CWP No.9732 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CASE NO.: CWP No.9732 of 2008 DATE OF DECISION: May 29, 2008 BHARAT SINGH ...PETITIONER VERSUS PRESIDING OFFICER, LABOUR COURT, ...RESPONDENTS GURGAON AND OTHERS CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA. HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. PRESENT: MR. G.K. CHAWLA, ADVOCATE FOR THE PETITIONER. KANWALJIT SINGH AHLUWALIA, J. The present writ petition has been preferred by Bharat Singh son of Dilawar Singh challenging the impugned award dated 22.1.2008 (Annexure P-13), passed by the Labour Court, Gurgaon whereby the petitioner has been denied reinstatement and back wages. The petitioner- workman on 17.1.2000, served a demand notice (Annexure P-1). It was stated in the demand notice that the petitioner had worked from October, 1990 to April, 1994 as an Operator with the Xen. PWD B&R, Nuh under the Provincial Division, from October, 1994 to September, 1995, he served under Secn. Mechanical Division, PWD, B&R, Gurgaon. It was further averred that at both the places the petitioner worked as Operator and thus he has rendered service of more than 240 days in the last 12 preceeding CWP No.9732 of 2008 -2- months. The Haryana Government had referred the dispute to the Labour Court. The case of the petitioner is that his services were terminated on 30.9.95 without compliance of provisions of Section 25-F of the Industrial Disputes Act. Thereafter, the petitioner submitted a claim statmeent (Annexure P-4). In reply to the claim statement, the Management stated that the petitioner was engaged as Beldar on temporary muster roll on daily wages for a specific work during October, 1990. However, he himself had abandoned the work in April, 1994 and had not completed 240 days in any calendar year. The Labour Court held that no doubt the workman might have completed more than 240 days on job with the respondents but he was a daily wager. It is further held that neither the workman was issued any letter of appointment nor of termination. Relying upon the judgemnt of this Court in which reliance was placed on various judgements of Hon'ble Apex Court, the Labour Court as observed as under:- “In case of Municipal Council, Samrala Vs. Raj Kumar, 2006 (2) SCC, 81, it was held that unless an employee is appointed as per rules and regulations his appointment cannot be treated to be consistant with Article 14 and 16 of the Constitution. Appointment given de hors the rules and regulations is liable to be terminated and is covered under Section 2(oo)(bb) of the Act and thus, does not amount to retrenchment. Similarly, in Gangadhar Pilliai Vs/ Siemens Limited 2007(1) SCC 553, Indian Drugs & Pharmaceuticals Ltd. Vs/ Workman 2007(1) SCC 468, Reserve Bank of India Vs/ Gopinath Sharma and CWP No.9732 of 2008 -3- another, 2006(6), SCC, 221 and U.P. Power Corporation Ltd. And another Vs/ Bijli Mzadoor Sangh and others 2007(5) SCC 755, it has been held that reinstatement of a workman in public employment will not be consistent with Article 14 unless a workman had been appointed by following the Rules/Regulations. Lastly in case of Haryana Urban Development Authority and another Vs/ The Presiding Officer, Industrial Tribunal-cum-Labour Court, Gurgaon (CWP No.6482 of 2007 and decided on 05.12.2007, the same view has was taken as mentioned above by the Division Bench of Hon'ble Punjab and Haryana High Court. No law to the contrary has been shown or cited at the bar.” Counsel for the petitioner has relied upon the Single Bench judgement of Delhi High Court (Annexure P-12) in Narender Kumar vs. The Regional Manager, Punjab National bank and others, reported as 2008 (1) Service Cases Today 196, to contend that learned trial Court ought to have counted 240 days by taking into consideration the service rendered by the petitioner with the Management in the 12 preceding months by counting the same backwards. We are of the view that this judgement is not applicable. The petitioner was a daily wager. Therefore, the learned Labour Court has rightly held that case of the petitioner is covered under Section 2(oo)(bb) of the Industrial Disputes Act and therefore, the petitioner is not covered within the definition of workman as envisaged under Section 2(s) of the Industrial Disputes Act, 1947. Accordingly, we find no find no reason to CWP No.9732 of 2008 -4- interfere with the legal proposition propounded by the Labour Court in declining the reference. Hence the present writ petition is dismissed. (KANWALJIT SINGH AHLUWALIA) JUDGE May 29, 2008 (ASHUTOSH MOHUNTA) Gulati JUDGE