IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 18735 of 2008. Date of Decision : April 30, 2009. Deputy Manager (Telecom), Ply and Install, 3rd Floor, New Telephone Exchange, M.T.S. Nagar, Jalandhar City. ....... Petitioner. Versus. Central Government Industrial Tribunal-cum-Labour Court-II, Chandigarh, and another. ....... Respondents. CORAM:HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present:- Mr. Anil Rathee, Advocate, for the petitioner. Mr. R.P. Rana, Advocate, for the respondent No. 2. AUGUSTINE GEORGE MASIH, J. (ORAL). In the present writ petition, the challenge is to the award dated 18.10.2007 (Annexure-P-5), passed by the Central Government Industrial Tribunal-cum-Labour Court-II, Chandigarh, vide which the reference has been answered in favour of the workman, holding him entitled to reinstatement in service on the ground that the provisions as contained in Section 25-F of the Industrial Disputes Act, have not been complied with. A direction has been issued to the Management to take back the workman in service and pay him an amount of Rs. 50,000/- in lump-sum as back wages. Counsel for the petitioner contends that even if the findings as has been recorded by the Labour Court are taken to be correct, the workman C.W.P. No. 18735 of 2008. would not be entitled to reinstatement in service as the appointment of the workman was as a Mazdoor and his services were availed off as and when the work was available. He contends that there is no post of Mazdoor available nor was he appointed against any sanctioned post and, therefore, he did not have any right to hold the post. He further contends that the award passed by the Industrial Tribunal-cum-Labour Court, cannot be sustained in the light of the judgment of Hon'ble the Supreme Court in the cases of Ghaziabad Development Authority and another Versus Ashok Kumar and another, 2008(4) S.C.C. 261, Mahboob Deepak Versus Nagar Panchayat, Gajraula, (2008) 1 S.C.C. 575, M.P. Administration Versus Tribhuwan, (2007) 9 S.C.C. 748, and State of M.P. and others Versus Lalit Kumar Verma, (2007) 1 S.C.C. 575, wherein Hon'ble the Supreme Court has held that if the appointment of the workman is de-hors the statutory rules and not against any sanctioned post, the reinstatement of the workman, cannot be ordered even if there is violation of the provisions of Industrial Disputes Act. On the other hand, counsel for the respondent-workman contends that the workman was appointed as a Mazdoor on the recommendation of his name through the Employment Exchange. He contends that the appointment of the workman was in accordance with law and, therefore, the award passed by the Industrial Tribunal-cum-Labour Court, is fully justified and does not call for any interference by this Court. I have heard counsel for the parties and have gone through the records of the case. The admitted position which is apparent is that the workman was given appointment as a Mazdoor. His name was although sponsored by -2- C.W.P. No. 18735 of 2008. the Employment Exchange but the appointment was not on a sanctioned post and his services were availed off by the Management as and when the work of a Mazdoor was available. The appointment of the workman was not on regular basis but dependent on the availability of work. As the appointment was not as per the statutory rules governing the service, the reinstatement of the workman as ordered by the Industrial Tribunal-cum-Labour Court cannot be sustained in view of the judgments passed by Hon'ble the Supreme Court reliance whereof has been made by counsel for the petitioner. The impugned award, therefore, cannot be sustained as the same is not in consonance with the judgments passed by Hon'ble the Supreme Court. Faced with this situation, counsel for the respondent-workman contends that even if the workman is not entitled to reinstatement in service but in any case, the workman would be entitled to compensation because the termination of the workman is not in accordance with the Industrial Disputes Act and a finding to that effect has been recorded by the Industrial Tribunal- cum-Labour Court which is as per evidence led by the parties and has not been disputed by the Management. He relies upon the judgment of Hon'ble the Supreme Court in the case of Telecom District Manager and Others Versus Kesheb Deb, 2008 (4) S.C.T. 33, and a Division Bench Judgment of this Court in the case of State of Haryana Versus Ishwar Singh and another, 2008(3) S.C.T. 788. In the light of the above two judgments, the workman would be entitled to compensation in lieu of reinstatement in the light of the fact that the services of the workman were terminated in violation of the provisions of Section 25-F of the Industrial Disputes Act. -3- C.W.P. No. 18735 of 2008. Perusal of the award would show that the workman has been granted an amount of Rs. 50,000/- in lump-sum as back wages. It would be just and appropriate that the said amount be treated as the amount of compensation in lieu of reinstatement in service. In view of the above, the writ petition is allowed. The impugned award dated 18.10.2007 (Annexure-P-5), passed by the Industrial Tribunal-cum-Labour Court-II, Chandigarh, is hereby set aside. However, the workman is held entitled to compensation of Rs. 50,000/- to balance equity between the parties. Further a direction is issued to the petitioner to release the amount of compensation as assessed above i.e. Rs. 50,000/- to the workman within a period of two months from the date of receipt of certified copy of this order. The writ petition stands disposed of. (AUGUSTINE GEORGE MASIH) JUDGE April 30, 2009. sjks. -4-