C.W.P.No.459 of 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.459 of 2006 Date of Decision:- 17.02.2009 Haryana State Agriculture Marketing Board ....Petitioner(s) vs. Bijender Singh and another ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.Durgesh Aggarwal, Advocate for the petitioner. Mr.Vivek Shakun, Advocate for respondent No.1. *** AUGUSTINE GEORGE MASIH, J. (Oral) In the present writ petition, challenge is to the award dated 13.10.2005 (Annexure P-5) vide which the reference was answered in favour of the workman holding him entitled to reinstatement with continuity of service and full back wages from the date of demand notice i.e. 10.2.1999. The respondent-workman was appointed as Peon with the petitioner in April, 1993 on a monthly salary of Rs.1600/-. He continued to work there when his services were terminated with effect from 1.6.1996. He raised a dispute that his services have been terminated in violation of the provisions of Section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) as the same have not been complied with since no notice, enquiry or show cause notice was issued to the workman nor any C.W.P.No.459 of 2006 -2- compensation as required was paid to him at the time of his termination, a reference was made to the Labour Court and the Labour Court on the basis of the evidence produced by the respective parties came to the conclusion that indeed the termination was not in accordance with the Act and the mandatory provisions of Section 25-F having not been complied with, it ordered reinstatement of the workman with continuity of service and full back wages from the date of demand notice. Learned counsel for the petitioner contends that the initial appointment of the workman on the post of Peon was not in accordance with the Statutory Rules but was without giving any publication or complying with the requirements as mandated under Articles 14 and 16 of the Constitution of India since the post on which the workman has been reinstated is a public post. He further contends that the workman cannot be put back on a public post where his initial appointment itself is illegal and not in accordance with the Statutory Rules governing the service. He further contends that a Division Bench of this Court in C.W.P.No.493 of 2006 Haryana State Agriculture Marketing Board and another vs. Jasbir Singh and anothr, decided on 15.12.2008, in a similarly situated claim of the workman, has allowed the writ petition thereby setting aside the award and, therefore, the case being covered by the said judgment, the writ petition deserves to be allowed. In support of his contention, counsel for the petitioner has relied upon the judgments of the Hon'ble Supreme Court in the cases of Ghaziabad 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, C.W.P.No.459 of 2006 -3- (2007) 9 SCC 748, Uttranchal Forest Development Corpn. vs. M.C.Joshi, (2007) 2 SCC (L&S) 813, State of M.P. and others vs. Lalit Kumar Verma, (2007) SCC 575, to contend that the posts 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 and, therefore, even if the workman has completed 240 days of service, he is not entitled to be reinstated and also for the grant of back wages. Reliance is also placed upon the judgment of the Hon'ble Supreme Court in Jaipur Development Authority vs. Ramsahai and another, (2006) 11 SCC 684. Counsel for the petitioner further submits that at the most the workman would be entitled to compensation for the period he has worked with the petitioner but he cannot be reinstated in service in the light of Division Bench judgment of this Court in the case of State of Haryana vs. Ishwar Singh and another, 2008 (3) S.C.T. 788 and District Telecom Manager and others vs. Keshab Dev, 2008 (4) S.C.T.33. On the other hand, counsel for the respondent submits that a categoric finding has been recorded by the Labour Court that the services of the workman were terminated without complying with the mandatory provisions of the Act and therefore, he was entitled to be reinstated in service. He further contends that in compliance with the award passed by the Labour Court, the workman has been taken back in service on 24.7.2006 and he is working with the petitioner-State of Haryana without any complaint against him. C.W.P.No.459 of 2006 -4- Counsel for the petitioner in response thereto, states that in view of the prosecution having been launched against the workman and there being no stay by this Court, the workman was taken back in service in compliance with the award which was, however, subject to the decision of the present writ petition. I have gone through the records of the case and have given my thoughtful consideration to the submissions put forth by the learned counsel for the parties. It cannot be disputed that the initial appointment of the workman on the post of Peon was not as per the Statutory Rules governing his service. The post being a public post, mandated that the same would be filled in accordance with the Rules governing the service which would be in accordance with Articles 14 and 16 of the Constitution of India. That having not been done in the present case, although the termination of the services of the workman is not in accordance with the Act but that would not confer any right of reinstatement on a public post on which the appointment was not in accordance with the statutory rules. It would be perpetuating an illegality which was initially committed and, therefore, the award with regard to reinstatement of the workman with back wages cannot be sustained. Following the judgment of this Court in Ishwar Singh's and and the Hon'ble Supreme Court in Keshab Dev's cases (supra), the award dated 13.10.2005 (Annexure P-5) passed by the Industrial Tribunal-cum- Labour Court, Panipat is hereby set aside. The workman who has worked with the petitioner for three years, is held entitled to compensation of Rs.30,000/- to settle the equities between the parties in lieu of reinstatement. C.W.P.No.459 of 2006 -5- This petition is disposed of with a direction to the petitioner to make the payment of the compensation of Rs.30,000/- within a period of two months from the date of receipt of copy of this order. February 17, 2009 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE Whether referred to Reporters ________ Yes/No