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2007 DIGILAW 2130 (PNJ)

Divisional Forest Officer v. Bir Singh

2007-12-06

ADARSH KUMAR GOEL, KANWALJIT SINGH AHLUWALIA

body2007
Judgment , J. 1. This petition seeks quashing of award dated 10.10.2005, Annexure P-4, directing reinstatement of the workman in service with 50% backwages. 2. Case of the workman was that he worked from 1.2.1994 to 12.6.1998 when his services were terminated without following any procedure. 3. The management/State opposed the claim, inter-alia, on the ground that the Forest Department was not an industry. 4. The Labour Court held that the workman was appointed as a daily wager or muster-roll and the muster-roll was not produced and in such a situation, the workman was proved to have worked for more than 240 days and termination of his services without following due procedure under Section 25-F of the Industrial Disputes Act. 1947 (for short, "the Act") was illegal. 5. Contention raised in the petition is that the workman had actually worked for 191 days in the year preceding the raising of dispute and that the workman having been appointed for a temporary project/i.e. Social Forestry Project and Employment Assurance Scheme (E.A.S.), financially aided by the Central Government and World Bank, services of the workman were liable to be terminated on completion of project in view of law laid down by the Honble Supreme Court in State of Himachal Pradesh v. Ashwani Kumar and others. AIR 1996 SC 960; 1996(1) SLR 647 (SC]. Reinstatement and award of backwages in favour of the workman was not justified. Burden of proving, that the workman was not gainfully employed, was on the workman as held in Reserve Bank of India, Bangalore v. S. Mani and others, (2005)5 SCC. 100. It has been further Submitted that the workman being a seasonable worker, termination of his services as per contract did not amount to retrenchment under Section 2(oo) of the Act. Further contention is that the workman was not appointed as per any rules or regulations but by back door and could not be reinstated into service merely for violation of Section 25-F of the Act, even if established, in view of law laid down by the Honble Supreme Court in State of Karnataka and others v. Umadevi and others, (2006)4 SCC 1 : [2006(;) SLR 1 (SC]. 6. In spite of service of notice, the workman has not put in appearance. He is thus, proceeded against ex-pate. 7. We have considered the submissions made on behalf of the petitioner- State and perused the record. 8. 6. In spite of service of notice, the workman has not put in appearance. He is thus, proceeded against ex-pate. 7. We have considered the submissions made on behalf of the petitioner- State and perused the record. 8. We find that the view taken by the Honble Supreme Court in Municipal Council, Samrala v. Raj Kumar, (2006)3 SCC 81 is that unless an employee is appointed as per rules and regulations, his appointment cannot be treated to be consistent with Articles 14 and l6 of the Constitution. Appointment given de hors the rules and regulations is liable to termination and is covered under Section 2(oo) (bb) of the Act and thus, does not amount to retrenchment. Similarly, in Gangadhar Pillai v. Siemens Limited, (2007)1 SCC 533 : [2007(1) SLR 302 (SC]. Indian Drugs and Pharmaceuticals Ltd. v. Workmen, (2007)1 SCC 408 : [2(107(1) SLR 388 (SC]. Reserve Bank of India v. Gopinath Sharma and another (2006)6 SCC 221 and UP Power Corporation Ltd. and another v. Bijli Mazdoor Sangh and others. (2007) 5 SCC 755 : [2007(3) SLR 589 (SC], it has been held that reinstatement of a workman in public employment will not be consistent with Article 14 unless the workman had been appointed by following rules and regulations. 9. Accordingly, this petition is allowed and the impugned award is quashed.