C.W.P. No.15652 of 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.15652 of 2006 Decided on : 20-10-2008 M/s Divisional Forest Officer, Jind ....Petitioner VERSUS Presiding Officer, Labour Court & another ....Respondents CORAM:-HON'BLE MR. JUSTICE HEMANT GUPTA. HON'BLE MR. JUSTICE NAWAB SINGH. Present:- Mr. D.S. Nalwa, Addl. A.G., Haryana for the petitioner. Mr. Deepak Sonak, Advocate for respondent No.2. HEMANT GUPTA, J The challenge in the present writ petition is to the Award passed by the Labour Court dated 27.02.2005 (Annexure P-1), whereby an Industrial Dispute raised by the workmen, was answered in favour of the workmen. It is the case of the workmen that the workers, who have completed five years' service, are entitled to get the status of the permanent employee and having competed three years' service thereafter, are entitled to be regularized in service. The Management in its reply, took up a stand that the action has been taken to regularize the workers as per the instructions of the Government. The learned Labour Court in the impugned Award held that in reply (Ex.WW-2), the Management has admitted the fulfilment of eligibility criteria by the workers for regularization. In view of the said fact and on the C.W.P. No.15652 of 2006 -2- basis of the Gradation List (Ex.M-1), it was found that workers at Sr. No.1, 2, 3, 4, 5, 6, 8, 9 & 11 fulfil the condition of three years' service as also 240 days service in each year and thus, entitled to regularization. The question whether an employee, who has been employed on ad hoc basis or daily-wage basis without following the procedure contained in the recruitment Rules and by giving opportunity to all eligible candidates, is entitled to regularization came up for consideration before the Hon'ble Supreme Court in the case of State of Karnatka & others Vs. Uma Devi & others, 2006 (4) SCC, Page I. It was held therein that the instructions issued by the State Government as well as the earlier decisions of the Hon'ble Supreme Court directing the regularization of the services of the employees are not sustainable. Later, the Hon'ble Supreme Court has held in Mahboob Deepak vs. Nagar Panchayat, Gajraula, (2008) 1 SCC 575, that even if the workman has completed 240 days of service, he is not entitled to be reinstated and regularized. In the present case, the learned Labour Court has ordered regularization of the services of the workmen on the basis of the completion of 240 days in last three years. Such directions run counter to the judgment of the Hon'ble Supreme Court in Uma Devi's case and Mahboob Deepak's case (supra). A Division Bench of this Court in CWP No. 13533 of 2006 titled Executive Engineer, Provincial Division, PWD B&R Branch, Jind vs. Om Parkash and another, decided on 26.07.2007 has held that an employee on daily wager is not entitled to be appointed / regularization in public appointment. The Court held to the following effect: - “ We have considered this matter in Civil Writ Petition No. 18587 of 2004 Tek hand vs. The Presiding Officer and others, C.W.P. No.15652 of 2006 -3- decided on 20.07.2007, wherein after referring to the judgments of the Hon'ble Supreme Court in SM Nilajkar and others vs. Telecom District Manager, Karnataka 2003 (4) SCC 27 and Municipal Council, Samrala vs. Raj Kumar, 2006(3) SCC 81, it was observed that termination of services of daily wager will not amount to retrenchment and will be covered by except (bb) to Section 2 (oo) of the Act. It was further observed after referring to judgments of the Hon'ble Supreme Court in Himanshu Kumar Vidyarthis vs. State of Bihar, AIR 1997 SC 3567, Reserve Bank of India vs. Gopinath Sharma, 2006(6) SCC 221 and Gangadhar Pillai vs. Siemens Limited, 2007(1) SCC 533 that an employee employed as a daily wager could not be reinstated/ regularization in public employment which is governed by rules and regulations”. In The Executive Engineer, PWD B& R Provincial Division, Fatehabad vs. Bhajan Singh and another, CWP No. 2270 of 2007 decided on 12.09.2007, this Court held to the following effect:- “ The law has undergone a sea change. The right of a person such as respondent, has been considered by the Hon'ble Supreme Court in Municipal Council, Samrala vs. Raj Kumar (2006) 3 SCC 81, Himanshi Kumar Vidyarthi vs. State of Bihar, AIR 1997 SC 3657, Gangadhar Pillai vs. Siemens Ltd. (2007) 1 SCC 533, State of M.P. and others vs. Lalit Kumar Verma, (2007) 1 SCC 575. Having regard to the given judgments rendered by the Hon'ble Supreme Court of India, we find that the entry in service of the respondent-workman was illegal and, therefore, he has no right to be reinstated. Such a decision would be clearly contrary to the law laid down by the Hon'ble Supreme Court of India, in the judgments referred to above”. In Sector Superintendent-1, Government Livestock Farm, Hisar vs. Om Parkash, CWP No. 2396 of 2006 decided on C.W.P. No.15652 of 2006 -4- 14.11.2007 this Court held to the following effect:- “It is not in dispute that respondent No.1 took entry in service in public employment in total disregard to the statutory provisions and the rules. Since the entry in service of respondent No.1 itself was illegal, therefore, as per the law laid down by the Hon'ble Supreme Court of India in Municipal Council, Samrala vs. Raj Kumar, (2006) 3 SCC 81, Gangadhar Pillai vs. Siemens Limited, (2007) 1 SCC 533, Indian Drugs and Pharmaceuticals Limited vs. Workmen, (2007) 1 SCC 408, Reserve Bank of India vs. Gopinath Sharma and another, (2006) 6 SCC 221 and UP Power Corporation Limited and another vs. Bijli Mazdoor Sangh and others, (2007) 5 SCC 755, he is not entitled to reinstatement. In such circumstances, the case would fall under section 2 (oo) of the Act and the provisions of Section 25-F of the Act would not be attracted”. The said view is the consistent view of this Court in numerous other judgments. In view of the above, we are of the opinion that the award of the Labour Court granting regularization of services of the workmen, is not sustainable as the workmen were appointed de hors the Rules of appointment. Consequently, the impugned award dated 27.02.2005, Annexure P-1, is set aside. Writ petition is allowed. (Hemant Gupta) Judge 20th October 2008. (Nawab Singh) Monika Judge