IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.575 of 2004 Date of decision: 23.12.2008 State of Haryana ...Petitioner versus Ramesh Kumar and another ...Respondents Coram: Hon'ble Mr.Justice Hemant Gupta. Hon'ble Mr. Justice Nawab Singh. Present: Mr. D.S.Nalwa,AAG, Haryana. Mr. Surinder Singh, Advocate for the respondents. Hemant Gupta, J. (Oral) The challenge in the present writ petition is to the Award of the Labour Court, Chandigarh dated 10.02.2003(AnnexureP-4), whereby an Industrial Dispute raised by respondent No.1 (hereinafter referred to as 'the workman') was answered in favour of the workman and the workman was ordered to be reinstated with continuity in service and 50% backwages. It is the case of the workman that he was engaged in December, 1991 in the office of PWD B&R (Hort.), Haryana and continued to work till 31.1.1993 but his services were terminated without any notice, notice pay/retrenchment compensation and continuously he served a demand notice on 12th August, 1997. The learned Labour Court returned a finding that the workman has worked for more than 240 days in a calendar year preceding to his CWP No.575 of 2004 - 2- alleged date of termination but since the workman was not given any notice, notice pay/retrenchment compensation, so his termination is in contravention of 25-F of Industrial Disputes Act, 1947 (for short 'the Act'). On the basis of said finding, the workman was ordered to be reinstated with continuity in service with backwages. Learned counsel for the petitioner has vehemently argued that even if the workman has completed 240 days in the preceding year prior to his termination still, the workman could not have been ordered to be reinstated with backwages as the public posts are required to be filled in terms of Recruitment Rules and after complying with the principles of Articles 14 and 16 of the Constitution of India that is by giving opportunity to all eligible candidates to apply after consideration. Reliance is placed upon a decision of the Hon'ble 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 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 CWP No.575 of 2004 - 3- 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. 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 CWP No.575 of 2004 - 4 - 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 constitutional 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 be reinstated in service.” In view of the aforesaid judgments, we are of the opinion that the workman, though has worked on daily wages intermittently for 02 years, but is not entitled to be reinstated. In view of the findings recorded above, we find that the Award of the Labour Court granting reinstatement and backwages CWP No.575 of 2004 - 5 - contravenes the aforesaid judgments. Consequently, the Award dated 10.02.2003 (AnnexureP-4) is set aside and the writ petition is allowed. (HEMANT GUPTA) JUDGE (NAWAB SINGH) JUDGE 23.12.2008 sanjeev