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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 346 OF 2015  (Arising out of S.L.P. (C) No. 1532 of 2014)

JASMER SINGH                 ... APPELLANT

VERSUS

STATE OF HARYANA & ANR.          ...RESPONDENTS

J U D G M E N T

V. GOPALA GOWDA, J.

Leave granted.

2. This appeal is filed by the workman, aggrieved  

by the impugned judgment and order of the Punjab  

and Haryana High Court in L.P.A. No. 2245 of 2011  

(O & M) dated 19.09.2013 affirming the judgment  

and  order  of  the  learned  Single  Judge  dated  

7.04.2010 passed in C.W.P. No. 9532 of 2001 by  

which  Award  dated  27.07.2000  of  the  Industrial  

Tribunal-cum-Labour Court, Panipat, in Reference  

No.  205  of  1997  is  set  aside,  raising  certain

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questions of law and urging various legal grounds  

in support of the same.

3. In nutshell, facts are stated for the purpose  

of finding out whether the impugned judgment and  

order of the Division Bench warrants interference  

by this Court in this appeal.

4. The appellant-workman was working as daily paid  

worker  in  the  office  of  Sub  Divisional  

Officer/Engineer, Provincial Division No. 3, PWD B  

& R Karnal since 1.1.1993 and remained in service  

upto December, 1993. He had completed more than  

240  days  of  continuous  service  in  one  calendar  

year. His services were terminated on 31.12.1993  

without complying with the mandatory provisions of  

Sections  25-F,  25-G  and  25-H  of  the  Industrial  

Disputes  Act,  1947  (hereinafter  referred  to  as  

“the  Act”).  The  respondent-management  neither  

issued  notice  nor  notice  pay  nor  retrenchment  

compensation was given to him. The principle of  

'last come first go' was not followed as provided  

under Section 25G of the Act and the persons who

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were  juniors  to  him  in  service  were  retained.  

Therefore,  he  has  raised  an  industrial  dispute  

under  the  provisions  of  the  Act  before  the  

Conciliation Officer requesting for setting aside  

the order of termination as the same is  void ab  

initio  in  law and  sought  an  order  for  

reinstatement  with  back  wages  and  other  

consequential  benefits.  As  the  workman's  demand  

made  in  his  Notice  dated  27.11.1996  was  not  

complied with, the Conciliation Officer submitted  

a  failure  report  to  the  State  Government  of  

Haryana.  The  State  Government  of  Haryana  in  

exercise  of  its  statutory  power  under  Section  

10(1)(c)  of  the  Act   referred  the  industrial  

dispute  to  the  Industrial  Tribunal-cum-  Labour  

Court  for  adjudication  as  per  the  points  of  

dispute. The same was registered as Case Reference  

No. 205 of 1997 for adjudication of the dispute.

5. The  Industrial  Tribunal-cum-Labour  Court  

answered  the  points  of  dispute  referred  to  it.  

Both the parties filed their respective statements  

inter alia justifying their demand and order of

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termination  passed  against  the  workman.  The  

respondent-management  has  taken  preliminary  

objections contending that Reference is bad in law  

as  necessary  parties  are  not  impleaded  to  the  

order  of  reference,   namely,  Sub  Divisional  

Engineer, Province Sub Division No.8, PWD (B & R)  

Karnal, the claim of the workman is time barred  

and the provisions of the Act are not applicable  

to the respondent-employer. Further, the appellant  

was employed on daily wages muster roll by the  

Divisional Engineer, Provincial Sub-Division No.  

8, PWD (B & R), Karnal, in the month of January,  

1993 and he left the job on his own accord in  

August, 1993 and he has not completed 240 days in  

that Sub Division. It was further pleaded by the  

respondent-employer  that  some  other  daily  wage  

workmen who were working along with him in August,  

1993 continued to work in September, 1993 as well  

and if the workman attended the duty in September,  

1993 there is no reason not to employ him along  

with  others.  Further,  it  was  pleaded  that  in  

October, 1993 the appellant went to another Sub-

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Divisional Officer where some other work was going  

on  and  got  himself  employed  there  afresh  and  

worked up to December, 1993 in Sub-division No.6  

and  again  he  left  the  job  voluntarily  during  

December,  1993  and  therefore,  termination  order  

was not passed by respondent-employer. The number  

of working days of the workman as given in the  

written  statement  that  he  did  not  complete  240  

days  in  any  calendar  year  and  as  such,  the  

provisions of Section 25-F clauses (a) & (b) of  

the Act were not required to be complied with. To  

the said written statement, a reply statement was  

filed by the workman.

 6. On the basis of the pleadings made on behalf of  

the  parties,  five  Issues  were  framed  and  the  

witness Mr. Vipin Sharma on behalf of the employer  

along with the workman was examined by himself to  

prove their respective cases. The workman produced  

Ex 6 WX - Muster Roll of September, 1993 to prove  

his case that he worked for 240 days in a calendar  

year  with  the  respondent-employer  and  the  

Industrial Tribunal-cum-Labour Court on the basis

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of pleadings and evidence on record has recorded  

the finding of fact and answered the issues framed  

by it in the Award in favour of the workman after  

proper  appreciation  of  evidence  on  record.  The  

Industrial Tribunal-cum-Labour Court has recorded  

the finding of fact on issue No. 1 after adverting  

to the evidence of the workman-WW1, who has stated  

in  his  statement  of  evidence  that  he  had  been  

appointed in the respondent-management on monthly  

pay of Rs.1240/-.

 7. He has further stated that he has worked up to  

31.12.1993 and showed that he has worked for more  

than 310 days both in Sub Division Nos. 8 and 6.  

He has produced the Muster Roll in support of his  

contention and further stated that the Executive  

Engineer of both the Sub Divisions is same. He has  

further stated that while terminating his service,  

neither notice nor notice pay in lieu of notice or  

retrenchment compensation was given to him. He has  

further produced the photocopy of the Muster Roll  

Exh. WX showing that he worked for 22 days during  

the month of September, 1993. Therefore, the total

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number  of  days  worked  in  a  calendar  year,  as  

indicated in the written statement filed by the  

respondent-employer  at  para  2,  if  taken  into  

consideration then it will be more than 240 days  

the workman has worked in the establishment of the  

respondent-employer.  The  genuineness  of  the  

document  is  not  questioned  by  the  respondent’s  

counsel  in  the  cross-examination  of  WW-1,  

therefore, the same is accepted and held that the  

workman has worked for more than 240 days during a  

calendar  year  preceding  the  date  of  his  

termination  from  the  services.  Undisputedly,  

retrenchment  compensation  was  not  given  by  the  

respondent-employer  to the appellant contending  

that he is not entitled for the same, as he has  

not  worked  for  240  days,  and  therefore,  the  

question of giving retrenchment compensation does  

not  arise.  The  Industrial  Tribunal-cum-Labour  

Court has also considered the evidence of MW 1 –  

Vipin Sharma, SDO, who had stated in his evidence  

that  the  appellant-workman  had  worked  in  their  

Sub-Division No. 8 from January, 1993 to August,

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1993  and  had  left  the  work  in  the  month  of  

September,  1993.  He  further  stated  that  from  

October, 1993 to December, 1993 he had worked in  

some other Division, which does not fall in the  

National  Highway  Division.  To  this  effect,  no  

documentary  evidence  is  produced.  On  the  other  

hand, the evidence produced by him proves that he  

has  worked  during  the  month  of  September,  1993  

with the respondent-employer which would clearly  

go to show that he has worked for more than 240  

days in the Sub Division and further, the said  

witness of the respondent-employer has stated that  

administrative control of Sub Division No. 6 and  

Sub  Division  No.  8  is  under  the  different  

Executive  Engineer.  He  further  stated  that  

construction  of  National  Highways  and  its  

maintenance  work  is  given  by  the  Ministry  of  

Surface  of  India.  After  adverting  to  the  said  

evidence  of  MW-1  and  the  plea  taken  by  the  

respondent-employer in the written statement that  

the  appellant-workman  has  left  the  job  

voluntarily, therefore, he is not entitled for the

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benefit of Section 25-F clauses (a) and (b) of the  

Act,  is  rightly  rejected  by  the  Industrial  

Tribunal-cum-Labour Court after placing reliance  

upon Civil Writ Petition No. 2375 of 1997 titled  

“Rajpati vs. HUDA” in which the High Court has  

observed that Executive Engineer is the appointing  

and terminating authority of the workmen in both  

the  Sub-Divisions.  Therefore,  the  Industrial  

Tribunal-cum-Labour Court has rightly recorded a  

finding of fact on the basis of evidence on record  

stating that the contention urged on behalf of the  

respondent-employer that the workman has worked in  

two different Sub Divisions is immaterial for the  

reason that the XEN of both the Sub Divisions is  

the  same.  Therefore,  the  issue  No.1  is  rightly  

decided  in  favour  of  the  appellant-workman  and  

against the respondent-employer.

 8. Further, the evidence of Executive Engineer is  

considered, who deposed  in his evidence that he  

has worked as Sewadar with the respondent-employer  

from  January,  1993  to  December,  1993  and  total  

number  of  working  days  in  a  calendar  year  are

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shown  as  310,  the  said  evidence  was  considered  

with reference to the Muster Roll Exbs M-1 to M-8  

produced  by  the  respondent-employer  and  its  

written statement, wherein the respondent-employer  

has categorically stated that in Sub Division No.  

8 Karnal, the workman has worked for 231 days and  

in  view  of  the  Muster  Roll  for  the  month  of  

September, 1993, which is tendered by the workman  

as Exb. WX, who has worked for 22 days during that  

month, therefore, the total number of working days  

in Sub Division No. 8 for the period from January,  

1993  to  September,  1993  and  sub-Division  No.6  

would be 253 days. As the total number of working  

days  are  more  than  240  days,  therefore,  the  

documentary evidence produced by the workman is  

rightly relied upon by the Labour Court and that  

the  workman  has  rendered  more  than  240  days'  

service in the establishment of the respondent is  

established. Hence, it has further held that the  

non-compliance of the provisions of Section 25-F  

clauses (a) and (b) of the Act i.e.  issuance of  

neither  notice  nor  notice  pay  and  payment  of

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retrenchment compensation to the appellant are not  

complied  with,  therefore,  the  labour  court  has  

correctly  held  that  the  termination  of  the  

services  of  the  workman  is  illegal and  

accordingly, the issue No. 1 is answered in favour  

of  the  workman  and  against  the  respondent-

employer.

9. On issue No. 3, after adverting to the case of  

State of Punjab v. Kalidass and Anr. in C.W.P. No.  

1742 of 1996, wherein the High Court has observed  

that the workman cannot be allowed to approach the  

Labour Court after 3 years of termination of his  

services,  upon  which  reliance  placed  by  the  

respondent-employer  with  reference  to  the  said  

plea the Labour Court has rightly placed reliance  

upon the judgment of this Court in Ajaib Singh  v.  

Sirhind  Co-operative  Marketing-cum-Processing  

Service  Society  Ltd.  and  Anr.1 in  which  it  is  

observed by this Court that there is no period of  

limitation  to  the  proceedings  in  the  Act.  

Accordingly, Issue No. 3 is answered against the  

1  (1999) 6 SCC 82

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respondent-management. The relevant paragraph from  

Ajaib Singh's case (supra) are extracted herein  

below:

“10.  It  follows,  therefore,  that  the  provisions  of  Article 137 of  the  Schedule  to  Limitation  Act,  1963  are  not applicable to the proceedings under  the act and that the relief under it  cannot be denied to the workman merely  on  the  ground  of  delay.  The  plea  of  delay  if  raised  by  the  employer  is  required to be proved as a matter of  fact by showing the real prejudice and  not as a merely hypothetical defence.  No reference to the labour court can be  generally questioned on the ground of  delay alone. Even in a case where the  delay  in  shown  to  be  existing,  the  tribunal,  labour  court  or  board,  dealing with the case can appropriately  mould the relief by declining to grant  back wages to the workman till the date  he  raised  the  demand  regarding  his  illegal  retrenchment/  termination  or  dismissal.  The  Court  may  also  in  appropriate cases direct the payment of  part of the back wages instead of full  back wages.....”       

10. On  issue  No.  4,  after  adverting  to  the  

judgment of the High Court in the case of State of  

Punjab v. Hari Dass2, in which it is held that the  

Public Works Department (B & R) is an industry and  

accordingly  the  said  issue  was  also  answered  

2  (1999) 2 RSJ 266

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against the respondent-management.

11. Eventually, the Industrial Tribunal-cum-Labour  

Court  has  rightly  set  aside  the  order  of  

termination passed against the workman and awarded  

reinstatement  in  his  job  with  continuity  of  

service and full back wages to him.

12. The  said  Award  is  challenged  by  the  

respondent-employer  in  Civil  Writ  Petition  No.  

9532 of 2001 urging untenable contentions. In the  

said writ petition, the High Court exercised its  

jurisdiction  contrary  to  the  judgment  of  this  

Court  in  the  case  of  Syed  Yakoob  v. K.S.  

Radhakrishnan & Ors.3 and also the judgment, which  

was referred to in the case of Harjinder Singh  v.  

Punjab State Warehousing Corporation4. The learned  

counsel  for  the  appellant  has  aptly  placed  

reliance upon another judgment of Anoop Sharma v.  

Executive Engineer, Public Health Division   No.1,  

Panipat  (Haryana)5 in  support  of  her  legal  

submissions that both the learned Single Judge and  

3  (1964) 5 SCR 64 4  (2010) 3 SCC 192 5  (2010) 5 SCC 497

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the Division Bench of the High Court have erred in  

exercising their supervisory power under Article  

227 of the Constitution of India in setting aside  

the finding of fact recorded on the facts based on  

the pleadings and evidence on record.

  Further  in  the  case  of  Harjinder  Singh  v.  

Punjab  State  Warehousing  Corporation (supra),  

wherein this Court opined on the exercise of power  

by  the  High  Court  under  Article  227  of  the  

Constitution of India as under:-

“21.  Before  concluding,  we  consider  it  necessary to observe that while exercising  jurisdiction under Articles 226 and/or 227  of  the  Constitution  in  matters  like  the  present one, the High Courts are duty bound  to  keep  in  mind  that  the  Industrial  Disputes Act and other similar legislative  instruments are social welfare legislations  and the same are required to be interpreted  keeping in view the goals set out in the  preamble  of  the  Constitution  and  the  provisions contained in Part IV thereof in  general and Articles 38, 39(a) to (e), 43  and 43A in particular, which mandate that  the State should secure a social order for  the  promotion  of  welfare  of  the  people,  ensure equality between men and women and  equitable  distribution  of  material  resources of the community to sub-serve the  common  good  and  also  ensure  that  the  workers get their dues. More than 41 years

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ago, Gajendragadkar, J, opined that:- "the concept of social and economic  justice  is  a  living  concept  of  revolutionary  import;  it  gives  sustenance to the rule of law and  meaning  and  significance  to  the  ideal of welfare State" - State of  Mysore  v.  Workers  of  Gold  Mines  AIR 1958 SC 923.”

13. In view of the aforesaid statement of law the  

setting aside of the Award by the learned Single  

Judge which is affirmed by the Division Bench is  

vitiated in law as the same is contrary to the  

judgments of this Court referred to supra, upon  

which the learned counsel for the appellant has  

rightly  placed  reliance  in  support  of  the  

correctness of the finding recorded by the labour  

court  on  the  various  issues,  particularly  the  

finding of fact that the workman has worked for  

more  than  240  days  in  a  calendar  year  and  

termination order is  void ab initio in law for  

non-compliance of Sections 25-F (clauses (a) and  

(b)), 25-G and 25-H of the Act, therefore, the  

Industrial Tribunal-cum-Labour Court has rightly  

set aside the order of termination of services of  

the workman and awarded the order of reinstatement

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with continuity of service and full back wages.  

The  said  relief  in  favour  of  the  appellant-

workman,  particularly  the  full  back  wages  is  

supported  by  the  legal  principles  laid  down  by  

this Court in the case of  Deepali Gundu Surwase  

v. Kranti Junior Adhyapak Mahavidyalaya (D. ED.) &  

Ors.6, wherein the Division Bench of this Court to  

which one of us was a member, after considering  

three-Judge Bench decision, has held that if the  

order  of  termination  is  void  ab  initio,  the  

workman  is  entitled  to  full  back  wages.  The  

relevant  para  of  the  decision  is  extracted  

hereunder:-

“22. The very idea of restoring an  employee  to  the  position  which  he  held before dismissal or removal or  termination of service implies that  the employee will be put in the same  position in which he would have been  but for the illegal action taken by  the employer. The injury suffered by  a  person,  who  is  dismissed  or  removed  or  is  otherwise  terminated  from  service  cannot  easily  be  measured in terms of money. With the  passing  of  an  order  which  has  the  effect  of  severing  the  employer  employee  relationship,  the  latter's  source of income gets dried up. Not  

6  (2013) 10 SCC 324

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only the concerned employee, but his  entire  family  suffers  grave  adversities.  They  are  deprived  of  the  source  of  sustenance.  The  children are deprived of nutritious  food  and  all  opportunities  of  education  and  advancement  in  life.  At times, the family has to borrow  from  the  relatives  and  other  acquaintance  to  avoid  starvation.  These  sufferings  continue  till  the  competent adjudicatory forum decides  on the legality of the action taken  by  the  employer.  The  reinstatement  of  such  an  employee,  which  is  preceded  by  a  finding  of  the  competent  judicial/quasi  judicial  body or Court that the action taken  by  the  employer  is ultra  vires the  relevant statutory provisions or the  principles  of  natural  justice,  entitles the employee to claim full  back wages. If the employer wants to  deny back wages to the employee or  contest  his  entitlement  to  get  consequential  benefits,  then  it  is  for  him/her  to  specifically  plead  and  prove  that  during  the  intervening period the employee was  gainfully  employed  and  was  getting  the same emoluments. Denial of back  wages  to  an  employee,  who  has  suffered  due  to  an  illegal  act  of  the  employer  would  amount  to  indirectly  punishing  the  concerned  employee and rewarding the employer  by relieving him of the obligation  to  pay  back  wages  including  the  emoluments.”

In the circumstances, the appeal is allowed,  

the judgment & order passed by the learned Single

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Judge in C.W.P. No. 9532/2001 which is affirmed by  

the Division Bench of the High Court in L.P.A. No.  

2245/2011 in its judgment and order are set aside  

and  the  Award  of  the  Industrial  Tribunal-cum-

Labour Court is restored. The respondent-employer  

is directed to comply with the Award within six  

weeks from the date of receipt of a copy of this  

order and send a report to this Court. The appeal  

is allowed with cost of Rs.25,000/- payable to the  

appellant-workman by the respondent employer.

………………………………………………………J.                                   [V.GOPALA GOWDA]

 ………………………………………………………J.                                   [C.NAGAPPAN]    

NEW DELHI, JANUARY 13, 2015