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2017 DIGILAW 853 (PNJ)

Hari Singh v. Municipal Corporation, Bathinda

2017-03-28

AJAY KUMAR MITTAL, RAMENDRA JAIN

body2017
JUDGMENT : Ramendra Jain, J. 1. By way of present Letters Patent Appeal under Clause X of the Letters Patent, the appellant has assailed the impugned judgment dated 31.8.2016 passed by the learned Single Judge allowing Civil Writ Petition No.7694 of 2013 filed by respondent no.1-Municipal Corporation, Bathinda. 2. Briefly stated, the appellant raised an industrial dispute alleging that he was working as a Mali since April, 1991 with respondent no.1-Municipal Corporation and was drawing salary of Rs. 1050/- per month. His services were illegally terminated w.e.f. 01.07.1995 without serving any notice, charge-sheet, inquiry or compensation. However, according to respondent no.1-Municipal Corporation, the appellant had not served for more than 240 days in the preceding 12 months and he himself had abandoned the job for better prospects. The learned Tribunal, vide award dated 18.01.2012 (Annexure P-3) allowed the claim of the appellant and ordered his reinstatement with continuity of service. Respondent no.1-Municipal Corporation challenged the award dated 18.1.2012 (Annexure P- 3) by way of Civil Writ Petition No. 7694 of 2013. The learned Single Judge, vide judgment dated 31.08.2016, allowed the writ petition and set aside aforesaid impugned award dated 18.1.2012 passed by the learned Tribunal. Feeling aggrieved, the appellant is before us, challenging the impugned judgment dated 31.08.2016 passed by the learned Judge, whereby the award dated 18.1.2012 passed by the learned Tribunal, was set aside. 3. The primary argument raised by the Learned counsel for the appellant is that the learned Single Judge, while passing the impugned Judgment dated 31.8.2016, has not followed the principle of “last come first go” and therefore, there is violation of provisions of Section 25-H of the Industrial Disputes Act, 1947 (hereinafter referred to as “the Act”). 4. We have heard learned counsel for the appellant and gone through the case file carefully. 5. The plea taken by respondent no.1-Municipal Corporation, in Civil Writ Petition No.7694 of 2013, is that the provision of Section 25-H of the Act is not applicable to the facts of the present case, as during the period from April 1995 to July, 1995, the workman had worked only for 74 days. During the year 1991, the appellant had worked only from April 1991 to September, 1991. Thereafter, after a gap of four years, once again, the appellant was appointed on daily wage basis. During the year 1991, the appellant had worked only from April 1991 to September, 1991. Thereafter, after a gap of four years, once again, the appellant was appointed on daily wage basis. The demand notice issued by the appellant on 21.4.1997, was withdrawn by him in the year 2001, that too after a gap of four years. Subsequently, the demand notice was, once again, issued on 12.12.2001. The sequence of events shows that the appellant himself had abandoned the job on his own and as such, he is not entitled to reinstatement with continuity of service after a gap of four years. A cursory glance of the impugned judgment dated 31.8.2016 indicates that since the appellant had worked in two spells, i.e., from April 1991 to September 1991 and April 1995 to July 1995, the condition for completion of 240 days by an employee, has to be counted in a particular spell and not in break periods. The observation made by the learned Single Judge, in our considered opinion, that the appellant had not completed 240 days, finds favour with this court. Further the observation made by the learned Single Judge with respect to application of provision of Section 25-H of the Act, that the conduct of the appellant, as is apparent from the record, can be gauged from the fact that the demand notice issued by the appellant, in the year 1997, was withdrawn in the year 2001. In such circumstances, the finding recorded by the learned Single that the Labour Court had erred in directing the reinstatement of the appellant with continuity of service after a gap of about 17 years from the date of abandonment of service, can not at all be said to be unreasonable and as such, the same is hereby affirmed. The contention raised by the learned counsel for the appellant, in our considered opinion, is not sustainable in the facts and circumstances of the instant case, especially when the conduct of the appellant can be assessed from the fact that there is a gap of four years between the first spell and the second spell of service put in by him in breaks and as such, the question of applying Section 25-H of the Act does not arise in the instant case. 6. 6. In view of the foregoing reasons recorded here-in-above, we do not find any infirmity or impropriety in the impugned judgment dated 31.8.2016 passed by the learned Single Judge and as such, the same is hereby affirmed. 7. The Letters patent appeal is, accordingly, dismissed. C.M. No.5026-LPA of 2016 8. There is a delay of 39 days in filing the appeal. Since the main appeal has been dismissed on merits, no further orders are required to be passed in the application for condonation of delay in filing the appeal and the same is left open. 9. Registry is directed to bring this order to the notice of the respondents so as to avoid any concealment of this order by the appellant.