IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.M. No. 24266 of 2008 and CWP No. 13992 of 1992 (O&M) Date of decision: 11.02.2009 Gurdev Singh c/o 3417, Sector 40-D, Chandigarh .....PETITIONERS VERSUS Presiding Officer, Labour Court, U.T. Chandigarh and another ..... RESPONDENTS CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. O.P.Batra, Advocate, for the petitioner. Mr. Vijay Kumar Chaudhary, AAG, Punjab. *** AUGUSTINE GEORGE MASIH, J. (ORAL) C.M. No. 24266 of 2008 C.M. is allowed. Reply by way of affidavit is taken on record. CWP No. 13992 of 1992 In the present writ petition, the challenge is to the award dated 20.05.1992 passed by the Labour Court, U.T.Chandigarh, (Annexure P-1), wherein the reference has been answered against the workman on the ground that the demand notice was not served upon the Management. Counsel for the petitioner contends that under Rule 3 of the C.M. No. 24266 of 2008 and -2- CWP No. 13992 of 1992 (O&M) Industrial Dispute (Centre) Rule, 1957, the application for reference of an Industrial Dispute shall be delivered personally or by registered post to the Assistant Labour Commissioner and hence there is no requirement of sending notice to the department concerned. In any case, demand notice was personally served upon the respondent-department during the conciliation proceedings and, therefore, the requirement of law having been complied with, the award passed by the Labour Court cannot be sustained. He further contends that there is a finding given by the Labour Court that the petitioner-workman had worked for more than 240 days with the respondents and no notice was served upon him nor any charge-sheet or enquiry was held before terminating his services. He further states that no retrenchment compensation has been paid, which is mandated under the Industrial Disputes Act. Counsel for the respondents is unable to rebut the contentions raised by the counsel for the petitioner as regards the subsequent service of the demand notice upon the respondents as well as the finding, which has been recorded by the Labour Court about the workman completing 240 days in the 12 preceding months from the date of his termination. He further contends that the workman was appointed on day to day basis and was a casual worker. The tenure of the appointment was to be decided in accordance with the load of work and availability of work and his duty was to count lottery tickets and also to verify their numbers. He contends that on the abolition of the scheme, the services of the workman were terminated. I have heard the counsel for the parties and have gone through the records of the case as well as the impugned award. C.M. No. 24266 of 2008 and -3- CWP No. 13992 of 1992 (O&M) The factual position, as reiterated by the counsel for the petitioner, would show that the notice was, as a matter of fact, subsequently served upon the respondents and, therefore, the compliance as such of the Rule was very much there. The award, therefore, cannot be sustained. However, the findings with regard to his completing 240 days in service prior to his termination in the 12 preceding months entitles him to the benefit of Section 25-F of the Industrial Disputes Act. The appointment to the post, on which the workman is likely to be reinstated in view of his completing 240 days, is a public post and, therefore, the same cannot be ordered in the light of the fact that the workman was not appointed in accordance with the statutory rules governing the services. It has clearly come on record that his appointment is on day to day basis and, therefore, the workman does not have any right to hold the post. Provisions, as contained in the Constitution and Articles 14 and 16 thereof having not been complied with, the workman cannot, therefore, despite of non- compliance of Section 25-F of the Industrial Disputes Act, be reinstated. Reliance has been placed by the State counsel on the decisions of the Hon'ble Supreme Court in the cases reported as Ghazibad Development Authority and another vs. Ashok Kumar and another, 2008 (4) SCC 261, Mahboob Deepak vs. Nagar Panchayat, Gajraula, (2008) 1 SCC 575, M.P. Administration vs. Tribhuwan, (2007) 9 SCC 748 and State of M.P. and others vs. Lalit Kumar Verma, (2007) 1 SCC 575 to contend that the posts under the State are required to be filled up in terms of the statutory rules governing the service by inviting applications from all eligible candidates and thereafter, on consideration of the same, the appointment can be said to be a valid appointment. It has C.M. No. 24266 of 2008 and -4- CWP No. 13992 of 1992 (O&M) been contended that the petitioner-workman was engaged on daily wages without following the 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 was not entitled to be reinstated and also for the grant of back wages. In view of the above, I am of the opinion that the workman was engaged against a public post on daily wage basis. Such engagement was not in terms of the statutory Recruitment Rules applicable to the post which would have required giving opportunity to all eligible candidates to apply and to be considered for appointment. Therefore, the workman cannot be ordered to be reinstated. 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, the impugned award dated 20.05.1992 passed by the Labour Court, U.T. Chandigarh (Annexure P-1), is set aside and the writ petition is allowed. As the workman has worked for a period of about two years, I deem it appropriate to grant compensation amounting to Rs. 20,000/- to settle equities between the parties in lieu of reinstatement in the light of the judgment passed by the Hon'ble Supreme Court in Telecom District Manager and others vs. Keshab Deb, 2008 (4) SCT 33 and the Division Bench judgment of this Court in the case of State of Haryana vs. Ishwar Singh and another, 2008 (3) SCT 788. ( AUGUSTINE GEORGE MASIH ) JUDGE February 11, 2009 pj