C.W.P. No. 6112 of 2010 [ 1 ] IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH C.W.P. No. 6112 of 2010 Date of Decision: 13.10.2011 Director of Industrial Training and Vocational Education, Haryana ...................... Petitioner Versus Pawan Kumar and another ........................... Respondents Coram: Hon'ble Ms. Justice Ritu Bahri 1.To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? Present: Mr. D.S.Nalwa, Addl. A.G. Haryana, for the petitioner. Mr. Sandeep K. Sharma, Advocate for respondent No.1. ... RITU BAHRI, J. This writ petition under Article 226/227 of the Constitution of India is for issuance of a writ of certiorari for quashing the impugned award dated 22.10.2009 (Annexure P6) reinstating the workman with continuity of service along with 50% back wages. Shri Pawan Kumar-respondent No.1 (workman) was employed as a Driver by the Director of Industrial Training and Vocational Education, Haryana, on 1.10.1997. C.W.P. No. 6112 of 2010 [ 2 ] His services were terminated by the Management on 31.10.1998. He served a demand notice dated 1.6.2001 (Annexure P1). In the reply to the demand notice dated 10.9.2011 (Annexure P2) the stand taken by the department was that he was appointed as a Driver for 89 days on contract basis. The post of Driver being a Class-III post was to be filled on regular basis through the Subordinate Services Selection Board. On 15.10.1998 the Financial Commissioner advised the Department that it was not possible to make regular selection and the appointments of Shri Pawan Kumar, Surinder Kumar and Balbir Singh be terminated. The Industrial Training and Vocational Education department is not covered under the definition of 'Industry' as defined under Section 2 (iii) of the Industrial Disputes Act (for short the 'Act'). During the conciliation proceedings, no settlement was arrived at between the parties. The matter was referred to the Industrial Tribunal- cum-Labour Court vide reference dated 22.8.2002. The workman filed his claim statement (Annexure P-4) reiterating the stand taken in the demand notice. In the written statement filed by the Management (Annexure P5) it was specifically mentioned that the appointment of the workman was neither through advertisement nor his name was recommended by the Employment Exchange. The detail of the total number of C.W.P. No. 6112 of 2010 [ 3 ] working days with effect from 1.11.1997 to 31.10.1998 has been given as under:- Sr. No. Month Days 1. November, 97 18 2. December, 97 21 3. January, 98 19 4. February, 98 18 5. March, 98 19 6. April, 98 16 7. May, 98 18 8. June, 98 21 9. July, 98 23 10. August, 98 18 11. September 20 12. October 17 ------------ Total 228 -------------- Since the workman has not completed 240 days there was no need to comply with the provisions of Section 25-F of the Act. There are 6 posts of Drivers in the Directorate where the workman was engaged on D.C rates. All these 6 posts have been filled. One of the Drivers has gone on deputation to the Excise & Taxation Department with effect from 24.9.2001. There is no vacant post with the Department where the petitioner can be engaged. Shri Surinder Kumar, driver, who is senior to the present C.W.P. No. 6112 of 2010 [ 4 ] workman-Pawan Kumar, would have a better right of consideration to be engaged as Driver on D.C rates. The Labour Court has passed the award on 22.10.2009 (Annexure P6) reinstating the workman with continuity of service and 50% back wages. Mr. D.S.Nalwa, Additional Advocate General, Haryana, has argued that as per the reply to the claim statement the workman had not put in 240 days in the preceding 12 months from the date of his termination i.e. 31.10.1998. He had put in 228 days in all. He was appointed on contract basis for 89 days and continued after giving break in service. The workman was not appointed in pursuance to any advertisement and his name was not recommended by the Employment Exchange. There were only 6 posts of Drivers in the Directorate and the workman being appointed on daily wages would have a right to could only be considered after his senior Shri Surinder Kumar had been adjusted. The post of Driver is a Class-III post and is to be filled up on regular basis through the Subordinate Services Selection Board. On the advise given by the Financial Commissioner on 15.10.1998 services of Pawan Kumar, Surinder Kumar and Balbir Singh were terminated. Since the post was to be filled by regular appointment the Labour Court award reinstating the workman with continuity of service with 50% back wages is liable to be set aside. He C.W.P. No. 6112 of 2010 [ 5 ] has placed reliance on the judgment of the Supreme Court in Municipal Council, Sujanpur v. Surinder Kumar 2006 Supreme Court Cases (L&S) 967. On the proposition that if an appointment has been made de hors the rule under Article 14 and 16 of the Constitution, in that situation monetary compensation would be an appropriate relief where the services have been terminated without complying with Section 25-F of the Act. While exercising the discretionary power under Section 11-A of the Act if an appointment has been made against a regular post and there is non compliance of Section 25-F of the Act, the reinstatement with full back wages would not be automatically granted. He has further relied on the judgment of the Supreme Court in Madhya Pradesh Administration v. Tribhuban (2008) 1 SCC (L&S) 264 where the Supreme Court has set aside the High Court judgment directing reinstatement with full back wages. Co-ordinate Bench of this Court in Range Forest Officer, Rewari and another v. Ram Chander and another 2009 (5) SLR 649 has held that if in case of public appointments the initial recruitment is in violation of the recruitment rules the relief of reinstatement shall not be possible. Mr. Sandeep K. Sharma, learned counsel for respondent No.1, has vehemently argued that the award of the Labour Court does not require any interference by the C.W.P. No. 6112 of 2010 [ 6 ] High Court as the Labour Court while exercising power under Section 11-A of the Act has rightly come to the conclusion that the workman had put in 240 days in the preceding 12 months before 31.10.1998. As per the detail of number of working days given by the Department, the workman has put in 228 days. However, as per the wage bills and log book it was proved that the workman had put in 240 days. As per the Attendance Register the workman had worked for 228 days. For the month of June'89 he is shown to have worked for 21 days and for July 1998 for 23 days. On the other hand, as per Ex.M19 the workman was paid wages for 30 days from 1.6.1998 to 30.6.1998 and 31 days for the period from 1.7.1998 to 31.7.1998. There is a discrepancy in the written statement filed by the Department which shows that the workman had put in 228 days. Once the workman had worked for 240 days his services were terminated in violation of Section 25-F of the Act. He has referred to the judgment of the Supreme Court in Ramesh Kumar v. State of Haryana 2010 (1) Law Herald (SC) 592 and Krishan Singh v. Executive Engineer, Haryana State Agricultural Marketing Board, Rohtak 2010 (2) Law Herald (SC) 1057 whereby the Supreme Court has upheld the awards passed by the Labour Court and has set aside the judgments of the High Court interfering in the relief given by the Labour Court while exercising jurisdiction under Section 11-A of the Act. The C.W.P. No. 6112 of 2010 [ 7 ] Industrial Disputes Act is a social welfare statute and the interpretation of the provisions are to achieve the statutory goals and not to frustrate it. Once the Labour Court is satisfied that the order of discharge or dismissal was not justified and directs reinstatement of the workman the High Court in exercise of its power under Article 226/227 of the Constitution will not interfere in the same,. After hearing learned counsel for the parties it is not in dispute that the workman has put in 240 days of service with the Department. The evidence i.e. wage bills and log book led before the Labour Court by the Department goes to prove that he had worked for 240 days preceding the date of his termination. The workman was appointed as Driver on contract basis for 89 days and his appointment was extended on daily wage basis. No compensation has been given to him before terminating his services as contemplated under Section 25-F of the Act. The workman was appointed as Driver by the Director of Industrial Training and Vocational Education, Haryana, on 1.10.1997 and his services were terminated on 31.10.1998. He has put in 240 days in the 12 months preceding the date of his termination. As per the appointment letter, the workman was appointed for 89 days on contract basis. He has served the department for one year with effect from 1.10.1997 till 31.10.1998. The pleaded C.W.P. No. 6112 of 2010 [ 8 ] case of the Department before the Labour Court was that there were 6 posts of Drivers sanctioned in the Directorate and they were all filled. One Driver had gone on deputation to Excise & Taxation Department with effect from 24.9.2001. There was no post on which the present workman could be engaged. Shri Surinder Kumar, Driver, who was senior to the workman and is continuing would have a better right for consideration to any post prior to the petitioner. It is not disputed by the Management that the services of Shri Surinder Kumar who was similarly situated like the present respondent-workman had been terminated and he was reinstated in compliance of the Labour Court award in Reference No. 1399 of 1999. The judgments relied on by the counsel for the petitioner i.e. Municipal Council, Sujanpur v. Surinder Kumar 2006 Supreme Court Cases (L&S) 967, Madhya Pradesh Administration v. Tribhuban (2008) 1 Supreme Court Cases (L&S) 264 and Range Forest Officer, Rewari and another v. Ram Chander and another 2009 (5) SLR 649 are not applicable to the facts of the present case. In the present case the respondent-workman was appointed as Driver on D.C. Rates as Daily Wager even though his appointment was for 89 days on contract basis. The pleaded case before the Labour Court was that in the Directorate of Industrial Training and Vocational Education there were six regular sanctioned posts of Drivers. All the posts had been C.W.P. No. 6112 of 2010 [ 9 ] filled and one person had gone on deputation on 24.9.2001 to the Excise & Taxation Department. While exercising the discretionary power under Section 11-A of the Act the Labour Court was required to give a finding that if the department did not have any vacant sanctioned post of the Driver the benefit of reinstatement with back wages would not be an appropriate relief. In Municipal Council, Sujanpur's case (supra) the Supreme Court has examined the discretionary powers available with the Labour Court which require that the Labour Court considers the facts of each case before passing the order of reinstatement with full back wages. The relief of reinstatement is not to be granted automatically. In the facts of the present case the specific case of the Management before the Labour Court was that apart from six sanctioned posts which were duly filled, there was no post available to reinstate the workman. Merely because the workman had put in 240 days a direction cannot be issued to the Management, which is presently Government department, to reinstate with full back wages. In the case of Shri Surinder Kumar, who was similarly situated as the respondent-workman, the department has reinstated him with full back wages in compliance of Labour Court award in Reference No. 1399 of 1999. Similar benefit is being denied to the workman by taking the plea that there is no vacant post available with the department. C.W.P. No. 6112 of 2010 [ 10 ] Counsel for the respondent-workman has referred to the judgments in Ramesh Kumar v. State of Haryana 1010 (1) Law Herald (SC) 592 and Krishan Singh v. Executive Engineer, Haryana State Agricultural Marketing Board, Rohtak 2010 (2) Law Herald (SC) 1057. In these cases, the Supreme Court has upheld the Labour Court awards of reinstating the workman with 50% back wages on the ground that the Management had not taken any plea before the Labour Court that the appointment of the workman was on a sanctioned post without following the selection process as contemplated under Articles 14 and 16 of the Constitution of India. In the present case, the department has chosen to implement the Labour Court award in Reference No. 1399 of 1999 qua Shri Surinder Kumar with full back wages. The Labour Court while exercising the power under Section 11-A of the Act had granted similar relief to the workman with reinstatement and 50% of back wages. This calls for no interference by this Court. Dismissed. 13.10.2011 ( RITU BAHRI ) Rupi JUDGE