Superintending Engineer, Yamuna Water Service, Circle Bhiwani And Another vs Mukesh Kumar And Others
- Court
- Punjab and Haryana High Court
CWP No.25104 of 2017 (O&M) -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
113+227 CM-20268-2026 in/and CWP No.25104 of 2017 (O&M)
Date of Decision: 02.11.2026
SUPERINTENDING ENGINEER, YAMUNA WATER SERVICE,
CIRCLE BHIWANI AND ANOTHER
....Petitioners
Versus
MUKESH KUMAR AND OTHERS
....Respondents
CORAM: HON'BLE MS. JUSTICE KIRTI SINGH
Present: Mr. Chirag Wadhwa, Advocate for the petitioners.
Mr. Sandeep Thakan, Advocate
for respondent No.1-workman.
KIRTI SINGH, J. (ORAL)
CM-20268-2026
This application has been filed on behalf of respondent No.1-
workman under Section 151 of the Code of Civil Procedure, 1908, read with
Articles 226/227 of the Constitution of India, seeking permission to place on
record Annexures R-1 to R-6. For the reasons stated in the application, the
same is allowed and Annexures R-1 to R-6 are taken on record, subject to all
just exceptions.
MAIN CASE
1. The present writ petition has been filed under Articles 226/227
of the Constitution of India seeking quashing of the Award dated 16.03.2017
(Annexure P-3) passed by the learned Presiding Officer, Industrial Tribunal-
cum-Labour Court, Hisar in Reference No.11 of 2015, whereby the
SWARNJIT SINGH
reference raised by respondent No.1-workman was answered in his favour
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and the petitioners were directed to reinstate him within two months of the
publication of the Award with continuity in service and all other
consequential benefits, except back wages.
2. Briefly stated, as per the pleaded case of respondent No.1-
workman, he was engaged as a Clerk on D.C. rates with effect from
26.11.2010 and was posted in the office of the S.D.O., Water Services Sub-
Division, Bawani Khera. It is his case that he was initially engaged for 89
days, but his services were extended from time to time and he worked
continuously till 31.01.2012. It is his further case that on 01.02.2012 he was
not allowed to join duty and was verbally informed that his services were no
longer required, without issuance of any notice or payment of notice pay or
retrenchment compensation, in violation of Sections 25-F, 25-G and 25-H of
the Industrial Disputes Act, 1947 (for short, ‘the Act’). It was also pleaded
that more than 200 workers were working with the petitioners at the relevant
time, that persons junior to him were retained and fresh appointments were
made, and that wages were paid through bills and plain papers in order to
conceal his actual working details. Aggrieved thereby, the workman served a
demand notice dated 03.12.2014 and thereafter filed his claim statement
dated 08.05.2015 (Annexure P-1) under Section 2-A of the Act, on which
Reference No.11 of 2015 came to be registered.
3. The claim was contested by the petitioners, who pleaded in their
written statement (Annexure P-2) that the services of the workman were
never hired directly and were obtained from M/s Jai Hind Security Services,
Bhiwani (respondent No.2 in the present petition) on outsource basis for 89
days on D.C. rates. It was further pleaded that the remuneration was paid
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through the said agency, that after every period of 89 days fresh sanction
was obtained and the agency was asked to provide someone, and that the
process continued till 30.11.2011, when the sanction for engaging employees
on D.C. rates and outsource basis was withdrawn. The petitioners also
pleaded that there was no direct contract between the workman and the
department, that he did not possess the requisite qualification for the post of
Clerk and that he was seeking a back-door entry into service. The agency, in
its written statement, however, pleaded that the workman was directly
appointed by the petitioners, that it was made the paying agency of wages
only and that the workman never remained its employee. On the pleadings of
the parties, the learned Labour Court framed the issue whether the
termination of the services of the workman was legal and, if not, to what
relief he was entitled. Both sides thereafter led their respective evidence.
4. The learned Labour Court noticed that the provisions of Section
25-N of the Act were not attracted, as fairly conceded by the workman.
Upon consideration of the office noting dated 25.11.2010 (Ex.W1), the
sanction letters (Ex.W2 to Ex.W5), the attendance register (Ex.W7) and the
testimony of MW1, a witness examined by the petitioners, the learned
Labour Court concluded that the workman had been appointed on the
recommendation of the Superintending Engineer on D.C. rates; his
attendance was marked by the Junior Engineer and verified by the Sub
Divisional Officer; and he worked under the supervision of the officers of
the department. It was also noticed that no Clerk had been appointed by way
of outsourcing in the Circle, that there was no contract between the
department and the agency and that no notice, notice pay or retrenchment
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compensation had been paid to the workman. The plea of outsourcing was,
accordingly, rejected. The learned Labour Court further held that the
workman had worked from 26.11.2010 till 31.01.2012 with notional breaks
of one or two days and had completed 240 days in the twelve months
preceding his termination. Consequently, holding that there was non-
compliance with Section 25-F of the Act, reinstatement with continuity in
service and all other consequential benefits was directed. Back wages,
however, were declined, keeping in view the delay of about three years in
serving the demand notice and the absence of evidence that the workman
had remained without a job.
5. The petitioners have assailed the Award on the grounds, inter
alia, that the learned Labour Court did not frame a specific issue as to
whether respondent No.1 was a ‘workman’; that the petitioner-department
does not fall within the definition of ‘industry’; that the finding regarding
absence of a contract with the agency is contrary to the record; and that
every engagement for 89 days, after obtaining fresh sanction, constituted a
separate engagement. It is, thus, contended that the successive periods of
engagement could not have been clubbed together to conclude that the
workman had completed 240 days of service. The petitioners further contend
that there was no violation of Section 25-F of the Act and that a temporary or
daily-rated employee has no right to regularisation or to continue in service.
6. Per contra, learned counsel for respondent No.1-workman
submits, as also averred in CM-20268-2026, that the case of respondent
No.1 stands on an identical footing with that of Rajender Kumar, a
Chowkidar engaged in the same Sub-Division, whose reference (Reference
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No.10 of 2015) was decided by the same learned Labour Court by an Award
of the same date, on the same defence of outsourcing and on the testimony
of the same witness. It is submitted that the writ petition filed by the
petitioners against that Award, being CWP No.25587 of 2017, was dismissed
by this Court on 10.07.2024 (Annexure R-2), and that pursuant thereto the
State of Haryana has reinstated Rajender Kumar and ported his services to
the Haryana Kaushal Rozgar Nigam (Annexures R-3 and R-4). It is,
therefore, contended that the petitioners cannot continue to resist the Award
passed in the case of respondent No.1 on the same facts and the same
reasoning. Reliance is also placed upon the judgment of the Hon’ble
Supreme Court dated 23.09.2022 passed in Civil Appeal No.6890 of 2022
(Annexure R-6).
7. I have heard learned counsel for the parties and perused the
relevant material on record.
8. The scope of interference by this Court in exercise of its
jurisdiction under Articles 226/227 of the Constitution of India against an
Award passed by the Labour Court is well defined. This Court does not sit as
an appellate authority over the findings recorded by the Labour Court, nor is
it expected to re-appreciate the entire evidence merely because another view
may be possible. Interference is warranted where the findings are perverse,
are based on no evidence, or suffer from an error of law apparent on the face
of the record. The question, therefore, is not whether this Court would have
arrived at a different conclusion on an independent appreciation of the
evidence, but whether the conclusion reached by the learned Labour Court
suffers from any such infirmity as would warrant interference in the exercise
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of supervisory jurisdiction.
9. The principal defence set up by the petitioners before the
learned Labour Court was that respondent No.1 had been engaged through
an outsourcing agency and, therefore, no employer-employee relationship
existed between the department and the workman. The evidence led by the
petitioners themselves, however, does not support this stand. MW1 admitted
that the workman had been appointed on the recommendation of the
Superintending Engineer on D.C. rates; that his attendance was marked by
the Junior Engineer and verified by the Sub Divisional Officer; that no Clerk
had been appointed by way of outsourcing in the Circle; and that there was
no contract between the department and the agency for supply of clerks and
other employees. He further admitted that the workman was working under
the supervision of the Junior Engineer and other officers of the department
and that the engagement was not made in accordance with the outsourcing
policy. These admissions assume significance when considered alongside the
contemporaneous office noting dated 25.11.2010 (Ex.W1), the sanction
letters (Ex.W2 to Ex.W5) and the attendance register (Ex.W7).
10. The stand taken by the agency also lends support to the
conclusion reached by the learned Labour Court. MW2, appearing on behalf
of the agency, stated that the workman was neither engaged nor removed by
the agency and that the agency was merely disbursing the amount received
from the department. In these circumstances, the mere fact that certain bills
were raised through the agency or that payments were routed through it
could not, by itself, establish that the workman was its employee,
particularly when no agreement or contract for supply of clerical staff was
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produced. The learned Labour Court has, thus, not rejected the plea of
outsourcing on conjecture or on the mere assertion of the workman. Its
conclusion is founded upon the documentary evidence as well as the
admissions made by the witnesses examined on behalf of the petitioners and
the agency. The finding that the plea of outsourcing was not established and
that the workman was, in fact, working under the control and supervision of
the departmental officers cannot, therefore, be termed perverse or
unsupported by the record.
11. The next contention relates to the finding that the workman had
completed 240 days of service in the twelve months preceding the date of
termination. In R ange Forest Officer v. S.T. Hadimani, (2002) 3 SCC 25,
the Hon’ble Supreme Court held that a mere statement or affidavit of the
workman would not, by itself, be sufficient to discharge the burden of
proving completion of 240 days. The said principle was reiterated in
Surendranagar District Panchayat v. Dahyabhai Amarsinh, (2005) 8 SCC
750. There can be no quarrel with the proposition that the initial burden of
establishing the requisite period of service rests upon the workman.
However, the present case is not one where the finding of completion of 240
days rests merely upon the oral assertion of respondent No.1.
12. In the present case, the attendance register (Ex.W7) records the
presence of the workman with effect from 26.11.2010. The sanction letters
(Ex.W2 to Ex.W5) reflect successive periods of engagement, the last of
which extended up to 19.02.2012. The learned Labour Court, upon
consideration of the said documents and the evidence led before it, recorded
a finding that the workman had continued to work till 31.01.2012, with
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notional breaks of one or two days. The petitioners have not been able to
demonstrate that this finding is contrary to the documentary evidence or that
the material relied upon by the learned Labour Court was incapable of
supporting its conclusion. The plea that every period of 89 days constituted a
fresh and independent engagement also has to be examined in the backdrop
of the manner in which the workman was actually engaged and the nature of
the duties performed by him. The evidence noticed hereinabove shows that
he continued to work as a Clerk in the same Sub-Division, under the
supervision of the departmental officers, and that the breaks were merely
notional. The petitioners have not been able to point out any material which
would render the finding of the learned Labour Court regarding completion
of 240 days perverse or based on no evidence. The ratio of the judgments
relied upon by the petitioners, therefore, does not advance their case on the
facts of the present matter.
13. Once the finding regarding completion of 240 days is found to
be supported by the evidence on record and the plea that the workman was
engaged through an outsourcing agency has not been established, the
consequence of non-compliance with Section 25-F of the Act follows. The
petitioners have not disputed that no notice or notice pay and no
retrenchment compensation were paid to the workman at the time his
services were discontinued. The learned Labour Court was, therefore,
justified in holding that the termination was in violation of the statutory
mandate contained in Section 25-F of the Act.
14. The objection that respondent No.1 was not a ‘workman’ and
that the department did not fall within the definition of ‘industry’ also does
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not persuade this Court to interfere with the Award. These objections were
taken in the written statement, but the petitioners have not demonstrated
from the material placed before this Court as to how the findings recorded
by the learned Labour Court on the actual nature of engagement and the
evidence led by the parties stand vitiated on this account. The petitioners
have referred to a decision of a Division Bench of this Court for the
proposition that the department does not fall within the ambit of ‘industry’;
however, neither the title nor the citation of the said decision has been
specified in the material placed before this Court so as to enable its
examination. The further contention that a temporary or daily-rated
employee has no right to regularisation is also misplaced. The impugned
Award does not direct regularisation of respondent No.1. It grants
reinstatement with continuity in service and consequential benefits on
account of the finding that the termination was in violation of Section 25-F
of the Act. The question of regularisation is, therefore, distinct from the
relief actually granted by the learned Labour Court.
15. There is also material placed on record by respondent No.1 by
way of CM-20268-2026 which is relevant to the controversy. It is pointed
out that the case of Rajender Kumar, a Chowkidar engaged in the same Sub-
Division, arose out of a similar defence of outsourcing and was decided by
the same learned Labour Court on 16.03.2017. The writ petition filed by the
present petitioners against the said Award, being CWP No.25587 of 2017
titled Executive Engineer, Bhiwani Water Services Division, Bhiwani and
another v. Rajender Kumar and others , was dismissed by this Court vide
judgment dated 10.07.2024 (Annexure R-2). In the said case, this Court
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considered the material relating to the alleged outsourcing arrangement and
noticed that there was no material to establish that the workman therein was
an employee of the outsourcing agency. The findings of the learned Labour
Court were not interfered with, particularly in view of the statements made
by the witnesses appearing on behalf of the management itself. The said
decision is not being treated as a substitute for an independent examination
of the evidence in the present case; however, it is a relevant circumstance,
particularly when the petitioners have not pointed out any material
distinction in the underlying arrangement or the defence set up by them.
16. It is further borne out from Annexures R-3 and R-4 that,
pursuant to the dismissal of the writ petition in the case of Rajender Kumar,
the Additional Chief Secretary to Government of Haryana allowed his
reinstatement as Chowkidar and the porting of his services to the Haryana
Kaushal Rozgar Nigam vide memo No.5/3/2025-41-W dated 21.03.2025.
The proforma for HKRN Employee Detail, signed by the Executive
Engineer, Bhiwani Water Services Division, Bhiwani and the Sub Divisional
Officer, records his year-wise attendance from 01.11.2010 without any break
in service. This subsequent material is relevant to the extent that it reflects
the action taken by the department in respect of a similarly placed employee
after the Award in his favour had attained finality. Though the said
administrative arrangement does not, by itself, confer upon respondent No.1
an independent right to be ported to HKRN, it lends further support to his
contention that the petitioners have not shown any distinguishing feature
warranting a different view in his case. The petitioners have not been able to
point out any such distinction in the nature of engagement, the defence of
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outsourcing or the evidence which would justify interference with the Award
under challenge.
17. In view of the aforesaid discussion, this Court is of the
considered view that the learned Labour Court has arrived at its conclusions
on the basis of the documentary evidence and the admissions emerging from
the testimony of the witnesses examined by the petitioners and the agency.
The findings regarding the nature of engagement, the absence of an
established outsourcing arrangement, completion of 240 days and non-
compliance with Section 25-F of the Act cannot be said to be perverse, based
on no evidence or vitiated by an error of law apparent on the face of the
record. No ground is, therefore, made out for interference with the impugned
Award in exercise of the supervisory jurisdiction of this Court under Articles
226/227 of the Constitution of India.
18. Accordingly, the present writ petition is dismissed. The Award
dated 16.03.2017 (Annexure P-3) passed by the learned Presiding Officer,
Industrial Tribunal-cum-Labour Court, Hisar in Reference No.11 of 2015 is
upheld. The petitioners shall implement the Award and reinstate respondent
No.1-workman within eight weeks from the date of receipt of a certified
copy of this order, with continuity of service and all consequential benefits
in terms of the Award. It is clarified that the direction shall not entitle the
workman to back wages for the period for which the learned Labour Court
has expressly declined the same. The Award shall be implemented in its
terms and in accordance with law.
19. It is clarified that the dismissal of the writ petition and the
upholding of the Award shall not, by themselves, confer upon respondent
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No.1 any independent right to regularisation or to porting of his services to
the Haryana Kaushal Rozgar Nigam. The petitioners shall, however, remain
at liberty to consider any permissible administrative arrangement in
accordance with the applicable policy and law, provided the same does not
dilute or defeat the relief granted to respondent No.1 under the Award.
CM-16447-2017
1. The present application has been filed by respondent No.1-
workman under Section 151 of the Code of Civil Procedure, 1908, read with
Section 17-B of the Industrial Disputes Act, 1947, seeking payment of wages
during the pendency of the writ petition. The applicant-workman has
specifically averred that he is a poor person and has no source of income.
The said assertion forms part of the application and stands verified by the
accompanying affidavit. The petitioners have opposed the application, inter
alia, on the ground that the statutory requirements of Section 17-B of the Act
have not been fulfilled.
2. Having considered the pleadings and the material placed on
record, this Court finds that the assertion made by the applicant-workman,
duly verified by affidavit, is relevant for examining his entitlement under
Section 17-B of the Act. The petitioners have not placed any material on
record to show that the applicant was gainfully employed in any
establishment or was receiving adequate remuneration during the relevant
period. In the circumstances, the application deserves to be allowed, subject
to the applicant furnishing an undertaking as directed hereinafter.
3. Accordingly, CM-16447-2017 is allowed. The applicant-
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workman shall furnish before the petitioners-department a duly sworn
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affidavit/undertaking declaring that he has not been employed in any
establishment during the period commencing from the date of the Award
dated 16.03.2017 till the disposal of the present writ petition and has not
been receiving adequate remuneration during the said period. Upon
furnishing such undertaking, the petitioners shall release to him the full
wages last drawn, inclusive of admissible maintenance allowance, in
accordance with Section 17-B of the Act, for the period for which he is
entitled thereto. The amount payable shall be calculated on the basis of the
last wages actually drawn by the workman, as ascertainable from the
contemporaneous departmental record. Any amount already paid for the
same period shall be duly adjusted. In the event the undertaking is found to
be false or any material fact is found to have been concealed, the petitioners
shall be at liberty to seek appropriate orders in accordance with law.
4. Pending miscellaneous application(s), if any, shall also stand
disposed of.
(KIRTI SINGH)
JUDGE
02.11.2026
SwarnjitS
Whether speaking/reasoned : Yes
Whether reportable : No
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