CWP No. 19576 of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 19576 of 2007 Date of Decision : 18.11.2008. Executive Engineer & another ...... Petitioners Versus Sardar Singh & another ......Respondents CORAM : HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE NAWAB SINGH 1.Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3.Whether the judgment should be reported in the Digest ? -.- Present:- Ms. Ambika Luthra, AAG Punjab for the Petitioners. Mr. R.S. Ahluwalia, Advocate for respondent No.1. HEMANT GUPTA J.(ORAL) The Challenge in the present writ petition is to the Award dated September 8, 2003 (Annexure P-4) and order dated July 16, 2007 (Annexure P-6) whereby, respondent No.1 (hereinafter referred to as 'Workman') was ordered to be re-instated with continuity in service with 25% back wages. It is the case of workman that he was employed as a Beldar on 4.5.1986 and continuously worked till 31.8.1989 when his services were illegally terminated without any notice, notice pay and retrenchment compensation. After examining the evidence led by the parties, the learned Labour Court returned a finding that the delay has been explained by the CWP No. 19576 of 2007 -2- workman in raising the industrial dispute after the gap of more than 10 years. On merits, it was found that workman has worked from 4.5.1986 to 31.8.1989 as the Management has not produced the complete record to rebut the claim of the workman. The vouchers demanded have not been produced. Therefore, it was held that the services of the workman have been terminated by violating the mandatory provisions of Section 25F of the Industrial Disputes Act, 1947 and that the termination is illegal, null and void. The petitioners moved an application before the learned Labour Court pointing out that in fact, the record produced is in respect of another Sardara Singh and that the workman has not worked with the Management. Said application was dismissed by learned Labour Court on July 16, 2007 holding that application was not maintainable as the Labour Court has become functus officio. Learned counsel for the petitioners has vehemently argued that though there was mistaken identity of the workman before the Labour Court but without examining that question any further, the fact remains that the workman has been ordered to be re-instated on a public post, the post against which he was not appointed in terms of recruitment rules and by inviting applications from all eligible candidates. Reliance is placed on a decision of the Supreme Court in cases reported as Ghaziabad Development Authority & another Vs. Ashok Kumar & another, 2008 (4) SCC 261, Mahboob Deepak vs. Nagar Panchayat, Gajraula, (2008) 1 SCC 575, M.P. Administration Vs. Tribhuwan, (2007) 9 SCC 748, Utrranchal Forest Development Corpn. Vs. M.C. Joshi, (2007) 2 CWP No. 19576 of 2007 -3- SCC (L&S) 813, State of M.P. And others Vs. Lalit Kumar Verma, (2007) 1 SCC 575, 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 Articles 14 and 16 of the Constitution, 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. In M.P. Administration's case (supra), the Court held to the following effect:- 6. "The question, however, which arises for consideration is as to whether in a situation of this nature, the learned Single Judge and consequently the Division Bench of the Delhi High Court should have directed reinstatement of the respondent with full back wages. Whereas at one point of time, such a relief used to be automatically granted, but keeping in view several other factors and in particular the doctrine of public employment and involvement of the public money, a change in the said trend is now found in the recent decisions of this Court. This Court in a large number of decisions in the matter of grant of relief of the kind distinguished between a daily wager who does not hold a post and a permanent employee. It may be that the definition of "workman" as contained in Section 2(s) of the Act is wide and takes within its embrace all categories of workmen specified therein, but the same would not mean that even for the purpose of grant of relief in an industrial dispute referred for adjudication, application of constitutional scheme of equality adumbrated under Articles 14 and 16 of the Constitution of India, in the light of a decision of a Constitution Bench of this Court in Secy., State of Karnataka v. Umadevi and other relevant factors pointed out by the Court in a catena of decisions shall not be taken into consideration. CWP No. 19576 of 2007 -4- 7. The nature of appointment, whether there existed any sanctioned post or whether the officer concerned had any authority to make appointment are relevant factors." The said observations are in the context of engagement of a workman engaged on temporary basis from time to time. It was held that the Industrial Court exercises its discretionary jurisdiction under Section 11A of the Act, when it directs the amount of compensation to be paid to the workman. In Mahboob Deepak's case (supra), the Court held to the following effect:- 9. “Due to some exigency of work, although recruitment on daily wages or on an ad hoc basis was permissible, but by reason thereof an employee cannot claim any right to be permanently absorbed in service or made permanent in absence of any statute or statutory rules. Merely because an employee has completed 240 days of work in a year preceding the date of retrenchment, the same would not mean that his services were liable to be regularised.” In Ghaziabad Development Authority's case (supra), the dispute referred to the Labour Court was regarding termination of daily wagers appointed on ad hoc basis. It was held to the following effect:- 19. “A statutory authority is obligated to make recruitments only upon compliance with the equality clause contained in Articles 14 and 16 of the Constitution of India. Any appointment in violation of the said contitutional scheme as also the statutory recruitment rules, if any, would be void. These facts were required to the kept in mind by the Labour Court before passing an award of reinstatement. 20. Furthermore, public interest would not be subserved if after such a long lapse of time, the first respondent is directed to CWP No. 19576 of 2007 -5- be reinstated in service.” In view of the aforesaid judgments, we are of the opinion that the workman, who has worked on daily wages for more than 3 years or so is not entitled to be reinstated or the back wages. In view of the above, we allow the present writ petition and the impugned award dated September 8, 2003 (Annexure P-4), is set aside. (HEMANT GUPTA) JUDGE (NAWAB SINGH) JUDGE 18.11.2008. SN/Monika