C.W.P. No.18049 of 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.18049 of 2006 Decided on : 18-11-2008 Chief Conservator of Forests & others ....Petitioners VERSUS Amar Singh & another ....Respondents CORAM:-HON'BLE MR. JUSTICE HEMANT GUPTA. HON'BLE MR. JUSTICE NAWAB SINGH. Present:- Mr. D.S. Nalwa, Addl. A.G., Haryana for the petitioner. Mr. B.S. Saini, Advocate for respondent No.1. HEMANT GUPTA, J The challenge in the present writ petition is to the Award passed by the Labour Court on 29.11.2004 (Annexure P-3), whereby an Industrial Dispute raised by respondent No.1 (hereinafter referred to as “the workman”) was answered in favour of the workman and the workman has been ordered to be reinstated in service with continuity of service, but without back wages. It is the case of the workman that he was engaged as a worker in the Forest Department in the year 1989. He made a request for regularisation of his services as he has put in more than nine years of service. But his services were terminated on 20.01.1998 illegally and unlawfully. It is allged that no notice or compensation in lieu of the notice was given before removing him from the service though he had rendered the duty for more than 240 days in the preceding 12 months. C.W.P. No.18049 of 2006 -2- The workman examined himself as WW-1 and deposed regarding the period of his work with the Management. To controvert the same, Sh. Shamsher Singh, Range Forest Officer, appeared as MW-1 and has deposed that the workman worked on daily wages from September, 1994 to October, 1998, but with breaks. Copies of the muster roll was produced as Ex. M-1 to Ex.M-25. The Management has also produced Ex.M-26 i.e. the statement showing the month-wise working days of the workman. The learned Labour Court returned a finding that no reliance can be placed upon the statement of working days contained in Ex.M-26. But on the basis of muster roll (Ex.M-1 to Ex.M-25) in the 12 preceding months ending on October 1998, it was found that the workman has worked for 206 days. Still further, it was found that the Management has not prodcued the copies of the muster roll of the remaining months i.e. July, 1997 to October, 1998 and thus, the presumption was raised that the workman has worked for 240 days in the 12 preceding months and on the basis of such finding, the reference was answered in favour of the workman. Learned counsel for the petitioners has vehemently argued that though there was mistaken identity of the workman before the Labour Court but without examining that question any further, the fact remains that the workman has been ordered to be re-instated on a public post, the post against which he was not appointed in terms of Recruitment Rules and by inviting applications from all eligible candidates. Reliance is placed 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 C.W.P. No.18049 of 2006 -3- 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 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 C.W.P. No.18049 of 2006 -4- 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 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 C.W.P. No.18049 of 2006 -5- 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 9 years is not entitled to be reinstated in service. In view of the above, we allow the present writ petition and the impugned award dated 29.11.2004 (Annexure P-3), is set aside. However, in view of the fact that the workman has worked with the petitioner for more than 9 years, we deem it appropriate to direct the petitioners to pay compensation of Rs.60,000/- to the respondent-workman within a period of four months from the date of receipt of copy of the order. (Hemant Gupta) Judge 18th November 2008. (Nawab Singh) Monika Judge