C.W.P.No.21000 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.21000 of 2008 Date of Decision:- 05.05.2009 Executive Engineer, National Highway, PWD (B&R), Provisional Division No.3, Branch Sukhpura Chowm, Rohtak ....Petitioner(s) vs. Tejinder 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.N.C.Kinra, Advocate for workman-respondent No.1. *** AUGUSTINE GEORGE MASIH, J. (Oral) In the present writ petition, challenge is to the award dated 15.4.2008 (Annexure P-4) 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 on his previous post with continuity of service and 50% back wages from the date of demand notice i.e. 15.6.2001. Counsel for the petitioner contends that as per the assertion of the workman, he was engaged as Patwari by the Management on 5.5.1999 and he worked upto 10.6.2001. It was contended by him that the services of the workman were terminated without giving him any notice or holding any C.W.P.No.21000 of 2008 -2- enquiry or complying with the conditions as envisaged under the Industrial Disputes Act. He further contended that the workman had completed more than 240 days with the Management in the 12 preceding months and, therefore, his termination was bad in law. He submits that it is an admitted position that the workman was not engaged as a regular employee but was appointed due to exigencies of work. It is not the assertion of the respondent-workman that he was appointed in accordance with the statutory rules governing the service rather it is the specific stand of the petitioner- Management in its reply to the claim statement that the workman was appointed on daily wage basis. Even the workman in his claim statement has stated that he was appointed on daily wage basis and his salary was Rs.2280/- per month. On this basis, he submits that even if the findings as recorded by the Labour Court are taken to be correct, although the same is based on the adverse inference which has been drawn by the Court for non- production of the records, then also the workman cannot be reinstated in service as the post on which he has been ordered to be reinstated is a public post and the appointment of the workman was not in consonance with the statutory rules governing the service nor was it on a regular basis. He submits that even if the provisions as contained under the Industrial Disputes Act have not been complied with, but still in the light of 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 C.W.P.No.21000 of 2008 -3- SCC (L&S) 813, State of M.P. and others vs. Lalit Kumar Verma, (2007) SCC 575 the workman would not be entitled to reinstatement in service as his appointment was de hors the statutory rules governing the service and the Scheme as envisaged under Articles 14 and 16 of the Constitution of India have not been complied with. The stand of the workman in his written statement is that his services were terminated in violation of the provisions of Industrial Disputes Act and the findings which have been recorded by the Labour Court are based on the evidence led by the parties, which do not call for any interference by this Court. On the basis of the violation of the provisions as contained in the Act, the termination of the workman from service is not in accordance with law and, therefore, he would be entitled to reinstatement in service which has been ordered by the Labour Court. That being so, the award passed by the Labour Court in favour of the workman deserves to be upheld. I have heard counsel for the parties and have gone through the records of the case. The claim statement has been placed on record as Annexure P-2 and in para 1 thereof the workman himself has submitted that he had worked continuously with the petitioner from 05.05.1999 to 10.6.2001 on the post of Patwari on daily wage basis and his salary was Rs.2280/- per month. It has no where been stated that his appointment was in accordance with the statutory rules governing the service or the procedure as prescribed under the rules was followed for making the appointment. There is no dispute that as per the finding given by the Labour Court, the termination of the workman has been held to be not in accordance with the C.W.P.No.21000 of 2008 -4- Industrial Disputes Act due to non-compliance of the provisions of Section 25-F of the Act ibid. However, in view of the judgments of the Hon'ble Supreme Court relied upon by the counsel for the petitioner, the workman cannot be reinstated in service as the post on which he has been ordered to be reinstated is a public post which was not filled in consonance with the statutory rules governing the service. Since the services of the workman were not terminated in accordance with the provisions of the Act, the workman would be entitled to compensation to balance the equities between the parties. In the light of the judgements 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, the workman is held entitled to compensation of Rs.20,000/- as he had worked with the petitioner-Management from 5.5.1999 to 10.6.2001 as per the finding recorded by the Labour Court. In view of the above, the present writ petition is allowed; the impugned award dated 15.4.2008 (Annexure P-4) passed by the Industrial Tribunal-cum-Labour Court, Rohtak is set aside. However, the workman is held entitled to compensation of Rs.20,000/-. A direction is issued to the petitioner to release the amount of compensation as assessed above within a period of two months from the date of receipt of certified copy of this order. At this stage, counsel for the respondent-workman states that the workman has been reinstated in service. He submits that the C.W.P.No.21000 of 2008 -5- respondent-workman would make a representation to the petitioner which may be considered and decided. If such a representation is made, the petitioner may consider the same sympathetically. May 05, 2009 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE Whether referred to Reporters ________ Yes/No