IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 9827 of 2007 Date of decision: 22nd May, 2008 The Jamal Cooperative Credit and Service Ltd. Jamal … Petitioner Versus Presiding Officer, Industrial Tribunal cum Labour Court, Hisar and others … Respondents CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Naveen Mahajan, Advocate for the petitioner. Mr. Rakesh Nagpal, Advocate for respondent No.2. KANWALJIT SINGH AHLUWALIA, J. The present writ petition has been preferred by Jamal Cooperative Credit and Service Ltd., now known as The Jamal Primary Agricultural Cooperative Society Ltd. Jamal, Tehsil and District Sirsa through its members seeking quashing of impugned award (Annexure P-2) passed by the Labour Court Hisar, whereby respondent No.2 has been reinstated into service 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 and full back wages thereafter till reinstatement. It has been averred in the writ petition that the impugned award (Annexure P-2) cannot be sustained as it is counter to the mandate Civil Writ Petition No. 9827 of 2007 of law laid for regularization and reinstatement of workman in Secretary, State of Karnataka and others v. Umadevi and others (2006) 4 SCC 1. Case of the petitioner is that services of one Om Parkash son of Ram Partap were terminated. After the termination of Om Parkash, respondent no.2 Ram Murti was appointed as Clerk. Om Parkash had approached Labour Court and the Labour Court had set aside the order of termination and ordered reinstatement of Om Parkash. Since the workman Ram Murti-respondent No.2 was working against the post, on which Om Parkash was employed, therefore respondent No.2-workman Ram Murti was appointed as Salesman on 22.11.2000 and thereafter his services were terminated on 13.12.2000 within 21 days of his appointment as Salesman. Counsel appearing for the petitioner has submitted following arguments before us: (1) On reinstatement of Om Parkash, respondent No.2 accepted his appointment as Salesman on 22.11.2000, therefore, when his services were terminated on 13.12.2000 within 21 days, violation of Section 25-F is not attracted. (2) Respondent-workman had opted and elected to file appeal before the Registrar Cooperative Societies, Haryana, who had dismissed the same on 26.07.2002 by holding as under: “Further as per the PACS rules, there is only provision of one post of secretary clerk-cum- salesman and peon-cum-chokidar each in the primary society. There are only small deposits in the society and that does not warrant an additional hand to deal with the same.” 2 Civil Writ Petition No. 9827 of 2007 Therefore, once respondent No.2 had opted for departmental appeal, he can not take recourse to Labour Court. (3) Appointment of respondent-workman initially as a Clerk and thereafter as a Salesman was not in accordance with the rules and regulations as his name was not requisitioned from employment exchange nor in pursuance of an advertisement. No equal opportunity was given to others and workman was brought into service through backdoor entry without holding any public competition and therefore as per the latest mandate of law laid by the Hon'ble Apex Court, respondent-workman is not entitled to relief granted by the Labour Court vide impugned award (Annexure P-2). Mr. Rakesh Nagpal appearing for the respondent-workman has stated that answering respondent was appointed as Clerk on 23.08.1995 against the post of Om Parkash, whose services were terminated and on the reinstatement of Om Parkash by the Labour Court, respondent-workman was adjusted on the post of Salesman on 22.11.2000 and his services were wrongly terminated on 13.12.2000. It has further been submitted that answering respondent had worked with the management for more than five years and appointment of workman as Salesman on re-joining of duty by Om Parkash cannot be termed as fresh appointment but an adjustment. Therefore, he had rendered service for more than 240 days in 12 preceding months and non-compliance of the provisions of Section 25-F of the Industrial Disputes Act was not permissible to the management and therefore learned Labour Court rightly answered the reference in favour of the workman. 3 Civil Writ Petition No. 9827 of 2007 We have given our due consideration to the submission made by the counsel for the parties. It is admitted fact that services of Om Parkash as Clerk were terminated and in his place, respondent-workman was appointed. On reinstatement of Om Parkash by the Labour Court, respondent-workman had to make way for Om Parkash. He had accepted his appointment as Salesman on 22.11.2000. Thereafter, his services were terminated on 13.12.2000. His appointment as Salesman was a fresh appointment. It is admitted before us that workman was not employed in pursuance of requisition from employment exchange or in pursuance of any advertisement. No equal opportunity was given to others to compete with the workman. Employment of workman was a backdoor entry. 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 Civil Writ Petition No. 9827 of 2007 consistent with Article 14 unless a workman had been appointed by following rules and regulations. Therefore, impugned award cannot be sustained and is liable to be quashed. Accordingly, we allow the present writ petition and quash the impugned award (Annexure P-2). [KANWALJIT SINGH AHLUWALIA] JUDGE [ASHUTOSH MOHUNTA] JUDGE May 22, 2008 rps 5