C.W.P.No.1560 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.1560 of 2009 Date of Decision:- 10.03.2009 The [ENTITY] Petitioner(s) vs. [ENTITY] and another Respondent(s) CORAM:- HON'BLE MR.JUSTICE [ENTITY] Present:- Mr.[ENTITY], Sr. Advocate with Mr.[ENTITY], Advocate for the petitioner. Mr.[ENTITY], Advocate for the respondent. [ENTITY], J. (Oral)
In the present writ petition, challenge is to award dated 29.9.2008 (Annexure P-3) passed by the Labour Court, Ambala vide which the reference has been answered in favour of the workman holding her entitled to reinstatement in service along with all consequential service benefits including continuity of service and full back-wages.
Counsel for the petitioner contends that the workman cannot be put back in service as it is a public appointment and the appointment was not made in accordance with the Statutory Rules governing the service. He further contends that in any case, the appointment of the workman was on 89 days' basis for a specified term on daily wages at D.C. rates with intermittent breaks and on the basis of the agreement entered into by the parties. He contends that as per the provisions contained under [SECTION] of the [ACT] (hereinafter referred to as the Act), which is an exception to the term "retrenchment". It would not be a retrenchment and, therefore, non-compliance of [SECTION] of the Act would not confer any right upon the workman. That being so, the award passed by the Labour Court cannot be sustained. In support of his contention, he has relied upon the judgments of the Hon'ble Supreme Court in the cases of [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], to contend that the posts under the State are required to be filled up in terms of the Recruitment Rules and by inviting applications from all eligible candidates. It is contended that the respondent-workman was engaged on daily wages without following the rules and principles of [SECTION] and [SECTION] of the [ACT] and, therefore, even if the workman has completed 240 days of service, she is not entitled to be reinstated and also for the grant of back wages.
Reliance is also placed upon the judgment of the Hon'ble Supreme Court in [PRECEDENT].
On the other hand, counsel for the respondent contends that the contention of the counsel for the petitioner that the appointment of the workman was not in consonance with the statutory rules, is not correct. The appointment of the workman was made through the Employment Exchange on a sanctioned vacant post of a Clerk. She continued to work on the said post from 15.9.1999 to 5.12.2002. This period included 12 extensions of 89 days' basis which actually shows that there was work available with the respondents and her services have been terminated just to deprive her of the statutory rules as contained under the Act. He contends that since it is not in dispute that the workman had completed more than 240 days in the 12 preceding months from the date of her termination and it is also not in dispute that no compensation, notice or enquiry was held before such termination, the provisions of [SECTION] of the Act have not been blatantly violated and the workman has been held entitled to the relief by the Labour Court. The award passed by the Labour Court is, thus, in accordance with law and does not call for any interference by this Court.
In response to this, learned counsel for the petitioner states that it is an admitted position that the post is a public post which needs to be filled up as per the statutory rules. It is also an admitted position that the appointment was on daily wage basis and not on regular basis; although the post may be a post which was available but was not filled on regular basis. Therefore, the appointment cannot be said to be in accordance with the Statute. He further contends that [SECTION] and [SECTION] of the [ACT] which provides for filling up of the post by inviting applications and giving chance to all who participate in the selection, have not been complied with and, therefore, the workman would not be entitled to reinstatement in service. Counsel for the petitioner further submits that at the most the respondent-workman would be entitled to compensation for the period she has worked with the petitioner but she cannot be reinstated in service in the light of the judgment of the Hon'ble Supreme Court in the case of [PRECEDENT] and a Division Bench judgment of this Court in the case of [PRECEDENT]. This Court has held that a daily wage employee, even in case there is non- compliance of the Act and there is violation of [SECTION], [SECTION], [SECTION] and [SECTION], is not entitled to reinstatement on a public post but would be entitled to compensation. In the said judgment also, this Court has granted compensation to the workman.
I have heard learned counsel for the parties and have gone through the records of the case. The public post on which the workman has been reinstated is required to be filled up by following the principles of [SECTION] and [SECTION] as has been laid out thereunder. The judgments which have been relied upon by the counsel for the petitioner emphasize and point towards the mandate of the [ACT] which is attached while filling up the post on falling within the domain of public post.
In view of this situation and the legal position as settled by the Hon'ble Supreme Court, the award passed by the Labour Court cannot be sustained and, therefore, deserves to be set aside. Ordered accordingly.
However, in the light of the admitted position that the workman has completed more than 240 days in the 12 preceding months from the date of her termination, she would be entitled to compensation in lieu of reinstatement in service.
In view of the judgments passed by the Hon'ble Supreme Court, in [PRECEDENT]'s case (supra) and the Division Bench of this Court in [PRECEDENT]'s case (supra), the award dated 29.9.2008 (Annexure P-3) passed by the Industrial Tribunal-cum-Labour Court, Ambala is hereby set aside. The workman having worked with the petitioner from 15.9.1999 to 5.12.2002 i.e. about three and a half years, is entitled to Rs.35,000/- as compensation to settle the equities between the parties in lieu of reinstatement.
This petition is disposed of with a direction to the petitioner to make the payment of compensation of Rs.35,000/- to the respondent- workman within a period of two months from the date of receipt of copy of this order.
March 10, 2009 ( [ENTITY] ) poonam JUDGE Whether referred to Reporters Yes/No