C.W.P. No.11111 of 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.11111 of 2006 Decided on :19-11-2008 Municipal Council, Sanaur . ....Petitioner VERSUS Presiding Officer, Labour Court & another ....Respondents CORAM:-HON'BLE MR. JUSTICE HEMANT GUPTA. HON'BLE MR. JUSTICE NAWAB SINGH. Present:- Mr. C.M. Sharma, Advocate for the petitioner. Mr. Akshay Bhan, Advocate and Mr. Santosh Sharma, Advocate for respondent No.2. HEMANT GUPTA, J The challenge in the present writ petition is to the Award of the Labour Court dated 10.02.2006 (Annexure P-4), whereby respondent No.2 (hereinafter referred to as 'the workman') was ordered to be reinstated in service, but without back wages on account of violation of Section 25-F of Industrial Disputes Act, 1947 (for short 'the Act'). It is the case of the workman that he was engaged on 1.8.1994 and continued to work as a Clerk till 29.09.1996. On 30.09.1996, the Management has terminated the services of the workman without issuance of any notice or notice pay or without payment of any compensation and therefore, the Management is liable to reinstate him and pay the entire back wages. The learned Labour Court found that the workman has served with Management continously from 1.8.1994 to 29.9.1996 and the C.W.P. No.11111 of 2006 -2- Management has terminated the services of the workman on 30.09.1996 without issuance of any notice, or any enquiry or without payment of any compensation and thus, in violation of Section 25F of the Act. It was thus, held that the termination is illegal and consequently, the workman was ordered to be reinstated in service, but without any back wages. Learned counsel for the petitioner has relied on a decision of the Supreme Court in cases reported as Ghaziabad Development Authority & another Vs. Ashok Kumar & another, 2008 (4) SCC 261, Mahboob Deepak vs. Nagar Panchayat, Gajraula, (2008) 1 SCC 575, M.P. Administration Vs. Tribhuwan, (2007) 9 SCC 748, Utrranchal forest Development Corpn. Vs. M.C. Joshi, (2007) 2 SCC (L&S) 813, State of M.P. And others Vs. Lalit Kumar Verma, (2007) 1 SCC 575, to contend that the post under the State are required to be filled up in terms of the Recruitment Rules and by inviting applications from all eligible candidates. It is contended that the respondent-workman was engaged on daily wages 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 is not entitled to be reinstated and also for the grant of back wages. In M.P. Administration's case (supra), the Court held to the following effect:- 6. "The question, however, which arises for consideration is as to whether in a situation of this nature, the learned Single Judge and consequently the Division Bench of the Delhi High Court should have directed reinstatement of the respondent with full back wages. Whereas at one point of time, such a relief used to be automatically granted, but keeping in view several other factors and in particular the doctrine of public employment and C.W.P. No.11111 of 2006 -3- involvement of the public money, a change in the said trend is now found in the recent decisions of this Court. This Court in a large number of decisions in the matter of grant of relief of the kind distinguished between a daily wager who does not hold a post and a permanent employee. It may be that the definition of "workman" as contained in Section 2(s) of the Act is wide and takes within its embrace all categories of workmen specified therein, but the same would not mean that even for the purpose of grant of relief in an industrial dispute referred for adjudication, application of constitutional scheme of equality adumbrated under Articles 14 and 16 of the Constitution of India, in the light of a decision of a Constitution Bench of this Court in Secy., State of Karnataka v. Umadevi and other relevant factors pointed out by the Court in a catena of decisions shall not be taken into consideration. 7. The nature of appointment, whether there existed any sanctioned post or whether the officer concerned had any authority to make appointment are relevant factors." The said observations are in the context of engagement of a workman engaged on temporary basis from time to time. It was held that the Industrial Court exercises its discretionary jurisdiction under Section 11A of the Act, when it directs the amount of compensation to be paid to the workman. In Mahboob Deepak's case (supra), the Court held to the following effect:- 9. “Due to some exigency of work, although recruitment on daily wages or on an ad hoc basis was permissible, but by reason thereof an employee cannot claim any right to be permanently absorbed in service or made permanent in absence of any statute or statutory rules. Merely because an employee has completed 240 days of work in a year preceding the date of retrenchment, the same would not mean that his services were liable to be C.W.P. No.11111 of 2006 -4- regularised.” In Ghaziabad Development Authority's case (supra), the dispute referred to the Labour Court was regarding termination of daily wagers appointed on ad hoc basis. It was held to the following effect:- 19. “A statutory authority is obligated to make recruitments only upon compliance with the equality clause contained in Articles 14 and 16 of the Constitution of India. Any appointment in violation of the said contitutional scheme as also the statutory recruitment rules, if any, would be void. These facts were required to the kept in mind by the Labour Court before passing an award of reinstatement. 20. Furthermore, public interest would not be subserved if after such a long lapse of time, the first respondent is directed to be reinstated in service.” In view of the aforesaid judgments, we are of the opinion that the workman, who has worked on daily wages for more than 2 years or so is not entitled to be reinstated or the back wages. In view of the above, we allow the present writ petition and the impugned award dated 10.02.2006 (Annexure P-4), is set aside. However, the workman shall be entitled to wages in terms of Section 17-B of the Act from the date of Award till today. The same shall be payable to the workman within 4 months from the date of receipt of copy of the order. (Hemant Gupta) Judge 19th November 2008. (Nawab Singh) Monika Judge