IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 18714 of 2008. Date of Decision : April 28, 2009. The Superintending Engineer, P.W.D. B/R, Bhiwani. ....... Petitioner. Versus. Shri Prem Kumar, and another. ....... Respondents. CORAM:HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present:- Mr. D.S. Nalwa, Additional Advocate General, Haryana, for the petitioner. Mr. S.K. Verma, Advocate, for the respondent No. 1. AUGUSTINE GEORGE MASIH, J. (ORAL). In the present writ petition, the challenge is to the award dated 16.04.2008 (Annexure-P-6), passed by the Industrial Tribunal-cum-Labour Court, Rohtak, vide which the workman has been held to be entitled to reinstatement on his previous post with continuity of service and 50% back wages from the date of demand notice i.e. 20.09.2002. Counsel for the petitioner contends that the retrenchment compensation was offered to the workman which the workman did not come forward to accept and thereafter a demand draft dated 16.01.2002 was made and sent to him through registered post. He contends that the offer for retrenchment compensation was made to the workman on 27.04.2001 when notice for retrenchment was issued. He on this basis contends that the services of the workman were terminated as per provisions of Industrial C.W.P. No. 18714 of 2008. Disputes Act and findings as recorded by the Labour Court, are not sustainable. In any case, he submits that even if the findings of the Labour Court are taken to be correct, the workman could not be reinstated in service in view of the fact that the appointment of the workman was not in consonance with statutory rules governing the service and would be violative of the scheme under Sections 14 and 16 of the Constitution of India. He relies upon the judgments 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, in support of his submission. On the other hand counsel for the respondent submits that firstly notice dated 27.04.2001 which is stated to have been given to the workman, has not been proved before the Labour Court. He further contends that even if that be so there was nothing which would have stopped the management who has prepared the demand draft within a short span of time and thereafter sent it to the workman. He contends that it is an afterthought with an intention to thwart the claim of the workman that this demand draft was prepared on 16.01.2002 and sent merely to cover up the lacuna in the order of termination. He on this basis contends that the findings as recorded by the Labour Court are fully justified. He further contends that the workman would be entitled to reinstatement in service due to violation of provisions of Section 25-F of the Industrial Disputes Act. Further submission of counsel for the respondent is that the workman was -2- C.W.P. No. 18714 of 2008. appointed on a sanctioned post and therefore, was entitled to reinstatement in service. I have heard counsel for the parties and have gone through the records of the case. The submissions of counsel for the petitioner with regard to retrenchment of the workman being in consonance with the Industrial Disputes Act, is not acceptable. The requirement of law is that retrenchment compensation should be paid to the workman at the time of termination of his services or before that. The workman if was to be legally retrenched, retrenchment compensation was to be made on or before 01.05.2001 which admittedly has not been made. The offer which is said to be in the form of notice dated 27.04.2001 also has not been proved before the Labour Court which would justify the stand of the petitioner. Further the draft of Rs. 4,525/- which is stated to be the amount of retrenchment compensation is dated 16.01.2002. This further shows that the amount of compensation which the workman would have been entitled to on his retrenchment was not paid to him at the time of his termination. Rather the draft was prepared after a delay of around six months from the date of his termination. Findings therefore recorded by the Labour Court that the termination of the workman was not in consonance of Section 25-F of the Industrial Disputes Act, cannot be faulted with. The submission as made by counsel for the petitioner that the workman cannot be reinstated in services in the light of the judgment referred to above as the appointment of the workman was not in consonance with the statutory rules governing the services, does have weight. The submission of counsel for the petitioner that the appointment of the workman was on a sanctioned post, cannot be accepted for the reason that -3- C.W.P. No. 18714 of 2008. there is no finding recorded by the Labour Court to this effect. No evidence has also been produced by the workman to substantiate this claim and not a word has been said in the demand notice or claim statement that his appointment was made in accordance with statutory rules governing the service. The position which emerges, therefore, is that the workman was appointed as a daily wager and he continued as such till the date of his termination. That being so, the judgments reliance whereof has been made by counsel for the petitioner referred to above would be applicable in the facts and circumstances of the present case. The award dated 16.04.2008 (Annexure-P-6), passed by the Industrial Tribunal-cum-Labour Court, Rohtak, therefore, cannot be sustained. Counsel for the respondent has relied upon the judgments 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 Rajasthan Lalit Kala Academy Versus Radhey Shyam, 2009 (1) R.S.J. 95, 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, to contend that the workman would be entitled to compensation. The claim of the workman as far as the grant of compensation in lieu of wrongful termination of his service, cannot be disputed with. As per the award passed by the Labour Court, the workman was appointed on 01.12.1993 and his services were terminated on 01.07.2001. In the light of the length of service which the workman has put in with the petitioner-management, the workman is held entitled to compensation of Rs. 75,000/- in the light of the judgments passed by Hon'ble the Supreme Court and Division Bench Judgment of this Court, referred to above. -4- C.W.P. No. 18714 of 2008. The writ petition is allowed. The impugned award dated 16.04.2008 (Annexure-P-6), passed by the Industrial Tribunal-cum-Labour Court, Rohtak, is set aside. Direction is issued to the petitioner to release the amount of compensation as assessed above to the workman within two months from the date of receipt of certified copy of this order. The writ petition stands disposed of in above terms. (AUGUSTINE GEORGE MASIH) JUDGE April 28, 2009. sjks. Whether referred to the Reporter - Yes / No. -5-