P&H HC Upholds Reinstatement Of Agency-Paid Clerk After 240 Days’ Service, As Department Failed To Prove Outsourcing

Respondent No. 1 was engaged as a Clerk on D.C. rates from 26 November 2010 and worked until 31 January 2012, when he was not permitted to resume duty. He alleged that his termination violated Sections 25-F, 25-G and 25-H of the Industrial Disputes Act, 1947. The department contended that he had been engaged through an outsourcing agency in successive 89-day periods. The agency denied employing him and stated that it only disbursed wages received from the department.

The Labour Court found that the workman had completed 240 days, that the outsourcing plea was not established, and that Section 25-F had been violated. It ordered reinstatement with continuity and consequential benefits, but denied back wages. The department challenged the Award under Articles 226/227 of the Constitution.

Section 25-F of the Industrial Disputes Act requires compliance with its notice and retrenchment-compensation requirements before retrenching a workman who has completed the requisite continuous service.

Under Range Forest Officer v. S.T. Hadimani, (2002) 3 SCC 25, and Surendranagar District Panchayat v. Dahyabhai Amarsinh, (2005) 8 SCC 750, the initial burden of proving 240 days’ service rests on the workman, and a bare assertion is insufficient.

In exercising supervisory jurisdiction under Articles 226/227, the High Court does not reappraise evidence as an appellate court; interference is warranted where findings are perverse, unsupported by evidence, or affected by an apparent error of law.

Section 17-B provides for payment of last-drawn wages, subject to the statutory requirements, during the pendency of proceedings challenging an award of reinstatement.

The Court found that the department’s own witness acknowledged that the workman was appointed on the Superintending Engineer’s recommendation, worked under departmental supervision, and was not supplied under a contract for clerical staff; the agency’s witness likewise stated that the agency neither engaged nor removed him.

The attendance register and sanction letters supported the Labour Court’s finding of continuous work, with only notional short breaks, and the department failed to show that the finding of 240 days was unsupported by the record.

As no notice, notice pay or retrenchment compensation had been paid, the finding of breach of Section 25-F stood.

The Court considered the objections concerning “workman” and “industry” insufficient to establish an error warranting supervisory intervention; it also noted the similar, unsuccessful challenge to the Award in Rajender Kumar’s case, without treating that decision as a substitute for examining the present evidence.

For Section 17-B, the workman’s affidavit asserting lack of employment or adequate remuneration was not rebutted by the department, so payment was allowed subject to an undertaking.

The Court clarified that the judgment did not itself confer a right to regularisation or porting to the Haryana Kaushal Rozgar Nigam.

The Section 17-B application was allowed subject to the workman furnishing the specified undertaking, with any amounts already paid for the same period to be adjusted.