IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.5906 of 2008 Date of decision : 4th September, 2008 Superintending Engineer, PWD B&R, Bhiwani … Petitioner Versus Surender and another … Respondents CORAM: HON’BLE MR. JUSTICE HEMANT GUPTA HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present : Mr. S.K. Hooda, Senior DAG Haryana for the petitioner. Mr. Sanjay Kaushal, Advocate for respondent No.1. KANWALJIT SINGH AHLUWALIA, J. Present writ petition has been preferred by Superintending Engineer, PWD B&R, Bhiwani (hereinafter called the ‘management’) against Surender respondent No.1 (hereinafter called the ‘workman’). Petitioner is aggrieved against the impugned award (Annexure P-6) passed by learned Labour Court, Rohtak, whereby respondent-workman has been ordered to be reinstated on his previous post with continuity of service and 50 per cent back wages from the date of demand notice. In the present petition, notice of motion was issued. Respondent-workman served a demand notice (Annexure P-1) on 20.09.2002, wherein it was stated that he was engaged as Baildar by Executive Engineer, Provincial Division, PWD B&R Branch, Bhiwani, Civil Writ Petition No.5906 of 2008 Division No.1 on 01.02.1994. Services of the workman were terminated on 01.07.2000. It has been stated in the demand notice that earlier thereto, workman had preferred a Civil Writ Petition along with his other colleagues for regularization of the services. It has been stated that the workman had worked for more than 240 days in the last preceding 12 calendar months and by terminating his services without issuing any notice, petitioner- management has violated provisions of Section 25 of the Industrial Disputes Act, 1947. It has been further stated therein that the principle of ‘last come first go’ was not adhered to and there is a violation of Section 25-H of the Industrial Disputes Act, 1947 (hereinafter called the ‘Act’). The matter was referred by the State of Haryana to the Labour Court. Workman submitted claim statement (Annexure P-2), in which he reiterated what has been stated in demand notice (Annexure P-1). Written statement (Annexure P-3) was filed to the claim statement, wherein it was stated that the workman was engaged on daily wage basis for repair of patch work and petty repair work from time to time and due to the paucity of funds and upgrading of the roads, his services were dispensed with and a notice under Section 25-F of the Act was served upon the petitioner on 27.04.2001 along with retrenchment compensation of Rs.2,775/-. But the same was not intentionally and deliberately collected by the workman. Learned Labour Court held that the compensation was given to the workman not at the time of the termination but subsequently. Therefore, it was held that there was violation of Section 25-F of the Act. It was further held that juniors to the workman have been retained and management has also committed violation of Section 25-G of the Act. We have heard learned counsel for the parties. It has been held by Hon'ble Supreme Court in Jaipur Development Authority v. 2 Civil Writ Petition No.5906 of 2008 Ramsahai and another, (2006) 11 Supreme Court Cases 684, wherein it has been held as under: “28. We would, therefore, proceed on the basis that there had been a violation of Sections 25-G and 25-H of the Act, but, the same by itself, in our opinion, would not mean that the Labour Court should have passed an award of reinstatement with entire back wages. This Court time and again has held that the jurisdiction under Section 11-A must be exercised judiciously. The workman must be employed by State within the meaning of Article 12 of the Constitution of India, having regard to the doctrine of public employment. It is also required to recruit employees in terms of the provisions of the rules for recruitment framed by it. The respondent had not regularly served the appellant. The job was not of perennial nature. There was nothing to show that he, when his services were terminated any person who was junior to him in the same category, had been retained. His services were dispensed with as early as in 1987. It would not be proper to direct his reinstatement with hack wages. We, therefore, are of the opinion that interest of justice would be subserved if instead and in place of reinstatement of his services, a sum of Rs.75,000 is awarded to the respondent by way of compensation as has been done by this Court in a number of its judgments, (See State of Rajasthan v. Ghyan Chand, (2006) 7 SCC 755).” However, reliance can also be placed upon a Division Bench judgment of this Court rendered in The District Manager, Haryana Agro- Industries Corporation Ltd. and another v. Workman Multan Singh and another, CWP No. 13054 of 2006 decided on 28th August, 2007, wherein it has been held as under: “It is not in dispute that the respondent-workman was a daily wager. He had not been taken in service against sanctioned post in accordance with the statutory provisions or 3 Civil Writ Petition No.5906 of 2008 the rules framed thereunder. The appointment was not in consonance with Articles 14 and 16 of the Constitution of India. The rights of persons, such as the respondent-workman have been considered by a Division Bench of this Court in Tek Chand v. The Presiding Officer and others (CWP 18587 of 2004 decided on 20.7.2007) while relying on Municipal Council, Samrala v. Raj Kumar, (2006) 3 SCC 81 (Paras 8-16) and Reserve Bank of India v. Gopinath Sharma (2006) 6 SCC 221 (Para 27), and it has been held that even if the workman had completed 240 days of service, the nature of employment being on daily wages, Section 25-F of the Act will not be attracted. Rather Sub Section (bb) of Section 2(oo) of the Act will be attracted to the case of a daily wager when employer is governed by statutory provisions. In Himanshu Kumar Vidyarthi v. State of Bihar, AIR 1997 SC 3657 (Para 3) while considering the claim of daily wage employees in public employment who called in question their termination, it has been held that every department of the Government cannot be treated to be “industry”. When the appointments are regulated by the statutory rules, the concept of “industry” to that extent stands excluded. Once it is found that such employees are not appointed to the posts in accordance with the rules but were engaged on the basis of need of the work, they are employees working on daily wages. Under these circumstances, their dis-engagement from service cannot be construed to be retrenchment under the Industrial Disputes Act. The concept of “retrenchment” cannot be stretched to such an extent as to cover these employees. In Gangadhar Pillai v. Siemens Ltd. (2007) 1 SCC 533 (Para 28), the Hon'ble Supreme Court held that on completion of 240 days of continuous service for a year, the employee cannot be held to be entitled for regularization of his services and/ or a permanent status. In State of M.P. and others v. Lalit Kumar Verma, (2007) 1 Supreme Court Cases 575 (Paras 12, 13 and 17), the distinction between irregular appointment and illegal 4 Civil Writ Petition No.5906 of 2008 appointment has been defined. It has been held that in the event the appointment is made in total disregard of the constitutional scheme as also the recruitment rules framed by the employer, which is a State within the meaning of Article 12 of the Constitution of India, the recruitment would be an illegal one. In State of M.P. and others v. Yogesh Chandra Dubey and others, (2006) 8 Supreme Court Cases 67 (Para 9), it has been held that once a person is appointed without there being a sanctioned post or notification of vacancies, in disregard to statutory rules, regularization cannot follow as it would tantamount to appointment and would result in back door appointment which does not have legal sanction. In M.P.Housing Board and another v. Manoj Shrivastava, (2006) 2 Supreme Court Cases 702 (Paras 8, 9, 10, 11, 15, 16 and 17), it has been held by the Hon'ble Supreme Court that a person with a view to obtain status of “permanent employee” must be employed in terms of statutory rules. It is one thing to say that a person was appointed on adhoc basis or as a daily wager but another thing to say that he was appointed against a sanctioned post lying vacant, upon following the due procedure prescribed therefore. A daily wager does not hold the post unless he is appointed in terms of the Act and rules framed thereunder and therefore, does not derive any legal right. Such an appointment is clearly illegal. In M.P.State Agro Industries Development Corporation Ltd. and another v. S.C. Pandey, (2006) 2 Supreme Court Cases 716, after framing the issues in Para 7 thereof, in Paras 17 and 18, it has been held that:- “(1) when the conditions of service are governed by two statutes, one relating to selection and appointment, and the other relating to the terms and conditions of service, an endeavour should be made to give effect to both the statutes; (2) A daily wager does not hold a post as he is not appointed in terms of the provisions of the Act and 5 Civil Writ Petition No.5906 of 2008 rules framed thereunder and in that view of the matter he does not derive any legal right; (3) Only because an employee had been working for more than 240 days, that by itself would not confer any legal right upon him to be regularized in service; and (4) If an appointment has been made contrary to the provisions of statute, the same would be void and the effect thereof would be that no legal right would be derived by the employees by reason thereof.” In view of nature of appointment of the respondent-workman, as noticed hereinabove, we find that the respondent-workman cannot be directed to be reinstated. No such person can be taken in service or his services regularized when public employment is involved. Therefore, the reasoning given by the learned Labour Court that there was a violation of Section 25-G of the Act, cannot be sustained in case of a daily wager. Even if there is violation of Section 25-F of the Act then also workman is not entitled to reinstatement. Learned counsel for the respondent-workman has stated that as per the finding of the Labour Court, amount of retrenchment was not paid at the time of retrenchment and if subsequently the amount is paid, violation of Section 25-F of the Act cannot be cured. We are afraid, this contention of the respondent-workman cannot be accepted. In Hoshiarpur Central Cooperative Bank Ltd. v. Presiding Officer, Labour Court and others, 2005(1) Recent Service Judgments 222, a judgment of this Court, it was held that delay in payment of compensation cannot be considered as violation of Section 25-F of the Act. A similar view has also been taken by Hon’ble Apex Court in Parmod Jha 6 Civil Writ Petition No.5906 of 2008 and others v. State of Bihar, AIR 2003 Supreme Court 1872. Therefore, on this count also, reasoning given by the Labour Court cannot be sustained. Consequently, we accept the present writ petition, set aside the impugned award and hold that respondent-workman is not entitled to any relief as granted by the Labour Court vide impugned award (Annexure P-6). [HEMANT GUPTA] JUDGE [KANWALJIT SINGH AHLUWALIA] JUDGE September 04, 2008. rps 7