IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 16123 of 2008 Date of decision: 03.03.2009 The Divisional Forest Officer (Territorial), Bhiwani .....PETITIONER VERSUS The Presiding Officer, Industrial Tribunal-cum-Labour Court, Rohtak and another ..... RESPONDENTS CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. D.S.Nalwa, Addl. A.G. Haryana, for the petitioner. Mr. Deepak Sonak, Advocate, for respondent No. 2. *** AUGUSTINE GEORGE MASIH, J. (ORAL) In the present writ petition, the challenge is to the award dated 10.07.2006 (Annexure P-5) passed by the Industrial Tribunal-cum-Labour Court, Rohtak, wherein the reference has been answered in favour of the workman holding him entitled to reinstatement on his previous post with continuity of service and 50% back wages from the date of demand notice i.e. 03.11.1998. Counsel for the petitioner contends that the finding recorded CWP No. 16123 of 2008 -2- by the Labour Court, with regard to the violation of the provisions of Section 25-G of the Industrial Disputes Act, cannot be sustained for the simple reason that the Labour Court has failed to give a finding with regard to the fact that Pat Ram and Chotte, who are junior to the workman, belong to the same category of the employee, to which the workman belongs. He further contends that merely because some junior people were retained by the Management does not show that provisions of Section 25-G of the Industrial Disputes Act, have been violated. On the other hand, counsel for respondent No. 2-workman states that this was not a stand of the Management before the Labour Court nor was this an assertion at the time of arguments before the Labour Court. Since this ground was not raised, at this stage it cannot be allowed to be contended. Has this stand been taken before the appropriate Forum. The Labour Court would have accordingly proceeded to decide the reference. The contention, as raised by respondent No. 2-workman, has force and deserves to be accepted. Perusal of the award does not indicate that such a stand was ever taken by the petitioner-Management before the Labour Court. The finding, which has been recorded, is categorically clear that Pat Ram and Chotte, who were junior to the workman, were retained by the petitioner. That being so, provisions of Section 25-G of the Industrial Disputes Act, stood violated by the Management while terminating the services of the workman. In view of this fact, no illegallity can be said to have been found in the findings recorded by the Labour Court with regard to violation of provisions of Section 25-G of the Industrial Disputes Act. Faced with this situation, counsel for the petitioner contends that since it is a public post and even if he has completed 240 days in one calendar year from the date preceding his date of termination, the said CWP No. 16123 of 2008 -3- workman is not entitled to be reinstated against a public post when the engagement of the workman was not in accordance with the Recruitment Rules and further after giving an opportunity to all eligible candidates. This would amount to violation of Articles 14 and 16 of the Constitution of India and the appointment being not in consonance with the provisions of Constitution, the award is not sustainable. Reliance has been placed on the decisions of the Hon'ble Supreme Court in the cases reported as 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 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 respondent-workman was engaged on a temporary post without following the 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. He further submits that even if persons junior to him have been retained, the retention of such juniors will not confer any right in favour of the workman to be reinstated. For making this submission, reliance has been placed by a judgment of the Hon'ble Supreme Court in Jaipur Development Authority vs. Ramsahai and another, (2006) 11 SCC 684. I have heard the counsel for the parties and have gone through the records of the case as well as the impugned award dated 10.07.2006 (Annexure P-5) passed by the Presiding Officer, Industrial CWP No. 16123 of 2008 -4- Tribunal-cum-Labour Court, Rohtak. I am of the opinion that the workman was engaged against a public post. 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. Still further, the retention of juniors will not confer any right on the workman to be reinstated as illegality in continuing to engage a daily wager will only mean perpetuating an illegality. 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. In view of the above, the award granting reinstatement and 50% back wages to the workman-respondent No. 2 is not sustainable. Consequently, the impugned award dated 10.07.2006 (Annexure P-5), is set aside. As the workman has worked for a period of more than seven years, 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 Manager and others vs. Keshab Deb, 2008 (4) SCT 33. This writ petition is allowed in above terms. The petitioner is directed to pay compensation of Rs. 70,000/- to the respondent No. 2- workman within a period of two months from the date of receipt of a copy of this order. Counsel for respondent No. 2-workman states that the workman stands reinstated in service but in the light of the order passed by this Court, his claim would no more survive. In any case, he contends that he would move a representation to the petitioner, who may consider the same sympathetically and pass an appropriate order. CWP No. 16123 of 2008 -5- A direction is issued to the petitioner that in case, a representation is made by the workman-respondent No. 2, the same may be considered sympathetically. ( AUGUSTINE GEORGE MASIH ) JUDGE March 03, 2009 pj