CWP No. 947 of 1997 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 947 of 1997 Date of decision: 14.05.2009 Municipal Committee, Smalkha, through its President/Secretary .....PETITIONER VERSUS Presiding Officer, Industrial Tribunal-cum-Labour Court, Panipat and another ..... RESPONDENTS CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. C.B.Goel, Advocate, for the petitioner. Ms. Abha Rathore, Advocate, for respondent No. 2. *** AUGUSTINE GEORGE MASIH, J. In the present writ petition, the challenge is to the award dated 24.05.1996 (Annexure P-1) passed by the Industrial Tribunal-cum-Labour Court, Panipat, wherein the Labour Court has answered the reference in favour of the workman and ordered reinstatement with continuity of service and back wages from the date of his termination. CWP No. 947 of 1997 2 Counsel for the petitioner contends that the workman was appointed merely on leave arrangement basis. He continued as such and had not completed more than 240 days in the 12 preceding months from the date of his termination. He worked with Management from 01.06.1993 to 31.05.1994 with breaks in service. He further contends that during this period, when the workman was in appointment as Sweeper with the Municipal Committee, regular appointments of Sweepers were made through Employment Exchange and the workman also appeared in the interview but he was not found fit for being appointed as Sweeper. In these circumstances, on the appointment of the regular employees in the selection process, wherein the workman had participated, termination of service of the workman was fully justified and in accordance with law. He, on this basis, submits that the impugned award passed by the Labour Court cannot be sustained and deserves to be set aside. He further submits that in any case, even if the findings, as recorded by the Labour Court, are taken to be correct, the workman would not be entitled to reinstatement in service as his appointment was not on regular basis but was merely a stop-gap arrangement without following the selection procedure nor complying with the statutory Rules governing the service. He, on this basis, submits that in the light of the judgments passed by the Hon'ble Supreme Court in the cases of 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, the workman would not be entitled to reinstatement in service. On the other hand, counsel for respondent No. 2-workman CWP No. 947 of 1997 3 submits that the award passed by the Labour Court is fully justified as on the basis of the muster rolls produced by the Management itself, the Labour Court has come to a conclusion that the workman had worked for 276 days from 01.06.1993 to 31.05.1994 when his services were terminated. She further submits that the services of the workman have been dispensed with for the reason that the workman had complained against the Management that the selection process for the post was not fair and proper. She, therefore, contends that the termination of the services of the workman was not bona-fide and has been resorted to with an intention to punish the workman. She further submits that persons junior to the workman have been selected and appointed on regular basis. She submits that this position with regard to the selection of the juniors and giving them appointment has not been disputed by the Management and even the Management witness, who has appeared before the Labour Court, has admitted that not only juniors have been retained in service but a number of new workers were appointed by the department on regular basis. She further submits that the witness, who had appeared on behalf of the Management, has submitted that he was not aware of the qualifications for appointment nor was he able to give reasons for non-selection of the workman on regular basis. She, on this basis, contends that the non- selection of the workman without assigning any reason is not justified. She, on the basis of the above submissions, contends that the impugned award deserves to be sustained and no illegality can be said to have been committed by the Labour Court while passing the impugned award. I have heard counsel for the parties and have gone through the records of the case as well as the impugned award. The position, which emerges as per the findings recorded by CWP No. 947 of 1997 4 the Labour Court, is that the workman was appointed on 14.04.1993 and he continued as such till 31.05.1994. In the 12 preceding months from the date of his termination, the workman had worked for 276 days as per the muster rolls submitted by the Management itself. It is an admitted position that the procedure as laid down under Section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act') while terminating the services of the workman was not complied with as no notice, no compensation or show cause was issued to him. The termination of the services of the workman, therefore, being violative of the provisions, as contained under the Act, was bad in law. The position, which further emerges from the perusal of the pleadings and the award, is that during the period of service of the workman with the Management selection for appointment on regular basis through Employment Exchange of fresh Sweepers was made. Respondent No. 2-workman participated in the selection process and appeared in the interview with the Management. He was not selected for appointment on regular basis. The persons, who were selected and appointed on regular basis, were persons junior to him. This, according to the counsel for the workman-respondent No. 2, is not permissible in law. This contention cannot be accepted as there are statutory Rules governing the services of the public post on which the appointments were being made. It is not the case of the workman that the procedure, as prescribed under the statutory Rules, was not complied with nor is it the claim of the workman that he was not given an opportunity to participate in the selection despite of his having applied for it. Having taken a chance and participated in the selection process, he cannot now turn around and say that he was wrongly not selected by the Management. Merely because persons junior to him have been selected and appointed CWP No. 947 of 1997 5 does not vitiate the selection process. Nothing has been brought on record of the case which would show that the selection process was not fair and proper. Since the regular selections were made, the natural consequence thereof would be termination of the services of the workman, who has not been selected. The contention of the counsel for the workman that the workman had complained against the selection of juniors, therefore, his services were terminated, cannot be accepted as nothing has been pointed out, which would suggest much less proved that the selection was not fair and proper. In this view of the matter, the termination of the services of the workman, who was neither selected through regular process nor was his appointment as per the statutory Rules governing the service, could be said to be unjustified. Regular selections having been made as per the statutory Rules governing the service, temporary workmen appointed on stop-gap arrangement have to give way to the regularly selected candidates. The findings, as recorded by the Labour Court with regard to the non-compliance of the provisions of Section 25-F of the Act having not been complied with, cannot be faulted with in the light of documentary evidence, which was produced by the Management itself and a categoric admission of the part of MW-1 Ranbir Singh, Sanitary Inspector, Municipal Corporation, Samalkha in his cross-examination that no notice, notice pay, retrenchment compensation was given to the workman. The termination, therefore, of the services of the workman was in violation of the provisions under the Industrial Disputes Act. As the initial appointment of the workman not being in consonance with the provisions of the Rules governing the service, which are statutory and the post, on which the workman has been ordered by the Labour Court to be reinstated, is a public post, the direction of reinstatement in service of the workman could CWP No. 947 of 1997 6 not have been issued by the Labour Court in the light of the judgment of the Hon'ble Supreme Court, reliance whereof has been made by the counsel for the petitioner, i.e. Ghazibad Development Authority and another vs. Ashok Kumar and another (supra), Mahboob Deepak vs. Nagar Panchayat, Gajraula (supra), M.P. Administration vs. Tribhuwan (supra) and State of M.P. and others vs. Lalit Kumar Verma (supra). In view of this position, the impugned award dated 24.05.1996 (Annexure P-1) passed by the Industrial Tribunal-cum-Labour Court, Panipat, cannot be sustained. However, in the light of the judgment of the Hon'ble Supreme Court in the case of Telecom District Manager and others vs. Keshab Deb, 2008 (4) SCT 33 and the Division Bench judgment of this Court in the case of State of Haryana vs. Ishwar Singh and another, 2008 (3) SCT 788, the workman would be entitled to compensation to balance the equities between the parties as the termination of the services of the workman was not in consonance with the provisions, as contained under the Industrial Disputes Act. As per the assertion of the workman, he was appointed on 14.04.1993 and he continued on work up to 05.06.1994. He has thus worked for a period of little more than one year with the petitioner-Management and is thus held entitled to compensation of Rs. 10,000/-. In view of the above, the writ petition is allowed. The impugned award dated 24.05.1996 (Annexure P-1) passed by the Industrial Tribunal-cum-Labour Court, Panipat is hereby set aside. However, the workman is held entitled to compensation of Rs. 10,000/-. A direction is issued to the petitioner-Municipal Committee, Samalkha, to release the amount of compensation, as assessed above, CWP No. 947 of 1997 7 within a period of two months from the date of receipt of a certified copy of this order. ( AUGUSTINE GEORGE MASIH ) JUDGE May 14, 2009 pj Whether referred to Reporters.............................Yes/No.