IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 2023 of 2009 Date of decision: 30.04.2009 The Divisional Forest Officer (Territorial), Forest Division, Bhiwani .....PETITIONER VERSUS The Presiding Officer, Industrial Tribunal-cum-Labour Court, Rohtak and another ..... RESPONDENTS CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. D.S.Nalwa, Addl. A.G. Haryana, for the petitioner. Mr. Raj Mohan Singh, Advocate, for respondent No. 2. *** AUGUSTINE GEORGE MASIH, J. (ORAL) In the present writ petition, the challenge is to the impugned award dated 07.01.2008 (Annexure P-5), vide which the Industrial Tribunal- cum-Labour Court, Rohtak, has answered the reference in favour of the workman holding him entitled to reinstatement on his previous post with continuity of service and 50% back wages from the date of issuance of demand notice dated 13.05.2003. CWP No. 2023 of 2009 -2- Counsel for the petitioner contends that due to non-production of the records, adverse inference has been drawn by the Labour Court against the Management and, therefore, he would not be in a position to controvert the findings given by the Labour Court. He further contends that even if the findings recorded by the Labour Court are taken to be correct but still the workman would not be entitled to reinstatement in service. He also contends that there is nothing on record to contend nor is there a finding to the effect that the appointment of the workman was made according to the statutory Rules or on a sanctioned post, which would entitle the workman to hold that post. He, on this basis, contends that the award passed by the Labour Court cannot be sustained and deserves to be set aside. He relies upon the judgment of the Hon'ble Supreme Court in the cases reported as Ghazibad 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 and State of M.P. and others vs. Lalit Kumar Verma, (2007) 1 SCC 575 and Jaipur Development Authority vs. Ramsahai and another, 2006 (II) SCC 684 to buttress his arguments. On the other hand, counsel for respondent No. 2-workman contends that this issue, which is being projected by the petitioner in the present writ petition, was not at all a question before the Labour Court nor was that taken into consideration and since it was not pleaded before the Labour Court, no evidence to that effect was led by the parties. He, on this basis, contends that this contention cannot be raised at this stage. He further contends that there is a finding by the Labour Court holding therein that the provisions, as contained in section 25-F of the Industrial Disputes Act, 1947, have not been complied with and, therefore, termination of the CWP No. 2023 of 2009 -3- workman is not in consonance with law and entitling him to reinstatement in service, is fully justified. I have heard the counsel for the parties and have gone through the records of the case. The contention as raised by the counsel for respondent No. 2- workman cannot be accepted for the reason that it is an admitted position that the workman was a daily wage Labourer and was working as Beldar- cum-Mali from 01.08.1996 to 31.12.1999 as per the assertion of the workman himself in the demand notice. A daily wager does not hold a post. He is paid for the days of work he puts in with the Management. He, therefore, was not appointed on a sanctioned post unless an appointment letter or some other evidence is produced to justify that he was appointed against a sanctioned post. That being not the contention of the workman in his demand notice, the contention as raised by the Management cannot be brushed aside. It is an admitted position that the Labour Court has, in its award, directed reinstatement of the workman on his previous post, which is totally beyond the pleadings. As has been held by the Hon'ble Supreme Court that an appointment which is made dehors the statutory Rules or the same is not on regular basis as per the requirement of the Rules and further conditions, as contained in Articles 14 and 16 of the Constitution of India which deal with the concept of public appointment, having not been followed, such appointed persons would not be conferred with any right to hold the post. The impugned award dated 07.01.2008, therefore, cannot be sustained. The workman has put in service with the Management from 01.08.1996 to 31.12.1999. There is a finding by the Labour Court that termination of the services of the workman was not in consonance with the CWP No. 2023 of 2009 -4- Industrial Disputes Act being violative of the provisions contained in Section 25-F of the Industrial Disputes Act. In view of the wrongful termination of the workman, the workman would be entitled to compensation and that would be just an equitable to settle the equities between the parties, as has been held by the Hon'ble Supreme Court in the case of Telecom District Manager and others vs. Keshab Deb, 2008 (4) SCT 33 and the Division Bench judgment of this Court in the case of State of Haryana vs. Ishwar Singh and another, 2008 (3) SCT 788, the workman is, thus, held entitled to a compensation of Rs. 35,000/-. In view of the above, the present writ petition is allowed. The impugned award dated 07.01.2008 (Annexure P-5) passed by the Industrial Tribunal-cum-Labour Court, Rohtak is hereby set aside, however the workman is held entitled to compensation of Rs. 35,000/-. A direction is issued to the petitioner to release the amount of compensation within a period of two months' from the date of receipt of a certified copy of this order. Writ petition stands disposed of in the above terms. ( AUGUSTINE GEORGE MASIH ) JUDGE April 30, 2009 pj Whether referred to Reporters....................Yes/No.