IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 293 of 2002 Date of decision: 05.03.2009 Punjab State Warehousing Corporation .....PETITIONER VERSUS Raghbir Singh and another ..... RESPONDENTS CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. Saurav Goel, Advocate, for Mr. Govind Goel, Advocate, for the petitioner. Mr. Jatin Salwan, Advocate, for respondent No. 1. *** AUGUSTINE GEORGE MASIH, J. (ORAL) In the present writ petition, the challenge is to the award dated 01.10.2001 ( Annexure P-1) passed by the Labour Court, Kapurthala,vide which the reference has been answered in favour of the workman holding him entitled to reinstatement in service with full back wages and continuity of service on the ground that the Management had not complied with Punjab Warehousing Corporation Staff Regulations, 1960 Regulation 11 (2) thereof, which mandates two months' notice in lieu of pay, whereas the Management has given him compensation for one month's pay. CWP No. 293 of 2002 -2- Counsel for the petitioner contends that the Labour Court has travelled beyond the reference and has passed the award without looking into the reference. He contends that as per the demand notice, the workman has only agitated his claim on the ground that the provisions of the Industrial Disputes Act have been violated and he has not, at that stage, referred to the Punjab Warehousing Staff Regulations, 1960 having not been complied with. He contends that since the claim is limited before the Labour Court to the extent of non-compliance of the provisions of the Industrial Disputes Act, 1947, and the petitioner-Management having been complied with those provisions as held by the Labour Court in its award itself, the workman would not be entitled to the claim, as made by him, and the award passed by the Labour Court cannot be sustained. Counsel for the petitioner relies upon a judgment of the Hon'ble Supreme Court in the case of Bhogpur Co-op. Sugar Mills Ltd. vs. Harmesh Kumar, AIR 2007 Supreme Court 288, on the question that the Court has to operate within four corners of the question referred to it and cannot travel beyond the same. On the question of the relief having been granted to the workman beyond the pleadings, the counsel relies upon a judgment of the Hon'ble Supreme Court in the case of Regional Manager, S.B.I., vs. Rakesh Kumar Tewari, AIR 2006 Supreme Court 839. On the other hand, counsel for respondent No. 1-workman contends that the Punjab Warehousing Staff Regulations, 1960, has been formulated under Section 34 of the Agriculture Produce (Development and Warehousing Corporations) Act, 1956. He contends that these Rules are Statutory Rules and governs the terms and conditions of the appointment and service of the workman. Even the appointment letter, which has been issued to the workman, which is Ex. M-1 before the Labour Court, clearly CWP No. 293 of 2002 -3- states that the service of respondent No. 1-workman will be governed by the rules and regulations of the Corporation, as amended from time to time. He, therefore, contends that not only the provisions of the Industrial Disputes Act but the provisions governing his service, as per the Statutory Rules, will have effect and since the same have not been complied with, the award passed by the Labour Court is fully justified. To this contention, counsel for the petitioner states that the letter of appointment dated 28.02.1985, Ex. M-1 before the Labour Court, further stipulates that the service of the workman is liable to be terminated with 10 days notice from either side and, therefore, the compensation, has been given to the workman within this stipulation and thus, the award cannot be sustained. I have heard the counsel for the parties and have gone through the records of the case. A perusal of Ex. M-1 clearly shows that a stipulation has been made therein that the services of Raghbir Singh-workman would be governed by the rules and regulations of the Corporation, as amended from time to time. It further stipulates that the service of the workman is liable to be terminated with 10 days notice from either side. This limitation, with regard to the termination of the services with 10 days notice from either side, would not bind the parties since the same is contrary to the Statutory Rules governing the service. It is not in dispute that Regulation 11 (2) of the Punjab Warehousing Staff Regulation, 1960, provides for two months' pay in lieu of notice, in case, the service of the workman has to be terminated by the Management. It is also an admitted position that one month's compensation in lieu of notice was given to the workman in compliance with Section 25-F of the Industrial Disputes Act and the CWP No. 293 of 2002 -4- Regulation 11 (2) has not been complied with. What has been asserted by the counsel for the petitioner is that since the provisions, as contained in the Industrial Disputes Act, have been complied with, therefore, it would have precedence over the Statutory Rules governing the service. He further contends that since the workman was appointed on work-charge basis, therefore, these regulations would not be applicable to the case of the respondent-workman. This contention of the counsel for the petitioner is totally against the appointment letter itself, which clearly stipulates that the service of the workman would be governed by the rules and regulations of the Corporation, as amended from time to time. It does not lie in the mouth of the Management to contend that it is totally contrary to its own stipulation, as provided in the appointment letter. There can be no dispute and in the light of the specific condition put in the appointment letter with regard to the services being governed by rules and regulations of the Corporation, it would have precedence and as the terms and conditions of appointment are governed by those rules and that rules having not been complied with, no illegality can be said to have been committed by the Labour Court while passing the impugned award dated 01.10.2001. The contention of the counsel for the petitioner that the Labour Court has not stuck to the reference while passing the award, is not sustainable for the reason that the reference, which was made to the Labour Court reads as follows:- “ Whether termination of services of Shri Raghbir Singh- workman by the employer is justified and in order? If not, to what relief is workman entitled?” Perusal of the above would show that the reference was with CWP No. 293 of 2002 -5- regard to whether the termination of the service of Raghbir Singh-workman by the employer was justified and in order. The Labour Court has, while deciding the reference, not travelled beyond this reference and, therefore, the contention of the counsel for the petitioner cannot be accepted and the judgment of the Hon'ble Supreme Court i.e. Bhogpur Co-op. Sugar Mills Ltd. vs. Harmesh Kumar (supra) is of no help. As regards the contention of the counsel for the petitioner that the Labour Court has gone beyond the pleadings, this submission also is of no help to the petitioner in view of what has been held above that the Statutory Rules governing the service and the terms of appointment, as contained in the letter dated 28.02.1985, Ex. M-1 itself provides that the rules and regulations of the Corporation, as amended from time to time would be applicable to the service conditions of the workman. The judgment, therefore, relied upon by the counsel for the petitioner in the case of Regional Manager, S.B.I., vs. Rakesh Kumar Tewari (supra) will not be applicable to the present case in the light of what is being stated above. Counsel for the petitioner, as a last resort, submits that since it is a public appointment and the appointment of the workman is dehors the Statutory Rules and the same is not in consonance with the scheme of appointment to the public post, as envisaged in Articles 14 and 16 of the Constitution of India, the workman cannot be reinstated in service. He relies upon the judgments of 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, to contend that the posts under the State are required to be CWP No. 293 of 2002 -6- filled up in terms of the statutory rules governing the service by inviting applications from all eligible candidates and thereafter, on consideration of the same, the appointment can be said to be a valid appointment. It has been contended that the workman was engaged on work-charge basis without following the statutory 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 was not entitled to be reinstated and also for the grant of back wages. I am of the opinion that the workman was engaged against a public post on work-charge basis. Such engagement was not in terms of the statutory Recruitment Rules applicable to the post which would have required giving opportunity to all eligible candidates to apply and to be considered for appointment. Therefore, the workman cannot be ordered to be reinstated. In Jaipur Development Authority's case (supra), the Hon'ble Supreme Court has held that even in case of breach of the provisions of Section 25-G and 25-H of the Act, the workman cannot be ordered to be reinstated. However, the Hon'ble Supreme Court in the case of Telecom District Manager and others vs. Keshab Deb, 2008 (4) SCT 33 and Division Bench of this Court in the case of State of Haryana through Executive Engineer vs. Ishwar Singh and others, 2008 (3) SCT 789 that such workman may be granted compensation for wrongful termination under the Industrial Disputes Act to settle the equities of the parties. As the workman has put in service with the petitoner- Management from February 28, 1985 to December 01, 1992 i.e. about 7 years and 8 months and, I deem it appropriate to grant compensation amounting to Rs. 70,000/- to settle equities between the parties in the light of the judgment passed by the Hon'ble Supreme Court in Telecom District CWP No. 293 of 2002 -7- 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 through Executive Engineer vs. Ishwar Singh and others, 2008 (3) SCT 789. The Petitioner is directed to pay compensation of Rs. 70,000/- to the workman-respondent No. 1 within a period of two months' from the date of receipt of a copy of this order. The writ petition stands disposed of with the above direction. ( AUGUSTINE GEORGE MASIH ) JUDGE March 05, 2009 pj