IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.10756 of 2008 Date of Decision:- 28.01.2009 The Executive Engineer, Provincial Division PWD B&R, Branch Charkhi Dadri ....Petitioner(s) vs. Presiding Officer, Industrial Tribunal-cum- Labour Court, Rohtak and others ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.D.S.Nalwa, Addl.A.G.Haryana, for the petitioner. Mr.Arun Singla, Advocate for respondents No.2 and 3. *** AUGUSTINE GEORGE MASIH, J. (Oral) In the present writ petition, challenge is to the award dated 3.11.2006 Annexure P-5 passed by the Industrial Tribunal-cum-Labour Court, Rohtak vide which the reference has been answered in favour of the workman holding him entitled to reinstatement in service with continuity of service and 50% back-wages from the date of demand notice i.e. 25.8.2001. Counsel for the petitioner contends that even if the findings as given by the Labour Court are accepted, the directions with regard to the reinstatement of the workman with continuity of service and 50% back- wages could not have been granted by the Labour Court in the light of the authoritative pronouncements of the Hon'ble Supreme Court on this issue wherein the Hon'ble Supreme Court has held that when Articles 14 and 16 of the Constitution of India have not been complied with and the C.W.P.No.10756 of 2008 -2- appointment of the workman is not as per the statutory rules, no reinstatement can be granted. The only solace the workman can claim is by way of compensation and that too for settling the equities between the parties. Counsel for the petitioner relies upon the judgments of the Hon'ble Supreme Court in 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 post 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, therefore, even if the workman has completed 240 days of service, the said workman 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. On the other hand, learned counsel for the workman submitted that the workman has been reinstated in terms of the Award of the Labour Court, therefore, this Court should not interfere against the award at this stage. C.W.P.No.10756 of 2008 -3- Having heard learned counsel for the parties, I am of the opinion that the workman was engaged against a public post on daily wages. 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. Still further, the retention of juniors will not confer any right on the workman to be reinstated as illegality in continuing to engage a daily wager will only mean perpetuating an illegality. In Jaipur Development Authority's case (supra), the Hon'ble Supreme Court has held that even in case of breach of the provisions of Section 25-G and 25-H of the Act, the workman cannot be ordered to be reinstated. Following the above-referred judgment, I am of the considered view that the workman cannot be ordered to be reinstated in service in the light of the law laid down by the Hon'ble Supreme Court. However, to balance the equity between the parties, it would be just and proper if a compensation of Rs.50,000/- is granted to the petitioner. It is ordered accordingly. A direction is issued to the petitioner to make payment of the said compensation to the workman within a period of two months from the date of receipt of certified copy of this order. January 28, 2009 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE Whether referred to Reporters ________ Yes/No