C.W.P. No.6866 of 2003 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.6866 of 2003 Date of Decision: 05.11.2009 Meer Lal .....Petitioner Versus Wild Life Conservation Warden and another ....Respondents Present: Mr. Ashwani Bakshi, Advocate for the petitioner. Mr. D.S. Nalwa, Addl. A.G., Haryana. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? -.- K. KANNAN J.(ORAL) 1. The award, which is in challenge before this Court is rejection of a reference sought at the instance of the workman, who claimed that he had been appointed as a daily wager with the respondent in November, 1994. The management refuted the contention of the workman that he had 240 days of continuous service and denied that the workman was entitled to reinstatement. An aspect, which was not a matter of specific pleading was urged at the time of the passing of the award before the Labour Court when it was sought to be contended on behalf of the respondent that the employment had been without sponsorship through employment exchange and his entry was a backdoor C.W.P. No.6866 of 2003 -2- entry. The said plea in defence was accepted by the Labour Court and making reliance on the judgment in Brij Bhushan Vs. Industrial Tribunal-cum-Labour Court, Panipat 1998(2) PLR 819, the court found that the appropriate relief will be grant of compensation of Rs.20,000/-. 2. The workman has assailed the award on the ground that the reliance on judgment of the Division Bench in Brij Bhushan's case was misplaced if the Labour Court had found that there was no plea of backdoor entry or illegality of appointment which ought to have consistent with its finding that the workman had 240 days of continuous service directed reinstatement also. Learned counsel appearing for the petitioner refers to the decision in Brij Bhushan Vs. Industrial Tribunal- cum-Labour Court, Panipat 1998(3) SCT 17, which raised the question for consideration that was required to be decided in a case where the appointment had been illegal and whether in such case, the workman would be entitled to reinstatement. The Hon'ble Bench referred to also decisions of the Hon'ble Supreme Court when it said that it would not be correct to state that the Labour Court was duty bound to order reinstatement in each and every case of wrongful retrenchment and in appropriate cases departure from the said rule would also be made. 3. There are innumerable authorities that support the position that if the appointment was illegal or a backdoor entry, C.W.P. No.6866 of 2003 -3- the issue of reinstatement or regularization will not arise. The proposition was set authoritatively by the pronouncement of the Hon'ble Supreme Court in Secretary, State of Karnataka Vs. Uma Devi and others 2006(4) SCC 1. The said decision although was set in the context of regularization of service in public employment, however, it made telling observations with reference to public appointment as well. Learned counsel Sh. Nalwa appearing for the State could, therefore, contend that although the plea of backdoor had not been stated in the writ petition, such an argument was made before the Labour Court and the Labour court had decided to apply its discretion to allow only for the relief of compensation. A discretion so exercised shall not be interfered according to him in the writ petition. He also urged that if nature of appointment being in public appointment was not denied by the workman, such employment done without reference to sponsorship through employment exchange was perceived illegal and a direction for reinstatement would result in a breach of the principles enshrined under Articles 14 and 16 of the Constitution. 4. The illegality of appointment is invariably, in my view, a mixed question of fact and law. If such a contention had been taken by the management and an issue had been specifically framed, it would have been perfectly possible for a workman to prove whether there was hardly an occasion for the workman to C.W.P. No.6866 of 2003 -4- let in any evidence about what invariably governed the principles of appointment and how the petitioner had himself been appointed. It cannot be a matter of mere presumption that appointment done of a workman must be presumed in all cases to be illegal only if it was sponsored through employment exchange. The Employment Exchange Act itself stipulates some exceptions when a deviation from the Act would be possible unless it had been put in issue. In my view, it would be wrong to characterize an appointment as illegal and deny to the workman a continuous in his employment. If there was a reference to a decision of Division Bench by the Labour Court, the reference was clearly misplaced. In the Division Bench ruling, there was an admitted position that the appointment had been illegal but the workman was contending for a position that if there was a violation of the mandate of Section 25-F of the Industrial Disputes Act, he was entitled to reinstatement. The Bench was, therefore, also setting down the law with reference to decision of the Hon'ble Supreme Court in Surendra Kumar Verma etc. Vs. The Central Government Industrial Tribunal-cum-Labour Court, New Delhi and another AIR 1981 SC 422 where the Hon'ble Supreme Court had given several examples when reinstatement cannot always be possible even if there had been a violation of Section 25-F of the Industrial Disputes Act. In this case, if the admitted position was that there was no plea relating to the employment as being illegal C.W.P. No.6866 of 2003 -5- or in contravention of any of the recruitment rules, the corollary would be that workman is entitled to reinstatement. Such a relief may not be possible only if other parameters do not exist that there is no employment available. The nature of engagement itself was temporary or it was in a particular projection, which has ceased. These are not exhaustive but mere illustration of when it shall be possible for a Court to deny a relief of reinstatement even if it found that there had been a violation of Section 25-F of the Industrial Disputes Act. 5. The award of the Labour Court is under the circumstances set aside and the workman shall be entitled to the relief of reinstatement with continuity of service. The workman has not rendered his services to the management ever since the date of his termination from 1997 till date and I think it will be appropriate that the workman is awarded only 50% of his back wages. The writ petition is allowed in the above terms. There shall be, however, no direction as to costs. (K. KANNAN) JUDGE November 05, 2009 Pankaj*