IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. L.P.A. NO. 399 OF 2009 DATE OF DECISION : OCTOBER 06, 2010. Shri Chet Singh …Appellant Versus The Secretary to Govt. of Punjab, PWD (B/R) Branch, Punjab Civil Secretariat, Chandigarh, and others …Respondents CORAM: HON’BLE MR. JUSTICE M.M. KUMAR HON’BLE MS. JUSTICE RITU BAHRI Present: Mr. R.K. Gautam, Advocate, for the appellant. Mr. Survir Sehgal, Addl. A.G. Punjab, for the respondents. 1. To be referred to the Reporters or not ? 2. Whether the judgment should be reported in the Digest ? M.M. KUMAR, J. 1. The instant appeal filed under Clause X of the Letters Patent is directed against judgment dated 26.02.2009, passed by the learned Single Judge, setting aside the Award dated 05.10.2006, passed by the Industrial Tribunal-cum-Labour Court, Chandigarh. The learned Single Judge has set aside the reinstatement of the workman-appellant and an amount of Rs. 25,000/- has been awarded to him in lieu thereof. However, with regard to payment of wages in terms of Section 17B of the Industrial Disputes Act, 1947 (for L.P.A. No. 399 of 2009 brevity, 'the Act'), the learned Single Judge has passed the following direction :- “Counsel for the respondent No. 1-workman that the provisions of Section 17-B of the Industrial Disputes Act. An affidavit to that effect has also been filed by the respondent No. 1-workman that he was not gainfully employed during the period as per requirement of Section 17-B of the Act. Counsel for the petitioner-management states that the pay drawn as per his claim under Section 17- B of the Act, would be paid to him alongwith compensation as assessed by this Court. Direction is issued to the petitioner- management that the amount payable to the respondent No. 1-workman under Section 17-B of the Industrial Disputes Act be paid to him alongwith compensation amount as assessed above within a period of two months from the date of receipt of copy of this order.” 2. Before the Industrial Tribunal-cum-Labour Court, no plea was raised by the respondent-establishment that the workman- appellant was employed on a public post in contravention of the statutory provisions governing the service. There was no stand taken in the reply filed to the statement of claim that while filling up the post of Mason, some statutory rule was required to be followed or that the provisions of Articles 14 and 16 (1) of the Constitution were violated. Accordingly, no finding has been recorded by the Industrial Tribunal-cum-Labour Court on the aforesaid issue. However, it has 2 L.P.A. No. 399 of 2009 been found as a fact that the workman-appellant did not complete 240 days and there was, thus, no violation of Section 25-F of the Act. 3. The Industrial Tribunal-cum-Labour Court has recorded another categorical finding in paras-14, 15, and 16, that the principle of 'last come first go' has not been followed and accordingly, it has been found that there is violation of Section 25-H of the Act because Kamlesh Kumar, Bhag Singh, and Karnail Singh, who were engaged after the engagement of the workman-appellant were continued by the respondent-establishment. On the basis of the aforesaid finding, the Industrial Tribunal-cum-Labour Court has ordered reinstatement of the workman-appellant on the same terms and conditions at which he was working on 01.08.1996 with continuity of service, but without back wages. 4. We have heard learned counsel for the parties and have perused the record with their able assistance. 5. The question with regard to filling up of a public post in violation of statutory rules or in contravention of Articles 14 and 16 (1) of the Constitution has arisen before Hon'ble the Supreme Court in similar facts and circumstances in the case of Krishan Singh v. Executive Engineer, JT 2010 (2) SC 599. Their lordships of Hon'ble the Supreme Court set aside a judgment of the High Court, which had interfered with the Award of the Labour Court on the ground that there was violation of statutory rules, while filling up the post on daily wages. The aforesaid issue has been answered in para-6 of the Judgment, which reads as under :- 3 L.P.A. No. 399 of 2009 “6. The only question that we have to decide in this case is whether the High Court was right in setting aside the Award dated 18.07.2006 of the Labour Court directing reinstatement of the appellant with 50% back wages and directing instead payment of compensation of Rs. 50,000/- to the appellant. We find that the dispute that was referred to by the State Government under Section 10 of the Act to the Labour Court was : “whether the termination of the services of the appellant was justified and if not, to what relief he was entitled to ?” As per the claim- statement filed by the appellant before the Labour Court, he was appointed by the respondent as a daily wager against a regular post on 01.06.1988 under the Junior Engineer at Meham and the appellant worked there for different periods until the respondent terminated his serves in December, 1993 without any notice and without complying with the provisions of Section 25F of the Act. The respondent in its objections did not take a plea that the engagement of the appellant was either against a post which was not sanctioned or contrary to the statutory rules and admitted in the objections that the services of the appellant were engaged for different periods during 1988-89, 1989-90, 1990-1991 and 1992-1993. The respondent also furnished a statement of the works in which the appellant was engaged during the years 1988-1989 and 1989-1990, which was marked as Exb. MW-1. Taking into consideration Exb. MW-1, the Labour Court held that the appellant has completed 267 days from 01.06.1988 to 30.04.1989 and without any notice or notice pay and without retrenchment compensation. In the relief portion of the Award, the Labour Court 4 L.P.A. No. 399 of 2009 held that as the services of the appellant had been terminated illegally, he was entitled to be re-instated in his previous post with continuity of service and 50% back wages from the date of demand notice, i.e., 31.12.1997.” (emphasis added) 6. Similar view was taken in Harjinder Singh v. Punjab State Warehousing Corporation, JT 2010 (1) SC 598. There another issue was explained by their Lordships which would also apply to the facts of the instant case. Explaining the scope of power vested in the High Courts to set aside the Award of the Labour Court, it was held by Hon'ble the Supreme Court that the High Court could set aside the Award of the Labour Court, if there is any jurisdictional error or error of law apparent on the face of record or that there was violation of rules of natural justice. To substitute the Award of the Labour Court by the learned Single Judge on the basis of his view concerning reinstatement of the workman, would not be within the scope of certiorari jurisdiction. Accordingly, we are of the view that the writ petition deserves to be allowed. 7. For the reasons aforementioned, this appeal succeeds and the impugned judgment passed by the learned Single Judge is hereby set aside and the Award of the Industrial Tribunal-cum-Labour Court, Chandigarh, is restored. Accordingly, the workman-appellant shall be reinstated in service as a daily wager on the same terms and conditions at which he was working on 01.08.1996 with continuity of service, but without back wages. It necessarily follows that he would not be entitled to back wages till 05.10.2006 when award was 5 L.P.A. No. 399 of 2009 announced. But, he has to be paid full back wages from the date of award till the date of his reinstatement. The needful shall now be done by the respondents within a period of three months from the date of receipt of copy of this order. (M.M. KUMAR) JUDGE (RITU BAHRI) JUDGE October 06, 2010 sjks. 6