IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.M. No. 25065 of 2008 and CWP No. 4844 of 2005 (O&M) Date of decision: 11.02.2009 The Superintending Engineer, PWD (Rural Water Supply) Circle, Bathinda and others .....PETITIONERS VERSUS Workman Kaka Singh son of Bhura Singh and another ..... RESPONDENTS CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. Vijay Kumar Chaudhary, AAG, Punjab, for the petitioners. Mr. B.D.Sharma, Advocate, for respondent No. 1. *** AUGUSTINE GEORGE MASIH, J. (ORAL) C.M. No. 25065 of 2008 C.M. is allowed. Affidavit of respondent No. 1 is taken on record. CWP No. 4844 of 2005 In the present writ petition, the challenge is to the award dated 02.11.2004 passed by the Labour Court, Bathinda, (Annexure P-7), vide which the workman has been ordered to be reinstated in service with C.M. No. 25065 of 2008 and -2- CWP No. 4844 of 2005 (O&M) continuity thereof along with 40% back wages from the date of demand notice i.e. 16.10.1995. Counsel for the petitioners contends that even if the findings, which have been recorded in favour of the workman, are taken as it is, still the workman cannot be reinstated in service in the light of the fact that the workman was appointed as an Electrician on muster roll basis in the office of petitioner No. 3 and, therefore, the said appointment was not in accordance with the statutory rules leading to violation of Articles 14 and 16 of the Constitution of India, as the post, on which the workman is seeking reinstatement, is a public post. Counsel for respondent No. 1 submits that this ground was not taken before the Labour Court nor this ground is taken in the writ petition, therefore, this contention cannot be raised by the counsel for the petitioners. He further contends that C.M. No. 25065 of 2008 has been filed by the workman-respondent No. 1 praying therein the compliance of the order passed by this Court as per the provisions of Section 17-B of the Industrial Disputes Act. He contends that in the absence of compliance of the said order passed by this Court and non-payment of last drawn wages as per the provisions of the Industrial Disputes Act, the workman is unable to defend himself and without deciding the issue regarding payment of the amount under Section 17-B of the Industrial Disputes Act, this would mean that the chance to defend the case has not been effectively given to the workman and the interest of the workman would be prejudiced. I have gone through the award passed by the Labour Court and have also given my thoughtful consideration to the submissions as put forth by the counsel for the parties. C.M. No. 25065 of 2008 and -3- CWP No. 4844 of 2005 (O&M) There is no dispute that Section 17-B of the Industrial Disputes Act do provide for and does say that the last pay drawn by the workman has to be paid to him, in case proceedings before the High Court or the Hon'ble Supreme Court are preferred by the employer. The said right does exist but it is subject to certain requirements, which are required to be fulfilled by the workman as well. Section 17-B of the Industrial Disputes Act says that this benefit of last pay drawn is to be given on filing of an affidavit by the workman before the Court, where the proceedings are pending. The workman, in the present case, has filed his affidavit on 06.12.2008. Therefore, the workman is held entitled to the benefit of Section 17-B of the Industrial Disputes Act from the said date of filing of the affidavit. The contention of the counsel for the petitioner that non- payment of the amount under Section 17-B of the Industrial Disputes Act would scuttle his right to defend and effectively present his case before the Court, cannot be said to be of such nature which would deprive the employee of his right to representation. The position would have been understandable if no one would have represented the petitioner before this Court and a request had come from the workman to that effect. The counsel has been engaged, who has made his submissions before this Court very effectively and vehemently, therefore, it cannot be said that in any way, prejudice has been caused to the workman in defending his case in the High Court. Further, there is no bar to the Court to decide the case on merits. The right, which has accrued to the workman, as per the provisions of Section 17-B of the Industrial Disputes Act and the arrears thereof have to be paid to the workman and an effective direction for compliance thereof can be given by the Court at the time when the case is C.M. No. 25065 of 2008 and -4- CWP No. 4844 of 2005 (O&M) being finally decided by the Court as well. The contention of counsel for respondent No. 1 that the present plea, which has been taken by the counsel for the petitioners with regard to the appointment being not in accordance with the statutory rules, having not been taken either before the Labour Court or before this Court also cannot be accepted to be a ground for rejecting the argument, which has been raised by the petitioners, as for a person to be appointed on a post, the statutory rules governing the said post are mandated to be complied with, if the said post is a public post. There is no dispute with regard to the factum that the post, on which the reinstatement of the workman has been ordered by the Labour Court is a public post. The pleadings of the parties and the evidence, which has been produced before the Labour Court clearly show that the appointment of the workman as Electrician with the petitioner on 01.10.1992 was on muster roll basis as daily wager as per the requirement of the work. That being the position, the appointment of the workman, which has been made initially as Electrician was not in accordance with the statutory rules and, therefore, he does not have a right to hold the post, which is not in accordance with the mandate of law. Articles 14 and 16 of the Constitution of India having not been complied with, a public post cannot be allowed to be occupied by a person, who is not legally entitled to hold the said post. The contention of the counsel for the workman-respondent No. 1, therefore, cannot be sustained. Counsel for the petitioners contends that the workman was a daily wager and even if he has completed 240 days in one calendar year, the said workman is not entitled to be reinstated against a public post when C.M. No. 25065 of 2008 and -5- CWP No. 4844 of 2005 (O&M) the engagement of the workman was not in accordance with the Recruitment Rules. This would amount to violation of Articles 14 and 16 of the Constitution of India and the appointment being not in consonance with the provisions of Constitution, the award is not sustainable. Reliance has been placed on the decisions of the Hon'ble Supreme Court in the cases reported as Ghazibad Development Authority and another vs. Ashok Kumar and another, 2008 (4) SCC 261, Mahboob Deepak vs. Nagar Panchayat, Gajraula, (2008) 1 SCC 575, M.P. Administration vs. Tribhuwan, (2007) 9 SCC 748 and State of M.P. and others vs. Lalit Kumar Verma, (2007) 1 SCC 575 to contend that the posts under the State are required to be filled up in terms of the statutory rules governing the service by inviting applications from all eligible candidates and thereafter, on consideration of the same, the appointment can be said to be a valid appointment. It has been contended that the respondent No. 1- workman was engaged on daily wages without following the rules and principles of Articles 14 and 16 of the Constitution, therefore, even if the workman has completed 240 days of service, the said workman was not entitled to be reinstated and also for the grant of back wages. I have gone through the records of the case as well as the impugned award dated 02.11.2004 (Annexure P-7) passed by the Labour Court, Bathinda. I am of the opinion that the workman was engaged against a public post on daily wage basis. Such engagement was not in terms of the statutory Recruitment Rules applicable to the post which would have required giving opportunity to all eligible candidates to apply and to be considered for appointment. Therefore, the workman cannot be ordered to be reinstated. In Jaipur Development Authority's case (supra), the C.M. No. 25065 of 2008 and -6- CWP No. 4844 of 2005 (O&M) Hon'ble Supreme Court has held that even in case of breach of the provisions of Section 25-G and 25-H of the Act, the workman cannot be ordered to be reinstated. In view of the above, the award granting reinstatement and back wages to the workman-respondent No. 1 is not sustainable. Consequently, the impugned award dated 02.11.2004 (Annexure P-7), is set aside. As the workman has worked for 2 ½ years, I deem it appropriate to grant compensation amounting to Rs. 25,000/- to settle the equities between the parties in the light of the judgment passed by the Hon'ble Supreme Court in Telecom District Manager and others vs. Keshab Deb, 2008 (4) SCT 33. This writ petition is allowed in above terms. The petitioners are directed to pay compensation of Rs. 25,000/- to respondent No. 1- workman within a period of two months from the date of receipt of a copy of this order. The workman is also entitled to the benefit of Section 17-B of the Industrial Disputes Act from 06.12.2008 till the date of decision of this case. The same be also paid to him along with the compensation. ( AUGUSTINE GEORGE MASIH ) JUDGE February 11, 2009 pj