C.W.P. No.16322 of 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.16322 of 2006 Decided on: 05.11.2008 The Executive Engineer, PWD, Public Health Division, Bahadurgar. ....Petitioner versus Satpal and another ....Respondents CORAM:-HON'BLE MR. JUSTICE HEMANT GUPTA. HON'BLE MR. JUSTICE NAWAB SINGH. Present: Mr. Sunil Nehra, AAG, Haryana for the petitioner. Mr. Neeraj Kumar, Advocate for respondent No.1. Hemant Gupta, J. The challenge in the present writ petition is to the Award passed by the Labour Court on 09.03.2006 (Annexure P-3), whereby respondent No.1-workman was ordered to be reinstated with continuity of service and 50% back wages from the date of demand notice. As per the workman, he was engaged as Beldar since 01.08.1996 on daily wage basis. On 1.4.1999, the services of the workman were terminated instead of regularizing the same, for which he raised an Industrial Dispute, which was referred to Labour Court for adjudication. The said stand of the workman was controverted by the management before the Labour Court pointing out that in fact, the workman was engaged since 1.10.1996 on daily wage basis. The workman has C.W.P. No.16322 of 2006 -2- withdrawn his civil suit claiming regularization, even though he was not given assurance regarding the regularization of his services. The services of the workman were terminated in view of the Instructions of Engineer-in- Chief, PWD (B&R) Branch. The workman was also called for to receive the amount of compensation, but he has not turned up for receiving the retrenchment compensation. It is also pointed out that the workman has not completed 240 days in one calendar year preceeding the date of termination. The learned Labour Court found that the workman has completed 240 days in a calendar year preceeding the date of termination and that his services have been terminated in violation of Section 25-F of the Industrial Disputes Act (for short the 'Act'). In view of the said findings, the learned Labour Court passed an order of reinstatement of the workman with continuity of service and 50 % backwages. The learned counsel for the petitioner has vehemently argued that vide notice Ex.M-32, compensation amounting to Rs.3929/-, was offered to the workman at the time of retrenchment. But this fact has not been noticed by the learned Labour Court. It is, thus,contended that the provisions of Section 25-F of the Act, were complied with. Therefore, the finding of the Labour Court that the termination of the workman has been effected without payment of compensation, is not sustainable. It is also contended that the Award granting reinstatement is not tenable as the appointments against the public post cannot be made without complying with the procedure of appointment under the Recruitment Rules and by giving wide advertisement inviting applications from all eligible candidates to compete for such post. On the other hand, learned counsel for the respondent-workman contends that the workman was reinstated in the month of August, 2006 C.W.P. No.16322 of 2006 -3- whereas the writ petition has been filed thereafter without disclosing the factum of implementation of the Award and thus, the writ petition is liable to be dismissed. Reliance has been placed upon the judgment reported as G.M. Haryana Roadways versus Jai Bhagwan and another, JT 2008 (3) SC 616. We do not find any merit in the arguments raised by the learned counsel for the workman that the writ petition is not maintainable as the Award stands implemented. Implementation of the Award will not confer any legality to the appointment of the workman, which was de hors the rules. The Award of the learned Labour Court granting reinstatement, is not sustainable for the reason that the appointments against the public post were made by appointing the workman on daily wage basis without following the procedure prescribed under the Recruitment Rules. The illegality cannot be permitted to be perpetuated on the ground that the Award stands implemented. On merits the learned Labour Court has not discussed the payment of compensation amounting to Rs.3929/- vide notice Ex.M-32. Such document produced before the Labour Court, has not been controverted in any meaningful manner even before this Court. Thus, the finding that the the workman is to be reinstated without compensation is based upon incorrect facts. Even otherwise, the appointment against the public post could be made only after inviting applications vide public notice and in accordance with the Recruitment Rules. It could not be pointed out that the appointment of the workman was following such processes. In view of said fact, we are of the opinion that the Award of the C.W.P. No.16322 of 2006 -4- Labour Court, dated 09.03.2006 (Annexure P-3) suffers from patent illegality and irregularity and thus, cannot be sustained. Consequently, we allow the present writ petition and set aside the Award (Annexure P-3) dated 09.03.2006. (Hemant Gupta) Judge (Nawab Singh) Judge November 05, 2008 sanjeev/monika