IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 5205 of 2009. Date of Decision : May 12, 2009. Sanatan Dharma College (Lahore) Ambala Cantt through its Principal. ....... Petitioner . Versus. Raj Kumar s/o Shri Gainda Ram, r/o Shahapur, District Ambala, and another. ....... Respondents. CORAM:HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present:- Mr. Vikrant Sharma, Advocate, for the petitioner. Mr. J.S. Cooner, Advocate, for the respondent No. 1. AUGUSTINE GEORGE MASIH, J. (ORAL). In the present writ petition, the challenge is to the award dated 20.11.2008 (Annexure-P-4), vide which the reference has been answered in favour of the workman, holding him entitled to reinstatement in service alongwith all the consequential service benefits including continuity of service and full back wages. Counsel for the petitioner contends that the appointment of the workman was as Cycle Stand Attendant on part time basis. He continued to work as such but thereafter his services were terminated on 10.04.2005 as per workman and as per Management on 31.03.2005. The Labour Court has come to a conclusion that the workman had completed more than 240 days in service and that factual position cannot be disputed. However, he contends that since it was an appointment on part time contract basis, therefore, provisions of Section 25-F of the Industrial Disputes Act were not required to C.W.P. No. 5205 of 2009. be complied with. He further contends that the post on which the workman has been ordered to be reinstated is a public post which could only be filled up after complying with the provisions as contained under the statutory rules governing the service, and further after giving an advertisement and thereafter selection process. Since the appointment of the workman was merely on an application submitted by him without calling for any further application or consideration or selection process, the appointment was de hors the statutory rules governing the service and, thereafter, he was not entitled to reinstatement as he was not holding any post. On the other hand, counsel for the respondent-workman contends that the factual position with regard to the workman completed more than 240 days in the 12 preceding calendar months from the date of his termination, is not disputed. Although, the workman was appointed on public post on contract basis, if his services were to be terminated, the requirement of fulfilling the provisions as contained under Section 25-F of the Industrial Disputes Act was mandated under the Industrial Law. That having not been complied with, the findings as recorded by the Labour Court, cannot be faulted with. Counsel for the respondent further submits that the workman was appointed as a full time Chowkidar and, therefore, the contention of the Management that he was a part time worker and that at the Cycle Stand, is not sustainable. He further contends that the award passed by the Labour Court is fully justified and does not call for interference by this Court. I have heard counsel for the parties and have gone through the records of the case. -2- C.W.P. No. 5205 of 2009. There is no dispute with regard to the fact that the appointment of the workman was de hors the statutory rules as his appointment was not in consonance with the requirement of law for making regular appointment. It is also not the case of the workman that the appointment of the workman was made as per rules governing the service. Whether the workman was a part timer or full timer that really would not determine his right to hold the post. The question is whether the appointment of the workman was as per the statutory rules governing the service. Thus, if the appointment of the workman was not in consonance with the provisions of the statute governing the service, the workman would not be entitled to hold the post. Hon'ble the Supreme Court in the cases of Ghaziabad Development Authority and another Versus Ashok Kumar and another, 2008(4) S.C.C. 261, Mahboob Deepak Versus Nagar Panchayat, Gajraula, (2008) 1 S.C.C. 575, M.P. Administration Versus Tribhuwan, (2007) 9 S.C.C. 748, and State of M.P. and others Versus Lalit Kumar Verma, (2007) 1 S.C.C. 575, has held that the termination although in violation of the provisions as contained under the Industrial Disputes Act does not entitle the workman to reinstatement in case the appointment of the said workman is not in consonance with the statutory rules governing the service. That being the position, the impugned award dated 20.11.2008 (Annexure-P-4), passed by the Industrial Tribunal-cum-Labour Court, Ambala, ordering reinstatement of the workman, is not sustainable. However, in the light of the fact that the service of the workman was terminated not in consonance with the Industrial Disputes Act, the workman would be entitled to compensation to settle equities between the parties as per the judgment of Hon'ble the Supreme Court in the case of Telecom -3- C.W.P. No. 5205 of 2009. District Manager and others Versus Kesheb Deb, 2008 (4) S.C.T. 33, and a Division Bench of this Court in the case of State of Haryana Versus Ishwar Singh and another, 2008(3) S.C.T. 788. The workman had worked with the petitioner-management from 01.07.2001 to 10.04.2005, therefore, the workman is held entitled to compensation of Rs. 35,000/-. In view of the above, the impugned award dated 20.11.2008 (Annexure-P-4), passed by the Industrial Tribunal-cum-Labour Court, Ambala, is hereby set aside. However, the workman is held entitled to compensation of Rs. 35,000/-. Direction is issued to the petitioner-management to release the amount of compensation as assessed above to the workman within a period of two months from the date of receipt of certified copy of this order. The writ petition stands disposed of in above terms. (AUGUSTINE GEORGE MASIH) JUDGE May 12, 2009. sjks. -4-