Civil Writ Petition No. 9885 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Misc. No. 1995 of 2008 and Civil Writ Petition No. 9885 of 2006 Date of decision: March 27, 2008 State of Haryana through DETC, Sonepat (Haryana) … Petitioner Versus Shri Rajinder Kumar and another … Respondents CORAM: HON’BLE MR. JUSTICE S. S. SARON HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Sunil Nehra, AAG Haryana for the State. Mr. Jaspal Singh Maanipur, Advocate for respondents. KANWALJIT SINGH AHLUWALIA, J. CM is allowed subject to just exceptions. Annexure R-1/3 is taken on record. MAIN CASE The present writ petition has been filed by State of Haryana through Deputy Excise and Taxation Commissioner, Sonepat praying that award passed by the Presiding Officer, Industrial Tribunal-cum-Labour Court Panipat (hereinafter referred to as the Labour Court) (Annexure P- 20) cannot be sustained as the same is in violation of mandate of law laid by Hon'ble Apex Court in Secy., State of Karnataka versus Uma Devi, Civil Writ Petition No. 9885 of 2006 2 2006 (4) SCC 1. Mr. Sunil Nehra appearing for the State has emphasized and repeatedly brought to our notice few portions of the judgment of Uma Devi supra, which will be necessary to be reproduced here: “Para 4: ………..It is time, that the courts desist from issuing orders preventing regular selection or recruitment at the instance of such persons and from issuing directions for continuance of those who have not secured regular appointments as per procedure established. The passing of orders for continuance tends to defeat the very constitutional scheme of public employment. It has to be emphasised that this is not the role envisaged for the High Courts in the scheme of things and their wide powers under Article 226 of the Constitution are not intended to be used for the purpose of perpetuating illegalities, irregularities or improprieties or for scuttling the whole scheme of public employment. Its role as the sentinel and as the guardian of equal rights protection should not be forgotten.’ “Para 43: ……….It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules………..” “Para 45: While directing that appointments, temporary or casual, be regularized or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain – not at arm’s length – since he might have been searching for some employment so as to eke out his Civil Writ Petition No. 9885 of 2006 3 livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible………..” Mr.Sunil Nehra has also placed reliance upon Indian Drugs & Pharmaceuticals Ltd. v. Workmen, Indian Drugs & Pharmaceuticals Ltd., 2007 (1) Supreme Court Cases (408). Briefly stated Shri Rajinder Kumar, workman-respondent No.1 was appointed, as per demand notice (Ex.P-18), as Peon-Sewadar on 13.07.1994 on daily wages at the rates fixed by Deputy Commissioner, Sonepat. It is further stated that on 28th November, 1998 his services were terminated and thus violation of Section 25-F, 25-G and 25-H of Industrial Disputes Act was committed by the petitioner-management. In reply (Ex.P- 19) to the demand notice, management took two pleas. Firstly, the workman has not completed 240 days and secondly Department of Excise and Taxation is not an industry. The learned labour Court in the impugned award (Annexure P-20) held that the Department of Excise is an industry and the workman- respondent No.1 has completed 240 days in the 12 calendar months preceding the termination, therefore, he is entitled to be re-instated with continuity of service and full back wages. Civil Misc. No. 1995 of 2008 has been preferred by the workman-respondent No.1 to place on record the judgment passed by this Court in CWP No. 4560 of 2007 titled as Excise and Taxation Commissioner, Haryana and another vs. Shri Krishan Singh and another decided on 30th March, 2007 to urge that this Court has held that Civil Writ Petition No. 9885 of 2006 4 Department of Excise is an industry. Vide a separate order, we have taken the judgment on record as Annexure R-1/3. At the outset, Mr. Sunil Nehra appearing for the State has stated that he has no quarrel with the ratio of the judgment and is ready to accept for the sake of arguments of this case only, that the Department of Excise is an industry, and even if it is presumed that the Department of Excise is an industry, workman is not entitled to re-instatement and has placed reliance upon judgment of this Court rendered in CWP No. 4550 of 2006 titled as State of Haryana vs. Jasmer Singh and another decided on 6th November, 2007, wherein it has been held as under: “We are of the view that the workman having been appointed only on daily wages, without following any procedure, could not be reinstated into service, in view of law laid down by the Hon'ble Supreme Court in 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. Moreover, appointment on daily wages being terminable as per contract, the case will fall under Clause (bb) to Section 2(oo) of the Act and termination will not amount to retrenchment, as held by the Hon'ble Supreme Court in Municipal Council, Samrala v. Raj Kumar, (2006) 3 SCC 81.” It is apparent that the workman was employed on daily wages and no regular procedure was followed and the constitutional scheme for public employment was not adhered to as name of the workman respondent was not requisitioned through employment exchange. Therefore, his entry into the service through the backdoor cannot be permitted. Even though, the workman has completed 240 days as per finding of fact recorded by the learned labour Court, the award cannot be Civil Writ Petition No. 9885 of 2006 5 upheld as there is violation of Article 14 and 16 of the Constitution, which grant right of equality to all, in matters of public employment. The fair competition having not been followed, the equal opportunity was not extended to all when workman-respondent was recruited as daily wager. Therefore, by way of the award, he cannot be allowed continuity of service. Therefore, we cannot sustain the award and same is quashed. In the present case, workman-respondent, as per demand notice (Ex.P-18) joined the petitioner-management on 13th July, 1994. His services were terminated on 28th November, 1998. Reference was made in year 2003. Therefore, on equity, workman is entitled to compensation. In Mehboob Deepak v. Nagar Panchayat, Gujraula and another (2008) 1 Supreme Court Cases 575, the Hon'ble Supreme Court observed as under: “12. It is now well settled by a catena of decisions of this Court that in a situation of this nature instead and in place of directing reinstatement with full back wages, the workmen should be granted adequate monetary compensation. [See M.P. Admn v. Tribhuban, (2007) 9 SCC 748].” This Court also in recent judgments, in CWP No. 10552 of 2006 titled Municipal Corporation Faridabad vs. Presiding Officer, Labour Court, Faridabad and another decided on 12th March, 2008 and CWP No. 7996 of 2006 titled Haryana State Agricultural marketing Board Panchkula vs. Bahadur and another decided on December 3, 2007, has held that the fact that re-instatement of workman cannot be ordered, to balance equities monetary compensation can be granted to the workman, where initial appointment has been held illegal violating the constitutional scheme of public employment. Therefore, we feel that ends of justice will be met in case a lumpsum compensation of Rs.25,000/- is awarded in favour of the Civil Writ Petition No. 9885 of 2006 6 workman and he will not be entitled to any back wages as we have already held that award is liable to be quashed. [KANWALJIT SINGH AHLUWALIA] JUDGE [S. S. SARON] JUDGE March 27, 2008. rps