C.W.P.No.4801 of 2004 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.4801 of 2004 Date of Decision:- 06.01.2009 State of Haryana through DDPO, Bhiwani ....Petitioner(s) vs. Ram Avtar and another ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.D.S.Nalwa, Additional Advocate General, Haryana for the petitioner. *** AUGUSTINE GEORGE MASIH, J. (Oral) This petition has been preferred by the State of Haryana challenging the award dated 15.10.2003 (Annexure P-1) passed by the Industrial Tribunal-cum-Labour Court, Rohtak vide which the reference made to the Court has been answered in favour of the workman by holding that the services of the workman were terminated illegally and he was entitled to reinstatement on his previous post with continuity of service. He was further allowed 50% back wages from the date i.e. 20.4.1999. Counsel for the petitioner contends that the respondent- workman was engaged purely on daily wages as Care-taker on 13.12.1991 to safe-guard the property of Panchayat Bhawan and he continued as such till his termination on 31.3.1998. The termination of the services of the respondent-workman was on the basis of the abolition of the post on which he was working. Counsel makes this assertion on the basis of the letter C.W.P.No.4801 of 2004 -2- dated 24.9.1997 (Annexure P-6). He, therefore, submits that in the light of the fact that the post on which the respondent-workman was working, stood abolished and in the absence of the said post, there could be no reinstatement of the workman in spite of the violation of Section 25-F of the Industrial Disputes Act. The petitioner at the most could have been granted compensation for the period he had worked with the petitioner. He further submits that the learned Labour Court has proceeded on the assumption that Sections 25-G and 25-H have been violated on the ground that the persons junior to him have been retained in service. He refers to the Award wherein the person allowed to have been retained belongs to a different category i.e. Sweeper whereas the respondent-workman was working on the post of Care-taker which is an altogether different post. For contravention of the provisions of Section 25-G of the Act, the requirement is that a person who is alleged to be junior, should belong to the same cadre and performing the same work as has been performed by the workman. It has further been contended by the counsel for the petitioner that the workman was a daily wager and even if he has completed more than 240 days in a calendar year, the said workman is not entitled to reinstatement against the public post when the engagement of the workman is not in accordance with the terms of recruitment rules. He further submits that the same is further in violation of Articles 14 and 16 of the Constitution of India as no opportunity has been given to all eligible candidates who could have applied and competed for the post which is a public post. Counsel also contends that the name of the respondent-workman was not recommended by the Employment Exchange and, therefore, none of the requirements for filling up a public post has been complied with. For fortifying his C.W.P.No.4801 of 2004 -3- contentions, he has relied upon upon the decisions of Hon'ble Supreme Court in the case of Ghaziabad Development Authority and another vs. Ashok Kumar and another, (2008) 4 SCC 261, Mahboob Deepak vs. Nagar Panchayat, Gajraula and another, (2008) 1 SCC 575, Madhya Pradesh Administration vs. Tribhuban, (2007) 9 SCC 748 and State of M.P. and others vs. Lalit Kumar Verma, (2007) 1 SCC 575. Counsel has further contended that even if, although not accepted by him, juniors have been retained, mere retention of such juniors will not confer any right upon the workman to claim reinstatement. For this, he relies upon a judgment of the Hon'ble Supreme Court in the case of Jaipur Development Authority vs. Ram Sahai and another 2006 (11) SCC 684. The contention of the counsel for the petitioner is that instead of ordering reinstatement of the workman-respondent, he could, at the most, be granted compensation. For this, he relies upon a judgment of the Hon'ble Supreme Court in the case of Telecom District Manager and others vs. Keshab Deb, 2008 (4) SCT 33 in holding that even if the provisions of Section 25-F of the I.D.Act have not been complied with, the respondent-workman was only entitled to be paid a just compensation. None has put in appearance on behalf of the respondent- workman. With the assistance of the counsel for the State, I have gone through the records of the case as well as the impugned award. I am of the considered view that the respondent-workman was engaged against a public post on daily wages. Such engagement was not in terms of the recruitment rules applicable to the post and that too without giving opportunity to all eligible candidates to apply and to be considered for appointment. The said C.W.P.No.4801 of 2004 -4- appointment was, thus, in violation of Articles 14 and 16 of the Constitution of India and therefore, cannot be sustained. In the light of the judgments referred to above passed by the Hon'ble Supreme Court, the award passed by the learned Labour Court, Rohtak cannot be sustained. Consequently, the writ petition is allowed and the impugned award dated 15.10.2003 (Annexure P-1) passed by the Labour Court, Rohtak is hereby quashed. Since the workman has worked for a sufficient long period, it would be appropriate that the compensation of Rs.65,000/- is granted to settle equity between the parties especially in the light of the judgment of the Hon'ble Supreme Court in Telecom District Manager's case (supra). Accordingly, let the petitioner pay compensation of Rs.65,000/- to the respondent-workman within a period of four months from the date of receipt of copy of this order. January 06, 2009 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE Whether referred to Reporters ________ Yes/No