IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.14921 of 2008 Date of decision : 25th August, 2008 Subhash … Petitioner Versus Presiding Officer Labour Court and another … Respondents CORAM: HON’BLE MR. JUSTICE HEMANT GUPTA HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present : Mr. Ramesh Goyat, Advocate for Mr. Sudershan Goel, Advocate for the petitioner. KANWALJIT SINGH AHLUWALIA, J. Present writ petition has been filed by Subhash-petitioner (hereinafter called the ‘workman’) aggrieved against the award dated 26th February, 2008 (Annexure P-8) passed by the Labour Court, whereby his prayer for reinstatement with continuity in service and full back wages, has been declined by the Labour Court. Briefly stated, workman had served demand notice (Annexure P-1) on 7th November, 2000, wherein he stated that he was appointed as labourer on 01.03.1989 on daily wage basis and he continued to work till his services were terminated on 14th January, 1995. It has been stated that services of the petitioner had been terminated without complying with the mandatory provisions of Section 25-F of the Industrial Disputes Act, 1947 (hereinafter called the ‘Act’). Thereafter, the matter was referred to the CWP 14921 of 2008 Labour Court by the Government of Haryana and following reference was made: “Whether the termination of services of workman Shri Subhash is legal and justified or not? If not so, to what relief he is entitled?” Thereafter, claim statement (Annexure P-2) was filed by the workman reiterating what was stated in his demand notice. It was further averred that respondent No.2 – management has also not followed the provisions of Section 25 (G and H) of the Act. Written statement (Annexure P-3) was filed by the respondent-management, wherein claims made by the workman were denied. It was stated therein that sixteen labourers including the petitioner had preferred CWP No. 6743 of 1992 against the State of Haryana, which has been dismissed and thereafter petitioners instituted a civil suit, which was also dismissed as withdrawn. It was further stated that the petitioner-workman was engaged as labourer, as and when respondent-management required to remove grass and dry grass in the school on muster roll as per local rates fixed by the Deputy Commissioner, Sonepat and it was stated that petitioner was a labourer on daily wage basis. We have heard counsel for the petitioner. He has stated that a similarly situated workman Mohammad was ordered to be reinstated by the Labour Court and a writ petition preferred by the management against the award, whereby Mohammad was reinstated, was dismissed. Therefore, petitioner be also reinstated on parity and also on the ground that Mohammad was junior to the petitioner. We are of the view that petitioner is not entitled to the relief, which has been granted to Mohammad. Following finding returned by the 2 CWP 14921 of 2008 Labour Court demolish the argument raised by the counsel for the petitioner: “15. However, these contentions are devoid of force because though MW-1 Sh. N.K.Bakshi has deposed that the above named Mohammad was working as per the Award of the Court and has also admitted that the Civil Writ Petition, as preferred against the aforesaid award, was also dismissed but during his cross-examination itself, he has specifically and categorically denied the suggestion that the case of aforesaid Mohammad was on the similar footing to the case of the workman. Moreover, the workman has even failed to produce the copy of the award as passed by the Labour Court and the copy of the Judgment as passed by the Hon’ble High Court in the Civil Writ Petition, in favour of Mohammad from where it could be ascertained as to on what grounds he had succeeded in proving his case in both the above said Courts and as to whether those grounds were available to the workman or not. Again, though the afore named MW-1 has stated during his cross-examination that the afore named Jagdish, Satbir and Murari are still working but he has also deposed that they are working against the sanctioned posts and has also categorically deposed in para No.1 of his affidavit Ex. MW-2 that there is no sanctioned post of Labourer/ Mazdoor in the school establishment. From these depositions, it is crystal clear that the afore-named workers are not working on the post of Labourers and are not given appointment against sanctioned posts on the basis of length of their service as daily wagers and moreover, MW-1 has also specifically deposed during his cross-examination that they have neither appointed any labourer nor have regularized the services of any labourer. The workman has also not been able to prove that he was senior to the afore named Mohammad, Jagdish, Satbir, Murari etc. and that Jagdish, Satbir and Murari were appointed in violation of the prescribed rules and 3 CWP 14921 of 2008 regulations for such like appointments. Then, while deposing as WW-1, he has also failed to even disclose the names of persons who were allegedly given new appointment after the termination of his services.” As per his own claim, workman was verbally appointed on daily wage basis. His appointment into public employment was not in pursuance of any advertisement issued, affording opportunity to other persons, nor his services were requisitioned through employment exchange. No equal opportunity was afforded to similarly situated persons. In the present case, workman was not appointed as per rules and regulations but was a contractual employee on daily wage basis and termination of his services did not amount to retrenchment. He 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 4 CWP 14921 of 2008 consistent with Article 14 unless a workman had been appointed by following rules and regulations. In view of the above, we find no merit in the present writ petition and the same is liable to be dismissed. Accordingly, we uphold the impugned award (Annexure P-8) of the Labour Court and no interference by this Court is called for. [HEMANT GUPTA] JUDGE [KANWALJIT SINGH AHLUWALIA] JUDGE August 25, 2008. rps 5