IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.2509 of 2007 Date of decision : 4th September, 2008 Ramphal … Petitioner Versus Presiding Officer, Rohtak and others … Respondents CORAM: HON’BLE MR. JUSTICE HEMANT GUPTA HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present : Mr. Rakesh Nehra, Advocate for the petitioner. Mr. S.K. Hooda, Senior DAG Haryana for the respondents. KANWALJIT SINGH AHLUWALIA, J. Present writ petition has been preferred by Ramphal-petitioner (hereinafter called the ‘workman’), who has sought quashing of impugned award dated 12.07.2006 (Annexure P-4) passed by the Labour Court, Rohtak. Petitioner-workman had served a demand notice (Annexure P-1), in which he stated that he was appointed as Baildar in May 1980 and his services were terminated in May 1995. Thereafter, State of Haryana had referred the dispute to the Labour Court. Petitioner-workman had filed claim statement (Annexure P-2), in which he admitted that he was appointed as Baildar on daily wage basis and that his services were terminated in May 1995 and claimed that thereby, management has Civil Writ Petition No.2509 of 2007 committed violation of Section 25-F of the Industrial Disputes Act, 1947. Reply to the claim statement (Annexure P-3) was preferred by the management through respondent No.2, in which it was specifically stated that the claim of the petitioner-workman is time barred. It was further stated that no appointment letter or termination order is issued to the workman employed on daily wage basis. Learned Labour Court has noticed the fact that the demand notice, in the present case, was issued on 15th December, 1999 after a gap of 4 ½ years. Labour Court further held that there is not only delay of four years but workman has also failed to complete 240 days. Following finding of fact has been recorded by the Labour Court: “10. There is merit in the contention of the learned ADA. In this case the notice of the workman was allegally terminated by the mgt., in the year May 1995 he served the mgt., with the demand notice on 15.12.1999 after about 4 years. This delay of 4 years has not been explained by the workman with cogent reasons. It is alleged by the workman that his service was terminated by the mgt., In case the service of the workman was terminated by the mgt., then he was supposed to serve the mgt., immediately after termination of service but this has not been done and the workman has served the mgt., with the demand notice after about 4 years and without explaining this inordinate delay with cogent reasons there is nothing on the file to show that the workman has completed 240 days in any calendar year. Perusal of the documents which has been placed on file by the mgt., clearly shows that never completed 240 days in one calendar year. He left the service record of mgt., at his own. No doubt the workman has got produced the service record of some officials but they have continuously worked with the mgt., and has completed more than 240 days in one calendar year and as per policy of the state Govt. their services have been regularized and the workman cannot take the benefit 2 Civil Writ Petition No.2509 of 2007 regarding the production of record of these officials because he abandoned the service of the mgt., at his own and did not turn up after 5/1195. Taking into consideration my aforesaid discussion the workman has utterly failed to prove his right. Therefore, I decided this issue against the workman and in favour of the mgt.” (as per reproduction) We are conscious that petitioner-workman was employed on daily wage basis. Admittedly, workman was verbally appointed on daily wage basis. His appointment into public employment was not in pursuance of any advertisement issued, affording opportunity to other persons, nor his services were requisitioned through employment exchange. No equal opportunity was afforded to similarly situated persons. In the present case, workman was not appointed as per rules and regulations but was a contractual employee on daily wage basis and termination of his services did not amount to retrenchment. The workman could not be reinstated in view of judgment of the Hon’ble Supreme Court in State of Karnataka and others v. Umadevi and others (2006) 4 SCC 1. We find that the view taken by the Hon’ble Supreme Court in Municipal Council, Samrala v. Raj Kumar (2006) 3 SCC 81 is that unless an employee is appointed as per rules and regulations, his/her appointment cannot be treated to be consistent with Articles 14 and 16 of the Constitution. Appointment given de hors the rules and regulations is liable to termination and is covered under Section 2(oo) (bb) of the Act and thus, does not amount to retrenchment. Similarly, in Gangadhar Pillai v. Siemens Limited (2007) 1 SCC 533, Indian Drugs & Pharmaceuticals Ltd. v. Workmen (2007) 1 SCC 408, Reserve Bank of India v. Gopinath Sharma and another (2006) 6 SCC 221 and UP Power Corporation Ltd. 3 Civil Writ Petition No.2509 of 2007 and another v. Bijli Mazdoor 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 rules and regulations. It has been held by the Hon'ble Supreme Court in Nedungadi Bank Ltd. v. K.P. Madhavankutty and others, 2000 (2) Supreme Court Cases 455, as under: “6. Law does not prescribe any time-limit for the appropriate Government to exercise its powers under Section 10 of the Act. It is not that this power can be exercised at any point of time and to revive matters which had since been settled. Power is to be exercised reasonably and in a rational manner. There appears to us to be no rational basis on which the Central Government has exercised powers in this case after a lapse of about seven years of the order dismissing the respondent from service. At the time reference was made no industrial dispute existed or could be even said to have been apprehended. A dispute which is stale could not be the subject-matter of reference under Section 10 of the Act. As to when a dispute can be said to be stale would depend on the facts and circumstances of each case. When the matter has become final, it appears to us to be rather incongruous that the reference be made under Section 10 of the Act in the circumstances like the present one.” In the present case also, we find that the Labour Court was justified in holding that delay of 4 ½ years on the part of the workman to approach the Government and issue demand notice disentitles him from any relief as the industrial dispute has become stale. This view has further been reiterated in Haryana State Cooperative Land Development Bank v. Neelam, AIR 2005 Supreme Court 1843, wherein it was observed by the Hon'ble Supreme Court as under: 4 Civil Writ Petition No.2509 of 2007 “A person in certain situation may even be held to be bound by the doctrine of Acceptance Sub Silentio.” In that case also, respondent therein had not invoked the jurisdiction of the Court within a reasonable time and hence was thus ousted on the ground of delay also. Accordingly, taking into consideration the fact that petitioner- workman was a daily wager and for a period of 4 ½ years had not raised the dispute, he is not entitled to any relief as prayed in the present writ petition. Therefore, we are constrained to dismiss the present writ petition. [HEMANT GUPTA] JUDGE [KANWALJIT SINGH AHLUWALIA] JUDGE September 04, 2008. rps 5