IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 12611 of 2009 and C.M. No. 6899 of 2010. Date of Decision : May 17, 2010. Deputy Director Animal Husbandry, Gurdaspur, and another ...... Petitioners. Versus. Sucha Singh s/o Ajit Ram, village Kathiali, Gurdaspur, and another ..... Respondents. CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present:- Ms. Monica Chhibbar Sharma, DAG Punjab, for the petitioners. Mr. H.S. Sethi, Advocate, for respondent No. 1. AUGUSTINE GEORGE MASIH, J. (ORAL). C.W.P. No. 12611 of 2009. Heard counsel for the parties. In the present writ petition, the challenge is to the Award dated 26.09.2008 (Annexure-P-1), passed by the Labour Court, Gurdaspur, vide which the reference has been answered in favour of the respondent No. 1/Workman, holding him entitled to reinstatement in service with continuity thereof and 50% back wages from the date of demand notice, i.e., 05.02.2001 till actual date of reinstatement. Counsel for the petitioner/Management contends that the claim of the respondent No.1/Workman had been wrongly granted by the Labour Court. A similar Award was passed in favour of Amir Chand/Workman, who was similarly situated as the petitioner and the said Award was dated 27.05.2004. The said Award was challenged by the petitioner/Management in C.W.P. No. 6006 of 2006 Incharge Government Murgi Seva Kender, Hathi Gate, Amritsar, and others Versus Amir Chand and another. The said writ C.W.P. No. 12611 of 2009 and C.M. No. 6899 of 2010. -2- petition came for hearing before this Court on 01.05.2009, when this Court was pleased to allow the writ petition by setting aside the impugned Award dated 27.05.2004, passed by the Labour Court, Amritsar, and held the Workman entitled to compensation instead of reinstatement as his appointment was not in accordance with the statutory Rules governing the service. She contends that the present case is covered on all the four by the judgment of this Court in C.W.P. No. 6006 of 2006 Incharge Government Murgi Seva Kender (supra) decided on 01.05.2009. Counsel for respondent No. 1/Workman is unable to distinguish the case of respondent/Workman with the judgment relied upon by counsel for the petitioner/Management. He, however, submits that in a similarly placed case of a co-worker, whose services were also terminated alongwith respondent/Workman and was appointed through the same selection as the Workman, the Labour Court had passed Award dated 24.05.2002, where the petitioner/Management challenged the said Award in C.W.P. No. 4793 of 2002 titled as Deputy Director Animal Husbandry, Gurdaspur Versus Vijay Kumar and another, which writ petition was dismissed by a Division Bench of this Court in limine, vide Order dated 06.05.2003. He on this basis contends that the present writ petition deserves to be dismissed on this ground as the contention raised by the petitioner/Management in the present writ petition would be covered by the earlier Division Bench Judgment of this Court. He has further submitted that the Deputy Director Animal Husbandry, Gurdaspur/petitioner No. 1 herein, cannot file the present writ petition as it was the Authority, who had made the selection and appointment of respondent No. 1/Workman and now it cannot turn around and say that the said selection and appointment was not in accordance with law. In any case, he contends that a finding had been recorded by the Labour Court that the Workman had C.W.P. No. 12611 of 2009 and C.M. No. 6899 of 2010. -3- completed more than 240 days in service with petitioner/Management and it is also admitted that the provisions of Section 25-F of the Industrial Disputes Act, 1947, (hereinafter referred to as “the Act”), were not complied with, while terminating the services of respondent No. 1/Workman, thus, the Award passed by the Labour Court, which has been impugned herein, deserves to be upheld and the writ petition be dismissed. Responding to the contention of counsel for respondent No. 1/Workman, counsel for the petitioner/Management submits that a perusal of the Division Bench Judgment of this Court in C.W.P. No. 4793 of 2002, dated 06.05.2003 would show that only one question was raised before the Labour Court, which was that the Animal Husbandry Department of the State Government is not an ‘industry’ within the meaning of clause (j) of Section 2 of the Act and, therefore, the reference made to the Labour Court was without jurisdiction. The law as applicable on the said date with regard to reinstatement of the employee, whose appointment was de hors statutory Rules has undergone change and, therefore, law as of today has to be made applicable to the case in hand. As regards the question of competence of the Deputy Director Animal Husbandry, Gurdaspur, to file the present writ petition and taking a plea that the appointment of respondent No. 1/Workman was not in accordance with the statutory Rules governing the service, she states that any appointment, which is not in consonance with the law, can be challenged in the Court of Law by the Authority of the State, even if it is the Authority, which has made the selection. I have heard counsel for the parties and have gone through the records of the case. C.W.P. No. 12611 of 2009 and C.M. No. 6899 of 2010. -4- Each case is depending on its own facts, the pleadings and the evidence led before the Labour Court. While challenging the Award of the Labour Court in the writ petition, the Court considers the same in the light of the law prevalent as on date. Before the Division Bench in C.W.P. No. 4793 of 2002 titled as Deputy Director Animal Husbandry, Gurdaspur Versus Vijay Kumar and another, the contention raised by the learned counsel for the petitioner/Management was that the Animal Husbandry Department of the State Government is not an ‘industry’ within the meaning of clause (j) of Section 2 of the Act and, therefore, the reference made to the Labour Court, was without jurisdiction. This contention was considered by this Court and rejected holding the Animal Husbandry Department of the State Government to be an ‘industry’ under the definition as provided in the Industrial Disputes Act, 1947. The law has undergone change with regard to the reinstatement of a Workman, where the appointment of a Workman is not in accordance with the statutory Rules governing the service or in violation of Articles 14 and 16 of the Constitution of India, when it relates to a public post. In the light of the latest judgment and law, as has been laid down by Hon’ble the Supreme Court in the cases of Ghaziabad Development Authority and another Versus Ashok Kumar and another, 2008(4) SCC 261, Mahboob Deepak Versus Nagar Panchayat, Gajraula (2008) 1 SCC 575, M.P. Administration Versus Tribhuwan (2007) 9 SCC 748 and State of M.P. and others Versus Lalit Kumar Verma (2007) 1 SCC 575, as also the judgment of Hon'ble the Supreme Court in the case of Secretary, State of Karnataka Versus Uma Devi, 2006(4) S.C.C. 1, the position which emerges is that the Workmen who are not appointed as per the statutory Rules governing the service, although, there is violation of provisions of Section 25-F of the Act, cannot be ordered to be reinstated. In this view of the matter, the Award dated 26.09.2008 (Annexure- C.W.P. No. 12611 of 2009 and C.M. No. 6899 of 2010. -5- P-1) passed by the Labour Court, Gurdaspur, cannot be sustained. Mere dismissal of C.W.P. No. 4793 of 2002 titled as Deputy Director Animal Husbandry, Gurdaspur, Versus Vijay Kumar and another, decided on 06.05.2003, would not create any right in favour of the respondent/Workman and, therefore, the contention of counsel for respondent No. 1/Workman cannot be sustained. The Deputy Director Animal Husbandry, Gurdaspur, is an Authority of the State Government. It is bound by the law and merely because an act, which has been done by the same Authority, although, is not in accordance with the statutory Rules governing the service and in law, is not bound to define such actions of the Authority, which cannot be sustained in law. In the present case, only 19 vacancies were advertised, whereas 79 persons were appointed. The requirement of the Selection Committee to be constituted to make such appointments, was violated. Overwhelming illegalities and irregularities were committed during the selection process and the Government on consideration of the same took a decision to cancel the appointments made by the then Deputy Director Animal Husbandry, Punjab. The Order terminating the services of the appointed persons by cancellation of appointments was thus passed by the Government and the Deputy Director in compliance thereto, passed the order of termination. Some of the Workmen challenged the said order of termination before this Court and this Court in the said writ petition finding the order challenged to be in violation of principles of natural justice, directed the Government to issue action oriented notices to the Workmen and after hearing them, pass an appropriate order in accordance with law. In compliance of the Order passed by this Court, notices were issued to Workmen including the respondent No. 1/Workman and reply to the said notice was submitted by respondent/Workman, leading to passing of the C.W.P. No. 12611 of 2009 and C.M. No. 6899 of 2010. -6- order of termination. It is this order, which was agitated to be not in accordance with law by respondent/Workman, wherein the Labour Court had passed the order of reinstatement of Workman, merely because of non compliance of the provisions of Section 25-F of the Act, while terminating the services of the respondent/Workman. The selection and appointment of 79 persons against only 19 vacancies as advertised by the Department, by no stretch of imagination can be said to be in accordance with the statutory Rules and Instructions governing the service and in accordance with Articles 14 and 16 of the Constitution of India. Merely because the Workman had rendered more than 240 days in service with the petitioner/Management and the Management had failed to comply with the provisions of Section 25-F of the Act, would not in itself entitle him reinstatement in service as has been referred to above. Faced with such a situation, Hon'ble the Supreme Court in Telecom District Manager and others Versus Kesheb Deb, 2008 (4) S.C.T. 33, and a Division Bench of this Court in the case of State of Haryana Versus Ishwar Singh and another, 2008(3) S.C.T. 788, since the services of the workman were terminated without complying with the provisions as contained in the Industrial Disputes Act, the workman would be entitled to compensation for wrongful termination of his services to balance equities between the parties. The workman undisputedly has worked with the Management from 12.08.1997 to 11.11.1999. Keeping in view this factual position, the workman is entitled to compensation of Rs. 20,000/-. In view of the above, the present writ petition is allowed. The impugned Award dated 26.09.2008 (Annexure-P-1), passed by the Labour Court, Gurdaspur, is hereby set aside. The respondent No. 1/Workman is held entitled to compensation of Rs. 20,000/-. C.W.P. No. 12611 of 2009 and C.M. No. 6899 of 2010. -7- C.M. No. 6899 of 2010. The present application has been filed under Section 17-B of the Industrial Disputes Act, 1947, (hereinafter referred to as “the Act”) by respondent No. 1/Workman, claiming therein the benefit of last wages drawn from the date of stay granted by this Court, vide Order dated 20.08.2009, as the same has not been granted to him. I have heard counsel for the parties. Interim stay was granted by this Court, vide Order dated 20.08.2009. The applicant-respondent No. 1/Workman has stated that he had remained un-employed and, therefore, is entitled to the benefit of Section 17-B of the Act. The present application is allowed. The petitioner/Management is directed to release the amount due on the basis of last wages drawn for the period 20.08.2009 till today, i.e., 17.05.2010 alongwith compensation as assessed hereinabove, i.e., Rs. 20,000/-, within a period of two months from the date of receipt of certified copy of this Order. Application stands disposed of. (AUGUSTINE GEORGE MASIH) JUDGE May 17, 2010. sjks.