IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 14635 of 2007 Date of decision: 23rd May, 2008 Divisional Forest Officer, Sirsa … Petitioner Versus Hari Chand and another … Respondents CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Sunil Nehra, Assistant Advocate General, Haryana for the petitioner. Mr. Sanjiv Gupta, Advocate for the respondent No.1. KANWALJIT SINGH AHLUWALIA, J. The present writ petition has been filed by the Divisional Forest Officer, Sirsa, district Sirsa, challenging the impugned award dated 10.07.2006 (Annexure P-1) passed by the learned Labour Court, whereby respondent No.1 (Hari Chand) was ordered to be reinstated with continuity of service and other consequential benefits including 50 per cent back wages from the date of issuance of demand notice till the date of publication of the award. Respondent No.1 – Hari Chand, as per the demand notice (Annexure P-3) was employed as a Mali in the year 1982. In the demand notice, it has been further stated that his services were illegally terminated Civil Writ Petition No. 14635 of 2007 on 01.01.1997 and there was violation of Section 25-F and 25-H of the Industrial Disputes Act. The management filed written statement (Annexure P-5) to the claim petition and submitted that the respondent-workman was only engaged as a casual labourer on daily wages for a specific period by the concerned Forest Guard. In the writ petition, it has been averred that it has been held in Secretary State of Karnataka and others v. Umadevi and others (2006) 4 SCC 1 that unless the appointment is made by following the proper competition among the qualified persons, the same would not confer any right on the appointee. 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 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 2 Civil Writ Petition No. 14635 of 2007 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 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, the respondent-workman as per demand notice (Annexure P-3), had joined the petitioner-management in the year 1982. His services were terminated on 01.01.1997. During the course of arguments, we asked the counsel for the parties that the workman should be entitled to compensation. Counsel for the petitioner placed reliance upon a Single Bench Judgment of Rajasthan High Court in Suresh Chandra v. General Manager, Rajasthan State Bridge and Construction Corporation 2003 (3) S.C.T. 430 to contend that the award of compensation will amount to alter the terms of reference and the same is not permissible. We find that the submissions made by the counsel for the petitioner is not acceptable. We hold that the workman is not entitled to reinstatement, however, on equity basis as he has rendered about 15 years of service and had served a demand notice (Annexure P-3) dated 15.04.1999 and that he is in litigation for the last nine years, he deserves compensation. In Mehboob Deepak v. Nagar Panchayat, Gujraula and 3 Civil Writ Petition No. 14635 of 2007 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.50,000/- is awarded in favour of the 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 [ASHUTOSH MOHUNTA] JUDGE May 23, 2008 rps 4