C.W.P. No.19134 of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.19134 of 2007 Decided on :10-11-2008 Divisional Forest Officer ....Petitioner VERSUS Mangat Ram & 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. Madan Pal, Advocate for respondent No.1. HEMANT GUPTA, J The challenge in the present writ petition is to the Award of the Labour Court dated 24.10.2005 (Annexure P-5), whereby the respondent No.1 (hereinafter referred to as workman) was ordered to be reinstated in service with continuity of service and 50% of back wages from the date of issuance of demand notice. It is the case of the workman in his statement of claim that he was appointed as a Beldar, a daily-paid labourer on 1.1.1988 and continued to work till 31.08.2000 and that the workman has worked for more than 240 days continuously in every calendar year. However, the services of the workman have been terminated without any compensation or notice and hence such acation of the Managment is illegal. On such reference being raised, however, the learned Labour Court returned a finding that the workman has worked for 306 days in the year 1995 and that such retrenchment was without payment of entitled compensation and therefore, C.W.P. No.19134 of 2007 -2- ordered to reinstate the workman with payment of back wages . Learned counsel for the petitioner has argued that in the absence of any finding regarding the completion of 240 days in a calendar year preceding the date of termination, which as per the workman is 21.08.2000, the finding recorded by the learned Labour Court that there is violation of Section 25-F of the Industiral Disputes Act, 1947(hereinafter referred to as 'the Act'), is not sustainable. It is further contended that though there is delay in challenging the Award, but since the effect of the Award, amounts to violation of the Articles 14 & 16 of the Constitution of India, therefore, the delay in challenging the Award can not perpetuate illegality i.e. reinstatement of the workman with continuity of service. Learned counsel for the respondent has relied upon the statement of Anil Kumar, Range Forest Officer, who appeared as MW-1. In the cross- examination, the said witness has denied the suggestion regarding not bringing of the summoned record intentionally because of the fact that the working of the workman as it would have been evident that the workman has completed 240 days from that record. Reliance has been placed upon the judgment of this Court in Executive Engineer v. Presiding Officer, Labour Court & Another, 2007(1) SCT, 749. It has held that the Award should have been challenged within a period of six months or at best within one year of the date when cause of action accrued. Having heard learned counsel for the parties, we are of the opinion that the Award of the learned Labour Court granting reinstatement in service and payment of back wages suffers from patent illegality and irregularity. The appointment against the public post can be made only in terms of the Recruitment Rules and by inviting applications from all eligible C.W.P. No.19134 of 2007 -3- candidates. In Municipal Council, Samrala vs. Raj Kumar, 2006 (3) SCC 81; Madhya Pradesh Administration Vs. Tribhuwan (2007) 9 SCC 749; Gangadhar Pillai Vs. Siemens Limited, 2007 (1) SCC 533; and Reserve Bank of India vs. Gopinath Sharma, 2006 (6) SCC 221, it has been held that workman cannot be ordered to be reinstated on account of violation of the provisions of Section 25-F of the Act. In Mahboob Deepak vs. Nagar Panchayat, Gajraula, (2008) 1 SCC 575, it has been held that even if the workman has completed 240 days of service, he is not entitled to be reinstated as the appointment is de hors the rules. It has been held that ad hoc or daily wager employees are not entitled to invoke Article 14 and 16 of the Constitution as such entry in government service is back door entry. 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, 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) C.W.P. No.19134 of 2007 -4- 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 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 C.W.P. No.19134 of 2007 -5- 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. The argument that the writ petition has been filed after two years is again is not tenable. The effect of the Award is violation of the principles laid down in Articles 14 & 16 in respect of public employment. The illegality cannot be perpetuated by permitting the workman to be reinstated. The said aspect of the matter has not been examined in judgment referred to the learned counsel for the respondent, in fact, such judgment is prior to the Hon'ble Supreme Court judgments referred to above. Therefore, the said judgments cannot be treated as precedent in respect of reinstatment of the workman. In view of the above, we are of the opinion that the Award of the Labour Court is wholly unjustified and the same is set aside. However, the petitioner shall pay a sum of Rs.25, 000/- in terms of the order passed by this Court in December 19, 2007, within two months of the receipt of copy of the order. With the said direction, the writ petition is disposed of. (Hemant Gupta) Judge 10th November 2008. (Nawab Singh) Monika Judge