workman had been told at the time of engagement of services that his services were liable to be terminated at any point of time without assigning any reason or any prior notice. When a regular sweeper was appointed by the State, there was no job left for the claimant. As per the terms and conditions of his engagement, his services were dispensed with and he could not seek the claim of reinstatement. Reference was also made to the sanction granted by the State Transport Controller, Haryana, Chandigarh dated 16.12.2003 wherein, necessary permission for creation of the post of part time sweeper for a period of 89 days as per the rates approved by the Deputy Commissioner, Panipat was accorded. Following issues were framed by the Labour Court: - "1. Whether the service of the workman have been terminated validly or not? If not, whether he is entitled to any relief? OPW 2. Whether the reference is not maintainable against respondent as alleged? OPM 3. Whether the respondent is not an "Industry as defined under Section 2(j) of the Act, 1947 as alleged? OPM 4. Relief."
(3.) ON the basis of the evidence, the workman, who deposed as per his demand and claim statement and the witness of Vijay Kumar, Assistant, a finding was recorded that the workman was engaged on temporary and part time basis and had worked from 20.08.2002 to 13.12.2004 i.e. for more than 240 days and, therefore, the provisions of Section 25 -F were attracted. There was violation while dispensing with the services as he was not paid retrenchment compensation. Reliance was placed by the Labour Court upon the Division Bench judgment of this Court in Shri Sher Singh vs. State of Punjab, 2001 1 SCT 96; Malwinder Singh Mali vs. Panjab University, 2000 124 PunLR 468; President, Zila Parishad, Panipat vs. Presiding Officer, Industrial Tribunal -cum -Labour Court, Panipat, 2001 129 PunLR 28. Apart from that, reliance was also placed upon Krishan Singh vs. Executive Engineer, Haryana State Agricultural Marketing Board, Rohtak, 2010 3 SCC 637 apart from the judgment of the Apex Court in Anoop Sharma vs. Executive Engineer Public Health Division No. 1, Panipat, 2010 5 SCC 497. Counsel for the State submitted that the said judgments relied upon were not applicable in the facts and circumstances of the case in view of the fact that vide order dated 26.06.2003 (Annexure P -1), the State Transport Controller had granted permission for creation of posts for part time sweepers for four hours daily in the office of the District Transport, Panipat for a period of 89 days, as per the rates approved by the Deputy Commissioner, Panipat. The services of the said sweepers were liable to be terminated at any time without assigning any reason or prior notice. Reference was also made to the sanction granted on 09.06.2004 (Annexure P -3) for creation of the posts of part time sweepers from 16.02.2004 to 14.05.2004 and a similar order dated 16.09.2004, which was for the period from 17.05.2004 to 13.08.2004. Reference was also made to the order dated 08.12.2004 (Annexure P -5) whereby certain employees were appointed as sweepers in the office of the State Transport Controller on ad hoc basis out of the retrenched employees from different departments in the scale of 2550 -55 -2660 -EB -3200+usual allowances. Accordingly, it was pointed out that Joginder Kumar, whose name was mentioned at Sr. No. 1, was appointed in place of the respondent -workman. Thus, it is submitted that it was a contractual appointment to fill up the gap before a regular appointment is made and the petitioner had no right over the job and it was against the rules and, therefore, reinstatement was not justified.;