CWP No.6096 of 2009 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH CWP No.6096 of 2009 Date of decision July 21 2009 The Divisional Forest Officer, Arawali Van Mandal, Charkhi Dadri District Bhiwani now The Divisional Forest Officer (Territorial), Bhiwani ....... Petitioner Versus The Presiding Officer, Industrial Tribunal-cum-Labour Court and another . .......Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:- Mr. Kartar Singh, AAG., Haryana for the petitioner. Mr. Deepak Sonak, Advocate for the respondent No.2. **** 1. Whether reporters of local newspapers may be allowed to see the judgment ? 2. To be referred to the reporters or not? 3. Whether the judgment should be reported in the digest? K. Kannan, J (oral). 1. The award directing reinstatement of a daily wager in Forest Department is the matter that is put in challenge by means of a writ petition filed by the aggrieved party-The Divisional Forest Officer against whom the award was passed. While passing the award the Labour Court found that the Management had not produced the muster roll and drawing an adverse inference upheld the contention of the workman that he had been employed from 7.2.1995 to 31.3.1998. It took note of the evidence given on behalf of the workman that persons who had been junior in rank had been allowed to continue in service while his services were orally terminated. 2. The contention on behalf of the Management was that the workman had been employed in Aravali Project which had been CWP No.6096 of 2009 2 wound up on 31.7.2001 and the engagement of the workman as a daily wager did not give to him right of employment to seek reinstatement. There was no regular post to which the workman was entitled to remain in employment and therefore, the employment that was given to him in violation of Article 14 and 16 of the Constitution cannot avail to the workman to plead for being retained in service. Again it is the very violation of Article 14 and 16 that the workman had also complained against the Management by stating that some of his juniors were being retained and the Management was making invidious distinction between various classes of persons. 3. While considering the issues of public appointment it should be noted whether the engagement on a daily basis would give rise to a right to employment even in cases of non-compliance of the provisions of Section 25-F. Having regard to the law laid down in a string of decisions that comes from the Secretary, State of Karnatka Vs. Umadevi and 2006 (4) SCC 1 that mere length of service in public appointments done in violation of recruitment rules or engagement in a non-sanctioned post cannot avail of a workman a right of reinstatement, the direction for reinstatement in a case where the project is reported to have come to a close for which alone the workman had been employed, it shall be impermissible to direct reinstatement. Having regard to the fact that the workman had worked for a period of 38 months, the only relief that the workman would be entitled to would be compensation which I assess under the circumstances to Rs.35,000/-. 4. Learned counsel appearing for the workman states that after the award of the Labour Court, the petitioners have actually reemployed him and that he is in service. Learned counsel refers to the decision of a Division Bench of this Hon'ble Court dated 20.5.2008 where in a case of reinstatement subsequent to the award of the Labour CWP No.6096 of 2009 3 Court, with an expression of consent by the workman that he would not press for his back wages, the Division Bench merely modified the award to the extent that the workman would not be entitled to back wages. The Division Bench disposed of the writ petition on a matter of concession before the Court and I do not think, it lays down any proposition of law that would upset the law laid down by the Hon'ble Supreme Court relating to a daily wager on the right of reinstatement. If the petitioners have decided to re-engage him on the same terms as a daily wager or in any other manner, this order passed in the writ petition shall not be construed as withdrawing to the workman even such a benefit. This writ petition merely answers the reference which was made to the Labour Court and for which an adjudication was made and the order in the writ petition is again confined to the state of affairs that existed on the date when he was terminated from services and gives an answer to what the workman was legally entitled to. Any other modification which the Management and the workman desire to come to, it shall be independent of the order which is made by this Court. 5. Subject to above, the writ petition is disposed of setting aside the order of the Labour Court directing reinstatement and confining the relief only to compensation of Rs.35,000/-. (K. KANNAN) JUDGE July 21, 2009 archana