IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.9702 of 2008 Date of decision : 11th September, 2008 Executive Engineer, PWD (B&R), Division No.5, Now Executive Engineer, PWD (B&R), NH, Division No.3, Rohtak … Petitioner Versus Samunder Singh and another … Respondents CORAM: HON’BLE MR. JUSTICE HEMANT GUPTA HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present : Mr. D.S. Nalwa, Additional Advocate General, Haryana for the petitioner. Mr. Neeraj Kumar, Advocate for respondent No.1. KANWALJIT SINGH AHLUWALIA, J. Present writ petition has been preferred by the Executive Engineer, PWD (B&R), Division No.5, now Executive Engineer, PWD (B&R), NH, Division No.3, Rohtak (hereinafter referred to as, ‘management’) aggrieved against the award dated 14.11.2007 (Annexure P-5) passed by the Labour Court, Rohtak, whereby Samunder Singh respondent No.1 (hereinafter referred to as, ‘workman’) has been held entitled to reinstatement to his previous post with continuity of service and 50 per cent back wages. Civil Writ Petition No.9702 of 2008 In pursuance of demand notice dated 25.09.1997 served by the respondent-workman, following reference was made by the State of Haryana: “Whether termination of services of Sh.Samunder Singh is justified and if not, to what relief he is entitled to?” Thereafter, workman submitted claim statement (Annexure P-3) on 16.09.2003. It has been stated therein that he was appointed as a Beldar in April 1993 and his services were terminated on 01.03.1996. It has been further stated that workman was appointed against a regular post and he completed more than 240 days in a calendar year and that his services were terminated without any notice, chargesheet and no retrenchment compensation was paid to him. It has been further stated that juniors to the workman were retained in service and the maxim of ‘last come first go’ was not adhered to. Therefore, violation of Section 25 (F, G and H) of the Industrial Disputes Act, 1947 (hereinafter referred to as, ‘the Act’) has been committed by the management. A written statement (Annexure P-4) was filed to the claim statement on 10.11.2003 and it was stated therein that respondent-workman never completed 240 days of his service in one calendar year and he was given full opportunity before termination of his services. After appreciating the evidence, the Labour Court held that the management has violated provisions of Section 25-F of the Act and accordingly, passed the award in favour of the workman. It is not in dispute that the workman was appointed as Beldar on daily wage basis. Since the employment of workman was neither in pursuance of advertisement nor his name was requisitioned from employment exchange and no equal opportunity was afforded to similarly situated persons, therefore, termination of services of the workman will not amount to retrenchment. 2 Civil Writ Petition No.9702 of 2008 The workman could not be reinstated in view of judgment of the Hon’ble Supreme Court in State of Karnataka and others v. Umadevi and others (2006) 4 SCC 1. 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, his/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. Accordingly, in view of the above, we allow the present writ petition and quash the impugned award dated 14.11.2007 (Annexure P-5) passed by the Labour Court, Rohtak. [HEMANT GUPTA] JUDGE [KANWALJIT SINGH AHLUWALIA] JUDGE September 11, 2008. rps 3