Holding

The appellant, having completed more than 240 days of continuous service, is a workman protected by Section 25F, and his termination without notice or compensation is illegal; the High Court's setting aside of the Labour Court award was erroneous.

Summary

Ramesh Kumar was appointed on a casual basis as a Mali in the Haryana Public Works Department in December 1991 and was terminated on 31 January 1993 without any notice or retrenchment compensation. He claimed that he had worked more than 240 days in the preceding 12 months, invoking the protection of Section 25F of the Industrial Disputes Act, 1947, and filed an industrial dispute. The Labour Court held that he was a "workman" under the Act, that his termination violated Section 25F, and awarded reinstatement with continuity of service and 50% back wages. The Punjab and Haryana High Court set aside that award. On appeal, the Supreme Court held that the appellant satisfied the 240‑day criterion, was a workman, and his termination without notice or compensation was illegal; the High Court should not have interfered with the Labour Court's factual findings. Consequently, the Supreme Court set aside the High Court order and restored the Labour Court award, allowing the appeal.

Issues considered

Whether the appellant qualifies as a "workman" under Section 2(s) of the Industrial Disputes Act, 1947.
Whether the termination of a casual employee who has completed 240 days of service in a calendar year requires compliance with Section 25F of the Act.
Whether the High Court was justified in setting aside the Labour Court's award of reinstatement and back wages.
Whether the objection that the initial appointment violated recruitment rules is maintainable at this stage.

Legislation cited

Industrial Disputes Act, 1947s. 25F, s. 2(oo), s. 2(s)

Subjects

industrial disputeworkmanretrainingSection 25Fcasual employeereinstatementback wagesdiscriminationrecruitment rules

Judgment

[2010] 1 S.C.R. 532

A RAMESH KUMAR
v.
STATE OF HARYANA
. (Civil Appeal No. 229 of 2010)
JANUARY 13, 2010
B
[P. SATHASIVAM AND H.L. DATIU, J.]

Industrial Disputes Act, 1947 - s. 2(00), 2(s) and 25F -
Workman employed on casual basis - Termination of his
c service without notice or retrenchment compensation -
Industrial dispute raised - Award by labour court reinstating
him with continuity of service and with back wages - Award
set aside by High Court - On appeal, held: The workman had
continuous service of 240 days in a calender year- Similarly
o placed persons were regularized - Employee in question was
a 'workman' u/s. 25(s) - Termination of his service was in
contravention of s. 25F - The plea that initial appointment of
the workman was contrary to recruitment rules not applicable
in the facts of the case - The plea also cannot be allowed,
E since it was raised for the first time before High Court.
Appellant was appointed on casual basis in a State
Government Department. His service was terminated
without any notice or retrenchment compensation. On
coming to know that persons similarly appointed were
F either allowed to continue or regularized, appellant raised
industrial dispute. Labour court passed the award
holding that the workman had worked with the
Department for a period of more than 240 days within 12
calendar months preceding the date of termination; aild
G that since s. 25F of Industrial Disputes Act, 1947 was not
complied with, he was entitled to reinstatement.
Reinstatement was directed with continuity of service
with 50% back wages. High Court set aside the award.
Hence, the present appeal.
H 532
RAMESH KUMAR v. STATE OF HARYANA 533

Allowing the appeal, the Court · · A
HELD: 1. The materials placed by the appellant
before the labour court clearly show that he had worked
for three years and there was no break during his service
tenure. He was -issued identity card to work in the
residence of the Chief Minister and no reason was given B
for his termination. It is also his case that there was no
show cause notice and no inquiry was conducted. The
Labour Court rightly found that the workman has
continuously worked from December 1991 to January,
1993. It also found that the workman worked for 240 days C
with the Department within 12 calendar months preceding
his date of termination. (Para 10) (536-G-H; 537-8-C]
2. It is not in dispute that the appellant is a
"workman" as defined under Section 2{s) of Industrial
Disputes Act, 1947 and "retrenchment" if any, it should D
be in accordance with Section 25F of the Act. In the
instant case, the workman was not given any notice or
pay in lieu of notice or retrenchment compensation at the
time of his retrenchment. In view of the same, the labour
court has correctly concluded that his termination is in E
contravention of the provisions of Section 25F of the Act.
[Para 10) (538-D-E; 538-E-F] .
3. The appellant alone was singled out and
discriminated. Identical awards passed in the case of
three other workmen was upheld by the High Court and F
the award in favour of the appellant alone was quashed
by the High Court in the second round of litigation.
Though, it was contended that the initial appointment of
the appellant was contrary to the recruitment rules and
constitutional scheme of employment, admittedly, the G
said objection was not raised by the Department either
before the labour court or before the High Court at the
first instance. It was only for the first time that they raised
the said issue before the High Court when the matter was
remitted to it that too the same was raised only during the H
534 SUPREME COURT REPORTS [201 O] 1 S.C.R.

A arguments. In such circumstances, the High Court ought
not to have interfered with the factual finding rendered
by the labour court and in view of the different treatment
to other similarly placed workmen, the Department ought
not to have challenged the order of the labour court. [Para
B 12] [541-C; 541-E-G]
4. An appointment on public post cannot be made in
contravention of recruitment rules and constitutional
·scheme of employment. However, in view of the materials
placed before the labour court and in this Court, the said
c principle would not apply in the case on hand. The
appellant has not prayed for regularization but only for
reinstatement with continuity of service for which he is
legally entitled to. In the case of termination of casual
employee what is required to be seen is whether a
0 workman has completed 240 days in the preceding 12
months or not. If sufficient materials are shown that
workman has completed 240 days then his service
cannot be terminated without giving notice or
compensation in lieu of it in terms of Section 25F. The
E High Court failed to appreciate that in the present case
appellant has completed 240 days in the preceding 12
months and no notice or compensation in lieu of it was
given to him, in such circumstances his termination was
illegal. [Para 13] [542-B-E]
F CIVIL APPELLATE JURISDICTION: Civil Appeal No. 229
of 2010.
From the Judgment & Order dated 23.12.2008 of the High
Court of Punjab & Haryana at Chandigarh in CWP No. 575 of
2004.
G Y.P. Rangi, B.K. Satija for the Appellant.
Manjit Singh, Kamal Mohan Gupta for the Respondent.
The Judgment of the Court was delivered by
P. SATHASIVAM, J. 1. Leave granted.
H
RAMESH KUMAR v. STATE OF HARYANA 535
[P. SATHASIVAM, J.]
2. This appeal is directed against the judgment and final A
order dated 23.12.2008 passed by the High Court of Punjab
and Haryana at Chandigarh in CWP No. 575 of 2004 whereby
the High Court allowed the writ petition filed by the State of
Haryana.
8
3. According to the appellant, in December, 1991, he was
appointed as Mali on casual basis in Public Works Department
(B & R) Haryana and worked at the Chief Minister's residence.
On 31.01.1993, his service was terminated without any notice
or retrenchment compensation as provided in the Industrial
Disputes Act, 1947 (hereinafter referred to as "the Act"). After C
knowing that persons similarly appointed were either allowed
to continue or regularized by the Department, the appellant sent
a notice to the respondent. Since the Department declined to
accede to his request, appellant made a Reference No. 81 of
1999 before the Labour Court, Union Territory, Chandigarh. He D
pleaded before the Labour Court that he had completed more
than 240 days of service and all along he was performing his
duties at the residence of the Chief Minister, Haryana. The
Government has made a policy that persons who have
completed 240 days of service may be regul~rized, however, E
instead of regularization of his services, he was terminated
w.e.f. 31.01.1993. He prayed before the Labour Court for
setting the order of termination of his service and for an award
for reinstatement with full back-wages.
4. It is the case of the Department that the workman has F
not completed 240 days of service except in the year 1992. He
has not fulfilled the cin:;ular dated 27th May, 1993 entitling him
for regularization of his service. Further, the Government has
not framed any policy to regularize the service of persons who
have completed 240 days as claimed. G
5. Before the Labour Court, the workman himself was
examined as AW-1. On the side of the Department, one Junior
Engineer was examined as MW-1. On consideration of the
materials placed, the Labour Court, by award dated H
536 SUPREME COURT REPORTS [2010] 1 S.C.R.

A 10.02.2003, has arrived at a conclusion that the workman has
worked with the Department for a period of more than 240
days within 12 calendar months preceding the date of
termination i.e. 31.01.1993, and in view of non-compliance of
Section 25F of the Act, he is entitled to reinstatement. The
s Labour Court has also directed reinstatement with continuity of
service with 50 per cent back-wages from the date of
termination. With the above direction, reference was accepted
and answered in the affirmative.
6. Aggrieved by the said award of the Labour Court, the
C State of Haryana challenged the same in CWP No. 575 of 2004
before the Punjab and Haryana High Court. By the impugned
order dated 23.12.2008, the High Court set aside the award
of the Labour Court granting reinstatement and back-wages,
consequently allowed the writ petition.
D
7. Questioning the said decision of the High Court, the
workman has filed the present appeal by way of special leave.
8. Heard learned counsel for the appellant-workman as well
as learned counsel for the respondent-State of Haryana.
E
9. The only point for consideration in this appeal is whether
the High Court was justified in setting aside the award of the
Labour Court when the appellant had established that he was
in continuous service for a period of 240 days in a calendar
F year, particularly, when similarly placed workmen were
regularized by the Government.
10. It is not in dispute that the appellant was appointed as
a Mali and posted at the residence of the Chief Minister in the
year 1991. The materials placed by the appellant before the
G Labour Court clearly show that he had worked for three years
and there was no break during his service tenure. He was
issued identity card to work in the residence of the Chief
Minister and no reason was given for his termination. It is also
his case that there was no show cause notice and no inquiry
H was conducted. The perusal of the order of the Labour Court
RAMESH KUMAR v. STATE OF HARYANA 537
[P. SATHASIVAM, J.]
clearly shows that one Shri Nasib Singh, Junior Engineer, who A
deposed as MW-1 on behalf of the Department has
categorically stated that the workman was engaged by the
Department on muster rolls as Mali in December, 1991 and he
worked up to 31.01.1993. He also stated that there was no
break from December, 1991 to January, 1993 during which the B
workman was engaged. The Labour Court as per the materials
placed rightly found that the workman has continuously worked
from December 1991 to 31.01.1993. It also found that the
workman worked for 240 days with the Department within 12
calendar months preceding his date of termination i.e. c
31.01.1993. It is useful to refer the definition of "retrenchment"
and "workman" in the Act which reads thus:

"2 (oo) "retrenchment" means the termination by the
employer of the service of a workman for any reason
whatsoever, otherwise than as a punishment inflicted by D
way of disciplinary action, but does not include ...... ."
2 (s) "workman" means any person (including an
apprentice) employed in any industry to do any manual,
unskilled, skilled, technical, operational, clerical or E
supervisory work for hire or reward, whether the terms of
employment be express or implied, and for the purposes
of any proceeding under this Act in relation to an industrial
dispute, includes any such person who has been
dismissed, discharged or retrenched in connection with,
F
or as a consequence of, that dispute, or whose dismissal,
discharge or retrenchment has led to that dispute, but does
not include any such person ............ ."
25F. Conditions precedent to retrenchment of workmen.
No workman employed in any industry who has been in G
continuous service for not less than one year under an
employer shall be retrenched by that employer until-
(a) the workman has been given one month's notice in
H
538 SUPREME COURT REPORTS [2010] 1 S.C.R.

A writing indicating the reasons for retrenchment and the
period of notice has expired, or the workman has been
paid in lieu of such notice, wages for the period of the
notice;

(b) the workman has been paid, at the time of
B
retrenchment, compensation which shall be equivalent to
fifteen days' average pay for every completed year of
continuous service or any part thereof in excess of six
months; and

c (c) notice in the prescribed manner is served on the
appropriate Government or such authority as may be
specified by the appropriate Government by notification in
the Official Gazette."

It is not in dispute that the appellant is a "workman" as defined
D under Section 2 (s) and "retrenchment" if any it should be in
accordance with Section 25F of the Act. Admittedly, in the case
on hand, the workman was not given any notice or pay in lieu
of notice or retrenchment compensation at the time of his
retrenchment. In view of the same, the Labour Court has
E corre.ctty concluded that his termination is in contravention of
the provisions of Section 25 F of the Act. Though the
DtJ)1f1ment has relied on a circular, the Labour Court on going
through the same rightly concluded that the same is not
applicable to the case of the retrenchment.
F
11. In addition to the factual conclusion by the Labour .
Court, namely, continuance for a period of 240 days in a
calendar year preceding his termination, the appellant has also
placed relevant materials to show that persons similarly situated
have already been reinstated and their services have been
G regularized. It is his grievance that appellant alone has been
meted out with the hostile discrimination by the Department. He
also highlighted that in respect of some of the workmen who
were appointed and terminated, after similar awards passed

H
S. Name Labour Present ~
I
High Supreme
m
s::
No. Court Court Court Status (/)
::r
1. Gurbax Singh Claim allowed . No writ petition No SLP filed Reinstated on ;ii;:
-c
filed 19.06.2004. Service :0 s::
(/) )>
regularized w.e.f. )> :::0
'-I '<::
01.07.2004 ::r .
)> (/)
2. Mast Ram Claim allowed Writ petition filed SLP filed by Reinstated on (/) ;;!
~ '-I
by respondents, the respondents, 19.06.2004. Service s:: m
dismissed also dismissed. regularized - 0
c.... "Tl
.:..... ::r
3. Rajesh Kumar Claim allowed Writ petition filed SLP filed by Reinstated. Service )>
:::0
by respondents, the respondents, regularized. ~
- dismissed also dismissed. z
)>
.

4. Paramjit Kumar Claim allowed Writ petition filed SLP filed by Reinstated. Service
by respondents, the respondents, regularized.
dismissed also dismissed.
5. Ramesh Kumar Claim allowed In 1st round Writ SLP filed by the Reinstated on
(Petitioner) petition filed by respondents, 18.06.2004 but en
respondents, matter remitted service not c
-0
;:o
dismissed back. regularized. m
In 2nd round writ Now petitioner s::
m
petition was has filed the ()
0
allowed. present writ c
;:o
petition. -I
;:o
m
-0
0
~
en

"3
0
......
.9
......
en
()
;:o
RAMESH KUMAR v. STATE OF HARYANA 541
[P. SATHASIVAM, J.]
by the Labour Court, the Management did not challenge the A
same before the High Court by filing writ petitions.· He also
pointed out that in some cases where a challenge was made
before the High Court by filing writ petitions however, after
dismissal of the writ petitions those persons were reinstated.
In fact, according tci the appellant some of them were even 8
regularized. The details of other identically situated persons are
as on page 540.
12. The perusal of all these details clearly shows that the
appellant alone was singled out and discriminated. We have
already noted the specific finding of the Labour Court that the C
appellant had fulfilled 240 days in a calendar year before the
order of termination. The appellant has also highlighted that he
is the sole bread earner of his family and his family consists of
his old mother, wife and two minor sons and a minor daughter.
The above-mentioned chart also shows that identical awards D
passed in the case of Mast Ram, Rajesh, Paramjit and Amarjit
was upheld by the High Court and the award in favour of the
appellant alone was quashed by the High Court in the second
round of litigation. Though, it was contended that the initial
appointment of the appellant was contrary to the recruitment E
rules and constitutional scheme of employment, admittedly, the
said objection was not raised by the Department either before
the Labour Court or before the High Court at the first instance.
It was only for the first time that they raised the said issue
before the High Court when the matter was remitted to it that F
too the same was raised only during the arguments. In such
circumstances, the High Court ought not to have interfered with
the factual finding rendered by the Labour Court and in view of
the different treatment to other similarly placed workmen the
Department ought not to have challenged the order of the G
Labour Court. In addition to the above infirmities, the appellant
has also pointed 'out that one Gurbax Singh who was engaged
subsequent to the appellant on casual basis has challenged his
termination order, which was quashed by the Labour Court;
interestingly the Department did not challenge the award of the H
542 SUPREME COURT REPORTS [2010] 1 S.C.R.

A Labour Court by filing writ petition. It was also highlighted by
the appellant that on the basis of the award, Gurbax singh was
not only taken back in service but his services were regularized
w.e.f. 01.07.2004.
13. We are conscious of the fact that an appointment on
8
public post cannot be made in contravention of recruitment rules
and constitutional scheme of employment. However, in view of
the materials placed before the Labour Court and in this Court,
we are satisfied that the said principle would not apply in the
case on hand. As rightly pointed out, the appellant has not
C prayed for regularization but only for reinstatement with
continuity of service for which he is legally entitled to. It is to be
noted in the case of termination of casual employee what is
required to be seen is whether a workman has completed 240
days in the preceding 12 months or not. If sufficient materials
D are shown that workman has. completed 240 days then his
service cannot be terminated without giving notice or
compensation in lieu of it in terms of Section 25F. The High
Court failed to appreciate that in the present case appellant has
completed 240 days in the preceding 12 months and no notice
E or compensation in lieu of it was given to him, in such
circumstances his termination was illegal. All the decisions
relied on by the High Court are not applicable to the case on
hand more particularly, in view of the specific factual finding by
the Labour Court.
F 14. Under these circumstances, the impugned order of the
High Court dated 23.12.20Q8 passed in CWP No. 575 of 2004
is set aside. It is not in dispute that the appellant-workman is
continuing in service and learned counsel representing him fairly
stated that he is willing to forego back-wages as awarded by
G the Labour court, the same is recorded. Consequently, the civil
appeal filed by the workman is allowed to the extent mentioned
above. No costs.
K.K.T. Appeal allowed.