IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.3179 of 2008 Date of decision : 29th September, 2008 The Meham Cooperative Sugar Mill Ltd. … Petitioner Versus The Presiding Officer and another … Respondents CORAM: HON’BLE MR. JUSTICE HEMANT GUPTA HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present : Mr. S.K. Verma, Advocate for the petitioner. Mr. S.P. Chopra, Advocate for respondent No.2. KANWALJIT SINGH AHLUWALIA, J. Present writ petition has been preferred by The Meham Cooperative Sugar Mill Ltd., Meham, Tehsil Meham, District Rohtak through its Managing Director (hereinafter referred to as, ‘the management’) with a prayer that a writ in the nature of certiorari be issued and the impugned award dated 30.10.2007 (Annexure P-4) passed by the Labour Court Rohtak be set aside, whereby respondent No.2 Satbir Singh (hereinafter referred to as, ‘the workman’) has been ordered to be reinstated into service with continuity of service and 50 percent back wages. Civil Writ Petition No.3179 of 2008 Respondent-workman, on 24.08.1991, served a demand notice (Annexure P-1) upon the management, wherein it was stated that he was engaged on 15.12.1990 as a Driver on daily wage basis and the management terminated the services of the workman on 03.08.1991 without assigning any reason. It has been further submitted that no notice was given to the workman, no enquiry was held, no show cause notice was issued and even retrenchment compensation was not paid. Therefore, it has been stated that there has been violation of Section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as, ‘the Act’). In the demand notice, it was further stated that one Krishan, who was engaged later than the workman, is continuing to work with the management. Therefore, there has been also contravention of Section 25-H and 25-N of the Act. The State Government had made a reference to the Labour Court. The workman had submitted claim statement (Annexure P-2), in which averments made in the demand notice were reiterated. In the written statement filed to the claim statement, it was disputed that the workman had worked for more than 240 days in the last 12 preceding months. It was stated that he had only worked for 207 days. It was further submitted that regular selection through employment exchange was made by the Selection Committee under the Rules on 28.10.1991 and 26.12.1991, therefore, respondent No.2-workman, being a daily wager, cannot equate himself with regularly selected Drivers. Inference can be drawn that workman had to make way for regularly selected persons. Labour Court held that there has been violation of Section 25-G of the Act. Since the entry of workman into service was a backdoor entry and was neither in pursuance of any advertisement issued nor his name was requisitioned from any employment exchange and no equal 2 Civil Writ Petition No.3179 of 2008 opportunity was afforded to similarly situated persons, therefore, termination of services of the workman will not amount to retrenchment. 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. It has been held by Hon'ble Supreme Court in Jaipur Development Authority v. Ramsahai and another, (2006) 11 Supreme Court Cases 684, wherein it has been held as under: “28. We would, therefore, proceed on the basis that there had been a violation of Sections 25-G and 25-H of the Act, but, the same by itself, in our opinion, would not mean that the Labour Court should have passed an award of reinstatement with entire back wages. This Court time and again has held that the jurisdiction under Section 11-A must 3 Civil Writ Petition No.3179 of 2008 be exercised judiciously. The workman must be employed by State within the meaning of Article 12 of the Constitution of India, having regard to the doctrine of public employment. It is also required to recruit employees in terms of the provisions of the rules for recruitment framed by it. The respondent had not regularly served the appellant. The job was not of perennial nature. There was nothing to show that he, when his services were terminated any person who was junior to him in the same category, had been retained. His services were dispensed with as early as in 1987. It would not be proper to direct his reinstatement with back wages. We, therefore, are of the opinion that interest of justice would be subserved if instead and in place of reinstatement of his services, a sum of Rs.75,000 is awarded to the respondent by way of compensation as has been done by this Court in a number of its judgments, (See State of Rajasthan v. Ghyan Chand, (2006) 7 SCC 755).” Present writ petition was instituted and a Co-ordinate Bench of this Court, on March 3, 2008, issued notice and stayed the operation of the award subject to deposit of Rs.30,000/- in the registry as cost. On August 14, 2008, it was noticed by the Co-ordinate Bench that Rs.30,000/- as directed vide order dated March 3, 2008 has not been deposited. We have been informed by the counsel for the petitioner that on 26th March, 2008, the amount of Rs.30,000/- has been deposited. There is no doubt that respondent No.2 is a workman, who has been engaged in litigation since 24.08.1991 when he served demand notice. To balance the equities, we are of the view that even though the writ petition preferred by the management is to be allowed, Rs.30,000/- deposited by the 4 Civil Writ Petition No.3179 of 2008 management in the registry can be disbursed to the respondent-workman as compensation. Consequently, present writ petition is allowed. However, respondent No.2-workman shall be entitled to the lumpsum compensation of Rs.30,000/- in lieu of the benefit, which accrue to the workman under Section 17-B of the Act. [HEMANT GUPTA] JUDGE [KANWALJIT SINGH AHLUWALIA] JUDGE September 29, 2008. rps 5