IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP NO. 1043 of 1997 DATE OF DECISION: 02.03.2009 Shyam Kumar s/o Late Sh. Jai Bhagwan ….. PETITIONER VERSUS The Presiding Officer, Industrial Tribunal-cum-Labour Court, Panipat and others ….. RESPONDENTS CORAM:HON’BLE MR. JUSTICE AUGUSTINE GEORGE MASIH PRESENT: Mr. Sanjiv Gupta, Advocate, For the petitioner. Mr. D.S.Nalwa, Addl. A.G. Haryana. *** AUGUSTINE GEORGE MASIH, J. (ORAL) In the present writ petition, the challenge is to the award dated 14.06.1996 (Annexure P-1) passed by the Industrial Tribunal-cum-Labour Court, Panipat, vide which the reference has been answered against the workman primarily on the ground that the PWD (B&R) is not an ‘industry’ relying upon a Full Bench judgment of this Court in the case of State of Punjab vs. Kuldip Singh and another, reported in 1983 LAB.I.C.83. On this basis, the Labour Court has further observed that the applicant is not a workman. CWP NO. 1043 of 1997 -2- Counsel for the petitioner relies upon a judgment of this Court in the case of State of Punjab vs. Bodh Raj, 1995 (4) RSJ 284, to contend that this Court has, in a subsequent judgment relying upon a judgment of the Hon’ble Supreme Court in the case of Des Raj vs. State of Punjab, 1988 (2) SLR 789, held that the judgment passed by the Full Bench, referred to above, is not good law and the same shall be deemed to have been over-ruled. In view of this, the counsel for the petitioner contends that PWD (B&R) is an ‘industry’. He further relies upon a judgment of this Court in the case of State of Punjab vs. Hari Dass, 1999 (1) SCT 489, to contend that PWD (B&R) is an ‘industry’ within the meaning of Section 2 (j) of the Industrial Disputes Act (hereinafter referred to as ‘the Act’). That being so, he contends that as the finding has been recorded by the Labour Court that the workman has indeed completed 240 days in the 12 preceding months, therefore, the protection, as provided under Section 25- F of the Act would be available to the workman. The admitted position is that the said provisions have not been complied with, therefore, the workman would be entitled to reinstatement in service with continuity thereof along with back wages. On the other hand, counsel for the respondents has contended that the award of the Labour Court is fully valid as the reliance was placed on a Full Bench judgment of this Court, which has not been specifically over-ruled by the Hon’ble Supreme Court and, therefore, still holds the field. He further contends that even if as has been held by the learned Single Judge of this Court, the judgment whereof has been relied upon by the counsel for the petitioner, is accepted that the PWD (B&R) is an ‘industry’ still as the appointment of the workman was dehors the statutory Rules, reinstatement to the workman cannot be granted as it is a public CWP NO. 1043 of 1997 -3- post and at the most, the workman would be entitled to the compensation in the light of the judgment of the Hon’ble Supreme Court as well as the Division Bench judgment of this Court. I have heard counsel for the parties and have gone through the records of the case. The reliance made by the counsel for the petitioner on the judgment of the State of Punjab vs. Budh Raj (supra) would clearly indicate that this Court, relying upon the judgment of the Hon’ble Supreme Court, has come to the conclusion that the Full Bench judgment of this Court in Kuldip Singh’s case (supra) shall be deemed to have been over-ruled. In para-3 of the said judgment, this Court has held as follows: “3. These writ petitions which are directed against the aforesaid award of the Labour Court were admitted by the motion Bench because the learned counsel contended that the Public Works Department, Central Works Division (B&F), where the respondent-workmen were working as daily wagers was not an industry within the meaning of clause (j) of Section 2 of the Act and it is this issue that has been agitated before me at the time of final arguments. In support of his contention, learned State counsel relied upon Full Bench judgments of this court in State of Punjab versus Kuldip Singh and another, 1983 S.L.R. 710 and in Om Parkash versus Executive Engineer, SYL, Kurukshetra and others, 1984 Lab.I.C. 1165. I am not inclined to accept this argument for the reason that the State did not press this issue before the Labour Court and it appears that no evidence was led to show the nature of the activities of the Department. Even otherwise, there is no merit CWP NO. 1043 of 1997 -4- in the contention because the Full Bench judgment of this court in Kuldip Singh's case (supra) was noticed by the later Full Bench in Om Parkash's case (supra) and the later case became the subject matter of appeal before the Supreme Court in Des Raj etc. versus State of Punjab & Ors. AIR 1988 S.C. 1182. The decision of the full Bench in Om Parkash's case (supra) was held to be not a good law and the Irrigation Department of the State Government was held to be an industry. The decision of this court in Kuldip Singh's case (supra) must, therefore, be deemed to have been over-ruled.” In the light of what has been observed by this Court and the subsequent judgment of this Court in the case of State of Punjab vs. Hari Dass (supra), I have no hesitation in holding that the PWD (B&R) is an ‘industry’ within the meaning of Section 2 (j) of the Act. The next contention with regard to reinstatement of the workman on the post, from which he was terminated for non-compliance of the provisions of Section 25-F of the Act, it would suffice to say that the post, on which the workman is claiming reinstatement, is a public post, which admittedly has to be filled in accordance with the statutory Rules governing the service. The initial appointment of the workman on the post of Clerk-cum-Typist was dehors the statutory Rules and in violation of Articles 14 and 16 of the Constitution of India and, therefore, by putting him back in service, it would be perpetuating an illegality, which is not permissible under law. Further, the workman, as has been contended and the records do suggest, had been appointed on 04.09.1987 and he continued to work as Clerk-cum-Typist up to 31.12.1992. The workman would be entitled to compensation in lieu of CWP NO. 1043 of 1997 -5- reinstatement, as a specific finding has been given by the Labour Court that provisions of Section 25-F of the Act have been violated while terminating the service of the workman. Reliance has been placed by the counsel for the respondents on the decisions of the Hon'ble Supreme Court in the cases reported as Ghazibad Development Authority and another vs. Ashok Kumar and another, 2008 (4) SCC 261, Mahboob Deepak vs. Nagar Panchayat, Gajraula, (2008) 1 SCC 575, M.P. Administration vs. Tribhuwan, (2007) 9 SCC 748 and State of M.P. and others vs. Lalit Kumar Verma, (2007) 1 SCC 575 to contend that the posts under the State are required to be filled up in terms of the statutory Rules governing the service by inviting applications from all eligible candidates and thereafter, on consideration of the same, the appointment can be said to be a valid appointment. It has been contended that the petitioner-workman was engaged on a temporary post 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 was not entitled to be reinstated and also for the grant of back wages. He further submits that even if persons junior to him have been retained, the retention of such juniors will not confer any right in favour of the workman to be reinstated. For making this submission, reliance has been placed by a judgment of the Hon'ble Supreme Court in Jaipur Development Authority vs. Ramsahai and another, (2006) 11 SCC 684. As per the impugned award dated 14.06.1996 (Annexure P-1) passed by the Industrial Tribunal-cum-Labour Court, Panipat, the workman CWP NO. 1043 of 1997 -6- was engaged against a public post. Such engagement was not in terms of the statutory Recruitment Rules applicable to the post which would have required giving opportunity to all eligible candidates to apply and to be considered for appointment. Therefore, the workman cannot be ordered to be reinstated. Still further, the retention of juniors will not confer any right on the workman to be reinstated as illegality in continuing to engage a daily wager will only mean perpetuating an illegality. In Jaipur Development Authority's case (supra), the Hon'ble Supreme Court has held that even in case of breach of the provisions of Section 25-G and 25-H of the Act, the workman cannot be ordered to be reinstated. In view of the above, the award dated 14.06.1996 (Annexure P-1) passed by the Industrial Tribunal-cum-Labour Court, Panipat, is modified. As the workman has worked for a period of more than five years, I deem it appropriate to grant compensation amounting to Rs. 50,000/- to settle equities between the parties in the light of the judgment passed by the Hon'ble Supreme Court in Telecom District Manager and others vs. Keshab Deb, 2008 (4) SCT 33. This writ petition is partly allowed. The respondents are directed to pay compensation of Rs. 50,000/- to the petitioner-workman within a period of two months from the date of receipt of a copy of this order. Counsel for the petitioner further submits that the workman is ready and willing to work with the respondents-Management and the respondents have work to adjust him in service. He contends that even persons, after his termination, have been appointed and are continuing with the respondents. He prays that he may be considered for appointment, if the respondents have work, in accordance with law. CWP NO. 1043 of 1997 -7- A direction is issued to the respondents to consider the claim of the workman for appointment to the post of Clerk-cum-Typist, if they have work available with them, sympathetically. ( AUGUSTINE GEORGE MASIH ) JUDGE March 02, 2009 pj