C.W.P.No.13921 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.13921 of 2008 Date of Decision:- 18.02.2009 The Executive Engineer, PWD, B&R Brach Bahadurgarh ....Petitioner(s) vs. Pardeep Kumar and another ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.D.S.Nalwa, Additional Advocate General, Haryana for the petitioner. Mr.Narinder Sharma, Advocate for respondent No.2. *** AUGUSTINE GEORGE MASIH, J. (Oral) In the present writ petition, challenge is to award dated 29.4.2008 (Annexure P-5) passed by the Industrial Tribunal-cum-Labour Court, Rohtak, vide which reference has been answered in favour of the workman holding him entitled to reinstatement with continuity of service and 50% back wages from the date of demand notice i.e.9.5.2003. Counsel for the petitioner contends that even if the findings recorded by the Labour Court are taken to be correct, the workman at best can be held entitled to compensation for the period he had worked with the respondents and cannot be reinstated in service. He contends that the initial appointment of the workman was not in accordance with law, and therefore, the provisions as contained in Articles 14 and 16 of the Constitution of C.W.P.No.13921 of 2008 -2- India and Statutory Rules having not been complied with, the appointment of the workman cannot be termed to be in accordance with law which would lead to the indisputable conclusion that he is not holding the post which would entitle him to reinstatement. He, however, contends that the post on which the reinstatement had been ordered by the Labour Court is a public post and, therefore, the provisions as per the Statutory Rules having not been complied with, cannot give the workman a right to hold that post with continuity of service. In support of his contention, he has relied upon the judgments of the Hon'ble Supreme Court in the cases of Ghaziabad 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, Uttranchal Forest Development Corpn. vs. M.C.Joshi, (2007) 2 SCC (L&S) 813, State of M.P. and others vs. Lalit Kumar Verma, (2007) SCC 575, to contend that the posts under the State are required to be filled up in terms of the Recruitment Rules and by inviting applications from all eligible candidates. It is contended that the respondent-workman was engaged on daily wages without following the rules and principles of Articles 14 and 16 of the Constitution and, therefore, even if the workman has completed 240 days of service, he is not entitled to be reinstated and also for the grant of back wages. Reliance is also placed upon the judgment of the Hon'ble Supreme Court in Jaipur Development Authority vs. Ramsahai and another, (2006) 11 SCC 684. Counsel for the petitioner further submits that at the most the respondent-workman would be entitled to compensation for the period he C.W.P.No.13921 of 2008 -3- has worked with the petitioner but he cannot be reinstated in service in the light of the judgment of the Hon'ble Supreme Court in the case of District Telecom Manager and others vs. Keshab Dev, 2008 (4) S.C.T.33 and a Division Bench judgment of this Court in the case of State of Haryana vs. Ishwar Singh and another, 2008 (3) S.C.T. 788. This Court has held that a daily wage employee, even in case there is non-compliance of the Act and there is violation of Sections 2 (oo) (bb), 25-F, 25-G and 25-H, is not entitled to reinstatement on a public post but would be entitled to compensation. In the said judgment also, this Court has granted compensation to the workman. Counsel for the respondent/workman supports the award of the Labour Court. I have given my thoughtful consideration to the submissions made by the learned counsel for the parties and with their able assistance have gone through the records of the case. It is not in dispute that the post on which the workman has been reinstated by the Labour Court vide the impugned award, is a public post. Such engagement was not in terms of the Recruitment Rules applicable to the post or by giving opportunity to all eligible candidates to apply and to be considered for appointment. Therefore, the workman cannot be ordered to be reinstated. The submissions raised by the counsel for the respondent-workman cannot be accepted for the reason that the judgments aforesaid which have been relied upon by the counsel for the petitioner, would not permit such recourse in the present case. Following the judgment of the Hon'ble Supreme Court in Keshab Dev's case (supra) and the Division Bench judgment of this Court C.W.P.No.13921 of 2008 -4- in Ishwar Singh's case (supra), the award dated 29.4.2008 (Annexure P-5) passed by the Industrial Tribunal-cum-Labour Court, Rohtak is hereby set aside. The workman who has worked with the petitioner for seven years, is held entitled to compensation of Rs.75,000/- to settle the equities between the parties in lieu of reinstatement. This petition is disposed of with a direction to the petitioner to make the payment of compensation of Rs.75,000/- within a period of two months from the date of receipt of copy of this order. February 18, 2009 ( AUGUSTINE GEORGE MASIH ) mandeep kr/poonam JUDGE Whether referred to Reporters ________ Yes/No