IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.6411 of 2009 Date of Decision:- 09.02.2010 The Divisional Forest Officer, (Territorial), Bhiwani ....Petitioner(s) vs. Sant Kumar and another ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.D.S.Nalwa, Addl. Advocate General, Haryana, for the petitioner. Mr.Vikram Sheoran, Advocate, for respondent No.1. *** AUGUSTINE GEORGE MASIH, J. (Oral) Prayer in the present writ petition is for setting aside the Award dated 25.2.2008 (Annexure P-1) passed by the Industrial Tribunal- cum-Labour Court, Rohtak. When the case came up for hearing on 29.4.2009, the claim in the present writ petition was restricted only to the question of reinstatement of the workman and it was contended that the appointment being in violation of the provisions of the statutory Rules governing the service, the workman would be entitled to only compensation, if any. Counsel for the petitioner submits that the findings as recorded by the Labour Court even if are taken to be correct, the appointment of the workman being in total violation of the statutory Rules governing the service and in violation of the Articles 14 and 16 of the Constitution of India, the reinstatement as granted to the respondent-workman vide C.W.P.No.6411 of 2009 -2- impugned award cannot be sustained. However, in the light of the fact that the services of the workman had not been terminated as per the provisions of Section 25 (G) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act), therefore, the termination was not in consonance with the provisions of the Act. The workman at the most would be entitled to compensation in lieu of his reinstatement. On the other hand, counsel for the respondent-workman has taken an objection that the Award has been challenged by the petitioner- Management in this Court after a delay of more than one year. He contends that the Award is dated 25.2.2008 whereas the present writ petition has been filed on 23.4.2009. The delay is unreasonable and, therefore, on this ground alone, the writ petition deserves to be dismissed. He further contends that a finding has been recorded by the Labour Court that juniors to the petitioner have been retained and, therefore, the workman deserves to be reinstated in service and the Award passed by the Labour Court is fully justified. I have heard counsel for the parties and have gone through the records of the case. The delay is merely of one year and two months from the date of passing of the Award. It is a well-known phenomenon that the government officials and officers work at their own whims and fancies and in the present case, the delay is not unreasonable and unjustified. However, in any case, the initial appointment of the workman was not in consonance with the statutory rules governing the service and, therefore, it was in violation of the statutory rules as well as the provisions contained under Articles 14 and 16 of the Constitution of India. It has been held in various judgments passed by the Hon'ble Supreme Court, as also by this C.W.P.No.6411 of 2009 -3- Court, that if the initial appointment of the workman is not in accordance with the statutory rules governing the service, the workman cannot be reinstated in service even if there is violation of the provisions of the Industrial Disputes Act, 1947. The findings which have been recorded by the Labour Court are fully justified with regard to the fact that the services of the workman were terminated in violation of the provisions of Section 25 (G) of the Act as juniors to the respondent-workman were retained in service while his services were terminated. That being so, the termination of the services of the workman was in violation of the provisions of the Act. The provisions of the Act having not been followed by the petitioner-management while terminating the services of the workman, the workman although would not be entitled to reinstatement in service in view of the fact that his services were not engaged in accordance with the statutory Rules and Articles 14 and 16 of the Constitution of India which is not disputed by the workman yet he would be entitled to compensation for the period he had worked with the petitioner-Management in lieu of reinstatement. The workman was appointed in February, 1991 and he continued till September, 1997. He had completed about 6 years of service with the petitioner-Management. Keeping in view the totality of the facts and circumstances of the case, the compensation which is to be granted to the respondent- workman in lieu of reinstatement in service is assessed at Rs.60,000/-. Accordingly, the present petition is allowed; the Award dated 25.2.2008 (Annexure P-1) passed by the Industrial Tribunal-cum-Labour Court, Rohtak, is set aside to the extent it grants reinstatement to the C.W.P.No.6411 of 2009 -4- workman with continuity of service and 50% back wages. However, the respondent-workman would be entitled to compensation as assessed herein- above in lieu of his reinstatement. The petitioner-Management is directed to release the amount of compensation as assessed above to workman- respondent No.1 within a period of 2 months from the date of receipt of certified copy of this order. February 09, 2010 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE