IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 8112 of 2008. Date of Decision : March 31, 2009. Municipal Committee, Pataudi, District Gurgaon. ...... Petitioner . Versus. Presiding Officer, Labour Court, Gurgaon, and another. ..... Respondents. CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present:- Mr. Sachin Mittal, Advocate, for the eptitioner. Mr. Sharad Kumar Yadav, Advocate, for the respondent No. 2. AUGUSTINE GEORGE MASIH, J. (ORAL). In the present writ petition, the challenge is to the order dated 15.03.2004 (Annexure-P-3), passed by the Labour Court, Gurgaon, whereby the Municipal Committee, Pataudi, was proceeded against ex-parte by the Labour Court and thereafter, an ex-parte award dated 02.11.2004 (Annexure-P-4), was passed by the Industrial Tribunal-cum-Labour Court, Gurgaon, wherein the reference was answered in favour of the workman, holding him entitled to reinstatement in service with continuity thereof and 50 per cent back wages. Counsel for the petitioner contends that initially the management was being represented by a counsel who was the authorised representative of the management. On his selection, he joined Delhi Judicial Services, and therefore, none had put in appearance. He further contends that thereafter an Assistant District Attorney had put in appearance on behalf of the management but as no information was conveyed with regard to C.W.P. No. 8112 of 2008. pendency of the case or the fate thereof and he failed to appear before the Labour Court, the management was proceeded against ex-parte on 15.03.2004. Thereafter, the impugned award dated 02.11.2004 came to be passed against the management that again was an ex-parte award. He on this basis contends that there was no intentional absence on the part of the management before the Labour Court and therefore, the award deserves to be set aside. He contends that in any case as the assertion put forth by the workman before the Labour Court, is accepted, the workman would not be entitled to reinstatement in service as it is not his assertion that his appointment was made to the post on which he has been reinstated in accordance with the statutory rules governing the service nor has he pleaded in the demand notice or made a statement to that effect before the Labour Court. He contends that since the initial appointment of the workman was not in consonance with statutory rules and the constitutional mandate as envisaged in Articles 14 and 16 of the Constitution of India with regard to scheme for appointment on public post, the appointment cannot be said to be in consonance with law and therefore, the award with regard to his reinstatement in service, cannot be sustained. On the other hand, counsel for the respondent-workman contends that the management was not vigilant enough to pursue its matter before the Labour Court and absented itself during the proceedings before the Labour Court. The Labour Court had no option but to proceed ex-parte against the management. It has, therefore, rightly been done by the Labour Court leading to the passing of award dated 02.11.2004. He contends that the award passed by the Labour Court was in consonance with law as -2- C.W.P. No. 8112 of 2008. provisions contained in Section 25-F of the Industrial Disputes Act, have not been complied with. He states that there is no illegality in the impugned award which would call for any interference by this Court. I have heard counsel for the parties and have gone through the records of the case. The contention as raised by counsel for the petitioner with regard to setting aside of the ex-parte order dated 15.03.2004, passed by the Labour Court, cannot be accepted as it has come on record that although initially the authorised representative, who was representing the management before the Labour Court, on his selection joined Delhi Judicial Services, thereafter, Assistant District Attorney has been appearing on behalf of the management, and therefore, it cannot be said that they were un- represented thereafter because of joining of their authorised representative in Delhi Judicial Services. The management was required to be vigilant enough while pursuing its interest before the Labour Court and appropriate steps need to be taken by the party concerned to appear before the Court or make arrangement that they are properly represented before the Court. Having not taken the care and caution as is required, the management cannot be given the benefit of its negligence by setting aside of order which has been passed in accordance with law by the Labour Court. The further submission of counsel for the petitioner with regard to non entitlement of the workman for his reinstatement as his appointment was not in accordance with law, does carry weight. Hon'ble the Supreme Court in the cases of Ghaziabad Development Authority and another Versus Ashok Kumar and another, 2008(4) S.C.C. 261, Mahboob Deepak Versus Nagar Panchayat, Gajraula, (2008) 1 S.C.C. 575, M.P. Administration Versus Tribhuwan, (2007) 9 -3- C.W.P. No. 8112 of 2008. S.C.C. 748, and State of M.P. and others Versus Lalit Kumar Verma, (2007) 1 S.C.C. 575, has held that the post under the State is required to be filled up in terms of the Recruitment Rules and by inviting applications from all eligible candidates. The workman-respondent was engaged on daily wages without following the rules and principles of Articles 14 and 16 of the Constitution of India, therefore, even if the workman-respondent has completed 240 days of service, the said workman-respondent is not entitled to be reinstated and also for grant of back wages. The respondent No. 2.- workman in the light of the Judgments of Hon'ble the Supreme Court referred to above, is not entitled to reinstatement against a public post nor is he entitled to any back wages. Counsel for the petitioner contends that 50 per cent back wages as assessed by the Labour Court has already been granted to the workman and he has received an amount of Rs. 63,945/- vide cheque No. 278602, issued by Canara Bank, Haily Mandi, Gurgaon. He contends that in the light of the subsequent judgment of Hon'ble the Supreme Court in the case of Telecom District Manager and Others Versus Kesheb Deb, 2008 (4) S.C.T. 33, and Division Bench judgment of this High Court in the case of State of Haryana Versus Ishwar Singh and another, 2008(3) S.C.T. 788, the workman at the most would be entitled to compensation for the period he has put in service with the management. In this view of the matter, keeping in view the fact that as per the assertions made by the workman before the Labour Court, the workman has put in considerable length of service with the management i.e. from 09.10.1990 to 18.04.1995, it would be just and appropriate that the workman is held entitled to compensation of Rs. 75,000/- to settle equities between the -4- C.W.P. No. 8112 of 2008. parties. It would be open to the petitioner to adjust the amount of back wages granted to the workman as per the award passed by the Labour Court. The remaining amount due to the workman be paid to him within a period of two months from the date of receipt of certified copy of this order. The writ petition is allowed, the impugned dated 02.11.2004 wherein it is held that the workman is entitled to reinstatement with continuity of service and back wages, cannot be sustained and is hereby set aside, however, the workman would be entitled to the amount of compensation, assessed as above. (AUGUSTINE GEORGE MASIH) JUDGE March 31, 2009. sjks. -5-