IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 2193 of 2008 Date of decision: 16th May, 2008 Paramjit and others … Petitioners Versus The Chief Medical Officer, General Hospital, Hissar and another … Respondents CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Vikram Sheoran, Advocate for the petitioner. Mr. Sunil Nehra, Assistant Advocate General Haryana for the State. KANWALJIT SINGH AHLUWALIA, J. Petitioners are legal heirs of workman Ram Deva. They have filed present writ petition challenging the impugned award dated 29.03.2004 (Annexure P-4) passed by the learned Labour Court, Hissar, who had declined the reference made by the State of Haryana under clause (c) of sub Section (i) of Section 10 of the Industrial Disputes Act, 1947. Ram Deva son of Ram Sarup vide Annexure P-1 had made a claim that he was employed on 19.09.1988 by CMO, General Hospital, Hissar and his services were illegally terminated on 24th April, 1995. It has been stated that he was getting monthly salary of Rs.1300/-. It has been Civil Writ Petition No. 2193 of 2008 further stated that the management had committed violation of Section 25- F, 25-G and 25-H of the Industrial Disputes Act. In reply to claim statement (Annexure P-1), a written statement (Annexure P-2) was filed, in which it was stated that petitioner was employed as a daily wager on the rates determined by the DC. His appointment was on purely temporary basis. The learned Labour Court held that demand notice has been served after a period of about five years of termination and that no explanation has been furnished regarding the delay in raising the industrial dispute. Learned Labour Court also found fo rce in the plea raised by the management that workman had abandoned the job. In response to the writ petition filed, we had issued notice of motion. In the written statement filed by the management, it has been stated that services of Ram Deva were hired as part-time worker, just to make stop-gap-arrangement and he is not entitled to reinstatement as the same will tantamount to back door entry in public employment. Counsel for the petitioner contended that once reference has been made, then the learned Labour Court cannot say that there is a delay in making the reference and the dispute has become stale. We are unable to accept the contention of the learned counsel for the petitioner. Counsel for the State has placed reliance upon Nedungadi Bank Ltd. v. K.P. Madhavankutty and others, 2000 (2) Supreme Court Cases 455 to contend that the learned Labour Court was justified in holding that workman is not entitled to relief, as, because of delay, dispute raised by him had become stale. Reliance has also been placed on Haryana State Cooperative Land Development Bank v. Neelam, AIR 2005 Supreme Court 1843 to contend that the learned Labour Court was justified to decline the relief to 2 Civil Writ Petition No. 2193 of 2008 the workman on the ground of delay. It has been held in Haryana State Cooperative Land Development Bank’s case (supra) as under: “It is trite that the courts and tribunals having plenary jurisdiction have discretionary power to grant an appropriate relief to the parties. The aim and object of the Industrial Disputes Act may be to impart social justice to the workman but the same by itself would not mean that irrespective of his conduct a workman would automatically be entitled to relief. The procedural laws like estoppel, waiver and acquiescence are equally applicable to the industrial proceedings. A person in certain situation may even be held to be bound by the doctrine of Acceptance Sub silentio. The Respondent herein did not raise any industrial dispute questioning the termination of her services within a reasonable time. She even accepted an alternative employment and has been continuing therein from 10.8.1988. In her application filed before the Presiding Officer of the Labour Court while traversing the plea raised by the Appellant herein that she is gainfully employed in HUDA with effect from 10.8.1988 and her services had been regularized therein it was averred: 6. The applicant workman had already given replication to the A.L.C.-cum-Conciliation Officer, stating therein that she was engaged by HUDA from 10.8.1988 as Clerk-cum-Typist on daily wage basis. The applicant workman has the right to come to the service of the management and she is interested to join them.” Learned counsel for the State has also submitted that petitioner was a daily-wager and he is not entitled to reinstatement. Name of the workman was not requisitioned from the employment exchange nor any advertisement was issued. Equal opportunity was not granted to all to compete for public employment. Even if we ignore the delay, fact remains that workman Ram Deva was a daily-wager. 3 Civil Writ Petition No. 2193 of 2008 He could not be reinstated in view of judgment of the Hon’ble Supreme Court in State of Karnataka and others v. Umadevi and others (2006) 4 SCC 1. We find that the view taken by the Hon’ble Supreme Court in Municipal Council, Samrala v. Raj Kumar (2006) 3 SCC 81 is that unless an employee is appointed as per rules and regulations, his/her appointment cannot be treated to be consistent with Articles 14 and 16 of the Constitution. Appointment given de hors the rules and regulations is liable to termination and is covered under Section 2(oo) (bb) of the Act and thus, does not amount to retrenchment. Similarly, in Gangadhar Pillai v. Siemens Limited (2007) 1 SCC 533, Indian Drugs & Pharmaceuticals Ltd. v. Workmen (2007) 1 SCC 408, Reserve Bank of India v. Gopinath Sharma and another (2006) 6 SCC 221 and UP Power Corporation Ltd. and another v. Bijli Mazdoor Sangh and others (2007) 5 SCC 755, it has been held that reinstatement of a workman in public employment will not be consistent with Article 14 unless a workman had been appointed by following rules and regulations. Hence, we affirm the impugned award and the present writ petition is dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE [ASHUTOSH MOHUNTA] JUDGE May 16, 2008 rps 4