C.W.P.No.12744 of 1990 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.12744 of 1990 Date of Decision:- 21.01.2009 [ENTITY] Petitioner(s) vs. [ENTITY] & another Respondent(s) CORAM:- HON'BLE MR.JUSTICE [ENTITY] Present:- Mr.[ENTITY], AAG, Punjab for the petitioner. None for the respondent. [ENTITY], J. (Oral)
The present writ petition has been filed by the [ENTITY] challenging the award dated 17.1.1990 (Annexure P-1) vide which the reference was answered in favour of the respondent-workman and a direction was issued to the petitioner to reinstate the workman with continuity of service. The workman has further been held entitled to half of the back-wages from the date of termination till reinstatement.
Counsel for the petitioner contends that the workman was appointed on purely temporary basis and as per his appointment letter, his services were liable to the terminated with 10 days' notice on the either side. Since the services of the workman were no more required by the department for want of work, his services were terminated after giving him 10 days' notice on 21.2.1975. He contends that since the services of the workman were dispensed with in accordance with his appointment letter, he is not entitled to reinstatement in service with 50% back wages as has been ordered by the Labour Court vide its impugned award.
A perusal of the impugned award would show that the workman had worked for four years with the petitioners and it has further come on record that the work was available on which the workman was appointed. It has also come on record that Shri [ENTITY], was appointed as Research Assistant after 2 months of the termination of the workman. In the light of this, the learned Labour Court has proceeded to hold that the termination of the workman was in accordance with law and the provisions of the [ACT] having not been complied with, the workman was entitled to reinstatement with 50% back wages.
Counsel for the petitioner has contended that the workman was working against a purely temporary post, on temporary basis. It being a public appointment, the workman would not be entitled to reinstatement in service in the light of non-compliance of [SECTION] and [SECTION] of the [ACT] as has been held in various judgments of the Hon'ble Supreme Court in [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], to contend that the post 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], therefore, even if the workman has completed 240 days of service, the said workman 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, learned counsel for the workman submitted that the workman has been reinstated in terms of the Award of the Labour Court, therefore, this Court should not interfere against the award at this stage.
Having heard learned counsel for the parties, I am of the opinion that the workman was engaged against a public post on daily wages. Such engagement was not in terms of the Recruitment Rules applicable to the post or by giving opportunity to all eligible candidates to apply and to be considered for appointment. Therefore, the workman cannot be ordered to be reinstated. Still further, the retention of juniors will not confer any right on the workman to be reinstated as illegality in continuing to engage a daily wager will only mean perpetuating an illegality. In Jaipur Development Authority's case (supra), the Hon'ble Supreme Court has held that even in case of breach of the provisions of [SECTION] and [SECTION] of the Act, the workman cannot be ordered to be reinstated.
Learned counsel for the petitioner has relied upon a judgment of this Court in [PRECEDENT] wherein this Court has held that even if the termination is in violation of [SECTION], [SECTION] and [SECTION] of the [ACT] since the provisions as contained in [SECTION] and [SECTION] of the [ACT] have not been complied with as the post on which the reinstatement is being sought is a public post, the workman would not be entitled to such reinstatement merely on the basis of violation of these provisions of the [ACT]. However, this Court has proceeded to grant compensation to the workman in lieu of reinstatement in service. Following the above-referred judgment, I am of the considered view that the workman cannot be ordered to be reinstated in service in the light of the law laid down by the Hon'ble Supreme Court and this Court. However, to balance the equity between the parties, it would be just and proper if a compensation of Rs.50,000/- is granted to the petitioner. It is ordered accordingly.
A direction is issued to the petitioner to make payment of the said compensation to the workman within a period of four months from the date of receipt of certified copy of this order.
January 21, 2009 ( [ENTITY] ) poonam JUDGE
Whether referred to Reporters Yes/No IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:- 21.01.2009 [ENTITY] Petitioner(s) vs. [ENTITY] and another Respondent(s) CORAM:- HON'BLE MR.JUSTICE [ENTITY] Present:- None for the petitioner.
Mr.[ENTITY], AAG, Punjab for the respondents.
[ENTITY], J. (Oral) In the light of the judgment passed in C.W.P.No.12744 of 1990 [ENTITY] vs. [ENTITY] and another, this writ petition stands dismissed.
January 21, 2009 ( [ENTITY] ) poonam JUDGE