C.W.P. No.17846 of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.17846 of 2007 Decided on :02-12-2008 Executive Engineer, Provinicial Division PWD B& R, Fatehbad ....Petitioner VERSUS Bhajan Lal & another ....Respondents CORAM:-HON'BLE MR. JUSTICE HEMANT GUPTA. HON'BLE MR. JUSTICE NAWAB SINGH. 1.Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3.Whether the judgment should be reported in the Digest ? -.- Present:- Mr. D.S. Nalwa, A.A.G. Haryana for the petitioner. Mr. Saurav Khurana, Advocate for respondent No.1. HEMANT GUPTA, J The challenge in the present writ petition is to the Award of the Labour Court dated 08.01.2007 (Annexure P-1), whereby respondent No.1 (hereinafter referred to as 'the workman') was ordered to be re-instated with continuity of service and also 50% back wages from the date of demand notice till the date of publication of Award and full wages thereafter till reinstatement on account of violation of Section 25-F of Industrial Disputes Act, 1947 (for short 'the Act'). It is the case of the workman that he was engaged as a Beldar in December, 1997 on daily wages. But on 24.09.2000, his services have been terminated without payment of retrenchment compensation or any notice or notice pay. It is alleged that the Management has retained juniors and C.W.P. No.17846 of 2007 -2- thus, there is violation of Sections 25-G and 25-H of the Act. On behalf of the petitioner-Management, it was pointed out that the petitioner has worked from December, 1997 till June, 2000, but gap of 1 or 2 days was given. Therefore, the workman is not entitled to be reinstated. The learned Labour Court has returned a finding that the workman has completed more than 240 days in one calendar year. It was also found that junior workers have been retained, which is violative of Section 25-G of the Act. Thus, the Labour Court answered the reference in favour of the workman, granting workman to be reinstated with continuity of service and 50% of back wages from the date of demand notice till the date of publication of Award and full wages thereafter till reinstatement. Learned counsel for the petitioner has vehemently argued that the workman was a daily wager and even if, he has completed 240 days in one calendar year, such wokman is not entitled to be reinstated against a public post when the engagement of the workman was not in terms of the Recruitment Rules and after giving an opportunity to all eligible candidates. Reliance is placed on a decision of the Supreme Court in cases reported as Ghaziabad Development Authority & another Vs. Ashok Kumar & another, 2008 (4) SCC 261, Mahboob Deepak vs. Nagar Panchayat, Gajraula, (2008) 1 SCC 575, M.P. Administration Vs. Tribhuwan, (2007) 9 SCC 748, Utrranchal Forest Development Corpn. Vs. M.C. Joshi, (2007) 2 SCC (L&S) 813, State of M.P. And others Vs. Lalit Kumar Verma, (2007) 1 SCC 575, to contend that the post under the State are required to be filled up in terms of the Recruitment Rules and by inviting applications from all eligible candidates. It is contended that the respondent-workman was engaged on daily wages without following the C.W.P. No.17846 of 2007 -3- rules and principles of Articles 14 and 16 of the Constitution, therefore, even if the workman has completed 240 days of service, the said workman is not entitled to be reinstated and also for the grant of back wages. It is also argued that even if juniors have been retained, but retention of such juniors will not confer any right in favour of the workman to be reinstated. Reliance is also placed upon the judgment of the Hon'ble Supreme Court in Jaipur Development Authority vs. Ramsahai and another, (2006) 11 SCC 684. On the other hand, learned counsel for the workman submitted that the workman has been reinstated in terms of the Award of the Labour Court, therefore, this Court should not interfere against the Award at this stage. Having heard learned counsel for the parties, we are of the opinion that the workman was engaged against a public post on daily wages. Such engagement was not in terms of the Recruitment Rules applicable to the post or by giving opportunity to all eligible candidates to apply and to be considered for appointment. Therefore, the workman cannot be ordered to be reinstated. Still further, the retention of juniors will not confer any right on the workman to be reinstated as illegality in continuing to engage a daily wager will only mean perpetuating an illegality. In Jaipur Development Authority's case (supra), the Hon'ble Supreme Court has held that even in case of breach of the provisions of Section 25-G and 25-H of the Act, the workman cannot be ordered to be reinstated. In view of the above, we are of the opinion that the Award granting reinstatment and back wages to the workman is not sustainable. Consequently, the impugned award dated 08.01.2007 (Annexure P-1), is set C.W.P. No.17846 of 2007 -4- aside. Hence, we allow the present writ petition. However, the workman shall be entitled to last drawn wages from the date of Award of the Labour Court till today in an appropriate proceedings before the learned Labour Court on satisfying the conditions of the provisions of Section 17-B of the Act. (Hemant Gupta) Judge 2nd December, 2008. (Nawab Singh) Monika Judge