IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.5096 of 2008 (O&M) Date of decision : 4th September, 2008 Executive Engineer, Provincial Division, PWD (B&R) Division, Bhiwani … Petitioner Versus Hoshiar Singh and another … Respondents CORAM: HON’BLE MR. JUSTICE HEMANT GUPTA HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present : Mr. S.K. Hooda, Senior DAG Haryana for the petitioner. Mr. Sanjay Kaushal, Advocate for respondent No.1. KANWALJIT SINGH AHLUWALIA, J. Civil Misc. No. 17162 of 2008 CM allowed. Reply on behalf of respondent No.1 is taken on record. Civil Writ Petition No. 5096 of 2008 Present writ petition has been preferred by Executive Engineer, Provincial Division, PWD (B&R) Division, Bhiwani (hereinafter called the ‘management’) against Hoshiar Singh respondent No.1 (hereinafter called the ‘workman’). Petitioner is aggrieved against the impugned award dated 22.11.2007 (Annexure P-6) passed by learned Labour Court, Rohtak, whereby respondent-workman has been ordered to Civil Writ Petition No.5096 of 2008 be reinstated on his previous post with continuity of service and 50 per cent back wages from the date of demand notice. In the present petition, notice of motion was issued. Respondent-workman served a demand notice (Annexure P-1) on 17.07.2000, wherein it was stated that he was engaged as Chowkidar by Executive Engineer, Provincial Division, PWD B&R Branch, Bhiwani on 01.09.1999. Services of the workman were terminated on 10.07.2000. It has been stated that the workman had worked for more than 240 days in the last preceding 12 calendar months and by terminating his services without issuing any notice, petitioner-management has violated provisions of Section 25-F of the Industrial Disputes Act, 1947. It has been further stated therein that the principle of ‘last come first go’ was not adhered to and there is a violation of Section 25-H of the Industrial Disputes Act, 1947 (hereinafter called the ‘Act’). The matter was referred by the State of Haryana to the Labour Court. Workman submitted claim statement (Annexure P-2), in which he reiterated what has been stated in demand notice (Annexure P-1). Written statement (Annexure P-3) was filed to the claim statement, wherein it was stated that the workman was engaged on daily wage basis. Hence, no notice of termination was required. However, a retrenchment compensation was offered to the workman vide draft amounting to Rs.1500/-, but the same was not accepted, even though the same was also sent by registered post. Learned Labour Court held that compensation was offered after a period of several months from the date of retrenchment, therefore, there is a violation of Section 25-F of the Industrial Disputes Act, 1947 and it further held that neither any notice was served nor pay of the notice period and not even retrenchment compensation was paid to the workman. 2 Civil Writ Petition No.5096 of 2008 Thus there was violation of Section 25-F of the Industrial Disputes Act, 1947. The workman 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 consistent with Article 14 unless a workman had been appointed by following rules and regulations. In view of nature of appointment of the respondent-workman, as noticed hereinabove, we find that the respondent-workman cannot be directed to be reinstated. No such person can be taken in service or his services regularized when public employment is involved. Learned counsel for the respondent-workman has stated that as per the finding of the Labour Court, amount of retrenchment was not paid at the time of retrenchment and if subsequently the amount is paid, 3 Civil Writ Petition No.5096 of 2008 violation of Section 25-F of the Act cannot be cured. We are afraid, this contention of the respondent-workman also cannot be accepted. In Hoshiarpur Central Cooperative Bank Ltd. v. Presiding Officer, Labour Court and others, 2005(1) Recent Service Judgments 222, a judgment of this Court, it was held that delay in payment of compensation cannot be considered as violation of Section 25-F of the Act. A similar view has also been taken by Hon’ble Apex Court in Parmod Jha and others v. State of Bihar, AIR 2003 Supreme Court 1872. Therefore, on this count also, reasoning given by the Labour Court cannot be sustained. Consequently, we accept the present writ petition, set aside the impugned award and hold that respondent-workman is not entitled to any relief as granted by the Labour Court vide impugned award (Annexure P-6). [HEMANT GUPTA] JUDGE [KANWALJIT SINGH AHLUWALIA] JUDGE September 04, 2008. rps 4