Civil Writ Petition No. 15109 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 15109 of 2007 Date of decision: April 24, 2008 Sector Superintendent-I … Petitioner Versus Smt. Savitri and another … Respondents CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Sunil Nehra, Assistant Advocate General Haryana for the petitioner. Mr. Tara Chand Dhanwal, Advocate for respondent No.1. KANWALJIT SINGH AHLUWALIA , J. Present writ petition has been preferred by Sector Superintendent-I, Government Livestock Farm, Tehsil and District Hisar challenging the award (Annexure P-1) dated 10.11.2006 passed by the Labour Court. Respondent No.1 (worklady), Smt.Savitri served demand notice (Annexure P-2), wherein she stated that she was continuously working as Baildar since August 1992 to 31.05.2000. In reply to demand notice, it was stated by the petitioner-management that the respondent- worklady was employed as a worklady in the last three years and she has not completed 240 days in any preceding 12 months. The dispute of the work-lady was referred to the learned Labour Court under section 10 of the Industrial Disputes Act. Learned Labour Court felt that the respondent- Civil Writ Petition No. 15109 of 2007 2 worklady failed to prove violation of Section 25-G of the Act, however it came to the conclusion that she had worked for 251 days in the last preceding 12 months from the date of termination and there is a violation of Section 25-F of the Act. Therefore, termination of the worklady was held to be bad, she was held entitled to re-instatement with continuity of service and 50% back wages from the date of issuance of demand notice i.e., 05.12.2001 till publication of the award and full wages thereafter till reinstatement. 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, 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. It is apparent that the worklady was employed on daily wages and no regular procedure was followed and the constitutional scheme for public employment was not adhered to as name of the respondent- worklady was not requisitioned through employment exchange. Therefore, her entry into the service through the backdoor cannot be permitted. Even though, the respondent has completed 240 days as per finding of fact Civil Writ Petition No. 15109 of 2007 3 recorded by the learned labour Court, the award cannot be upheld as there is violation of Article 14 and 16 of the Constitution, which grant right of equality to all, in matters of public employment. The fair competition having not been followed, the equal opportunity was not extended to all when respondent- worklady was recruited as daily wager. Therefore, by way of this award, she cannot be allowed continuity of service. Therefore, we cannot sustain the award and same is quashed. In the present case, respondent-worklady, as per demand notice (Annexure P-2) joined the petitioner-management in August, 1992. Her services were terminated on 31st May, 2000. Reference was made in year 2001. Therefore, on equity, worklady is entitled to compensation. In Mehboob Deepak v. Nagar Panchayat, Gujraula and another (2008) 1 Supreme Court Cases 575, the Hon'ble Supreme Court observed as under: “12. It is now well settled by a catena of decisions of this Court that in a situation of this nature instead and in place of directing reinstatement with full back wages, the workmen should be granted adequate monetary compensation. [See M.P. Admn v. Tribhuban, (2007) 9 SCC 748].” This Court also in recent judgments, in CWP No. 10552 of 2006 titled Municipal Corporation Faridabad vs. Presiding Officer, Labour Court, Faridabad and another decided on 12th March, 2008 and CWP No. 7996 of 2006 titled Haryana State Agricultural marketing Board Panchkula vs. Bahadur and another decided on December 3, 2007, has held that the fact that re-instatement of workman cannot be ordered, to balance equities monetary compensation can be granted to the workman, where initial appointment has been held illegal violating the constitutional scheme of public employment. Civil Writ Petition No. 15109 of 2007 4 Therefore, we feel that ends of justice will be fully met in case a lumpsum compensation of Rs.40,000/- is awarded in favour of the worklady and she will not be entitled to any back wages as we have already held that award (Annexure P-1) is liable to be quashed and worklady is also not entitled to reinstatement. Subject to payment of compensation ordered by us, present writ petition is allowed. [KANWALJIT SINGH AHLUWALIA] JUDGE [ASHUTOSH MOHUNTA] JUDGE April 24, 2008 rps