IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.16964 of 2007 Date of decision : 26th August, 2008 Divisional Forest Officer, Social Forestry Project, Hisar. … Petitioner Versus Satnam and another … Respondents CORAM: HON’BLE MR. JUSTICE HEMANT GUPTA HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present : Mr. D.S. Nalwa, Additional Advocate General, Haryana for the petitioner. KANWALJIT SINGH AHLUWALIA, J. Present civil writ petition has been filed invoking article 226 of the Constitution of India, praying that award dated 10.01.2007 (Annexure P-5) passed by the Presiding Officer, Industrial Tribunal-cum-Labour Court, Hisar be quashed. The above noted writ petition was listed on November 5, 2007, when notice of motion was issued to the respondent-workman, Satnam Singh (hereinafter called the ‘workman’). On August 11, 2008, a Co-ordinate Bench had ordered to proceed against the workman exparte. The workman had issued a demand notice raising industrial dispute to the effect that his services were illegally terminated on 1st January, 1999. The Government of Haryana made a reference to the Labour Court and had raised following question: CWP 16964 of 2007 “Whether termination of services of Sh.Satnam Singh is legal or not? if not, what relief he is entitled to?” Workman submitted his claim statement (Annexure P-1) on 25th March, 2003. It was urged therein that he was appointed verbally as Baildar on daily wage basis by the petitioner-management (hereinafter called the ‘management’) in June 1992 and he continued to render his services from June 1992 to 31st December 1998 and thus, he had completed more than 240 days in 12 preceding calendar months. Therefore, it was stated that since he had worked at Fatehabad Block of Fatehabad Range in the office of DFO, Social Forestry Project Division, Hisar, he has become a regular workman. He had further stated that Forest Guards, namely Kamal, Banwari, Ved Parkash, Amar Lal, Bhushan and Prem used to take work from him. It was further pleaded that lastly he was paid Rs.1850/- per month, whereas, management ought to have given him scale of Rs.2550-3200 by following the principle of ‘equal work equal pay’. It was further submitted that the juniors to the workman were retained in service and principle of ‘first come last go’ was not adhered to. This, according to the workman, amounted to unfair labour practice and thus, management committed violation of Section 25 (F, G and H) of Industrial Disputes Act, 1947 (hereinafter called the ‘Act’). The management filed written statement (Annexure P-2) to the claim statement, in which a plea was raised that the claim statement has been filed after 51 months and therefore, dispute has become stale. It was further stated that workman had not completed 240 days in the 12 calendar months preceding his alleged termination. On merits, it was submitted that Department of Forest is not an industry, and therefore, industrial dispute cannot be raised. Furthermore, written statement contained averment that 2 CWP 16964 of 2007 workman was engaged on daily wage basis by local forest guard for seasonal plantation work. Thereafter, issues were formulated by the Labour Court. Parties led their evidence. The Labour Court held that workman had confined his prayer to the only point that there has been violation of Section 25-F of the Act and therefore, termination of his services stood vitiated. Relying upon the management witness MW-1 Dalip Singh, Labour Court further held that workman has rendered 240 days’ service in 12 preceding calendar months and therefore, his termination was held to be bad. He was ordered to be reinstated with continuity of service and other consequential benefits including 50 per cent back wages from the date of issuance of demand notice, i.e. 18.12.2000. We have heard Mr. D.S. Nalwa, Additional Advocate General Haryana. As per his own claim, 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. He 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 3 CWP 16964 of 2007 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. 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. In view of the above, we allow present civil writ petition and quash the impugned award (Annexure P-5). However, workman shall be entitled to the benefits which have to accrue to him by following the mandate of Section 17 (B) of the Act. With these observations, present writ petition is accepted. [HEMANT GUPTA] JUDGE [KANWALJIT SINGH AHLUWALIA] JUDGE August 26, 2008. rps 4