IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. L.P.A. No. 536 of 2010 Date of Decision: December 8, 2010 Karambir …Appellant Versus Haryana Urban Development Authority and another …Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON’BLE MS. JUSTICE RITU BAHRI Present: Mr. S.K. Verma, Advocate, for the appellant. Mrs. Neena Madan, Advocate, for respondent No. 1. 1. To be referred to the Reporters or not? Yes 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. 1. The instant appeal under Clause X of the Letters Patent is directed against the judgment dated 4.2.2009, rendered by the learned Single Judge setting aside the award dated 2.4.2003 passed by the Labour Court holding that the workman-appellant is entitled to continuity of service with 50% back wages from the date of demand notice i.e. 1.8.1995. The basic reason for the aforesaid view is evident from the impugned order which has been passed by the learned Single Judge and the relevant portion of the same is reproduced as under:- “ Counsel for the petitioner contends that even if the finding which has been recorded by the Labour Court is accepted, the L.P.A. No. 536 of 2010 respondent-workman had only worked about one year with the petitioner and, therefore, he would not be, in any case, entitled to reinstatement in service but at the most would be entitled to compensation for the said period of one year. He contends that it is an admitted position that the respondent-workman was appointed on daily wage basis, without complying with the statutory provisions governing his service. He further contends that there is clear violation of Articles 14 and 16 of the Constitution of India in the appointment process and since the appointment of the respondent-workman not in accordance with the statutory rules on a public post he is not entitled to reinstatement in service in the light of 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 Division Bench of this Court has held that a daily wage employee even in case there is non-compliance of the Act and there is violation of Sections 25-F and 25-H, is not entitled to reinstatement but would be entitled to compensation. In the said judgment also, the workman has been granted compensation.” 2. We have heard learned counsel for the parties at considerable length and are of the view that the findings recorded by the learned Single Judge to set aside the order of reinstatement and back wages, is wholly without merit. A similar controversy has been raised before Hon’ble the Supreme Court in the case of Harjinder Singh v. Punjab State Warehousing Corporation, (2010) 3 SCC 192. In the said case, this Court had set aside the award of the Labour Court on the ground that the provisions of Articles 14 and 16(1) of the 2 L.P.A. No. 536 of 2010 Constitution were not complied with when the workman-Harjinder Singh entered into service. Taking notice of the aforesaid situation, their Lordships’ of Hon’ble the Supreme Court in para 14 of the judgment has observed as under:- “14. ……the learned Single Judge substituted the award of reinstatement of the appellant with compensation of Rs. 87,582/- by assuming that appellant was initially appointed without complying with the equality clause enshrined in Articles 14 and 16 of the Constitution of India and the relevant regulations. While doing so, the learned Single Judge failed to notice that in the reply filed on behalf of the corporation before the Labour Court, the appellant's claim for reinstatement with back wages was not resisted on the ground that his initial appointment was illegal or unconstitutional and that neither any evidence was produced nor any argument was advanced in that regard. Therefore, the Labour Court did not get any opportunity to consider the issue whether reinstatement should be denied to the appellant by applying the new jurisprudence developed by the superior courts in recent years that the court should not pass an award which may result in perpetuation of illegality. This being the position, the learned Single Judge was not at all justified in entertaining the new plea raised on behalf of the corporation for the first time during the course of arguments and over turn an otherwise well reasoned award passed by the Labour Court and deprive the appellant of what may be the only source of his own sustenance and that of his family.” 3. When the facts of the present case are examined in the light of the 3 L.P.A. No. 536 of 2010 aforesaid observations, it is evident that no pleadings, evidence or any argument was raised before the Labour Court by the management-respondent No. 1 to conclude that the initial appointment of the workman-appellant was in contravention of the equality clause as enshrined under Articles 14 and 16(1) of the Constitution. Moreover, the learned Single Judge has not kept in view the parameters laid down for exercising certiorari jurisdiction by the High Court under Article 226 of the Constitution, as laid down by Hon’ble the Supreme Court in the cases of Syed Yakoob v. K.S. Radhakrishnan, AIR 1964 SC 477 and Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675. Even otherwise we do not find any mitigating circumstance in favour of the management- respondent to mould the relief other than the relief of re-instatement. It is well settled that reinstatement is the rule whereas refusal is an exception. Such like exception could be where a workman is to work on a post or office of trust and confidence or the post is not in existence etc. No such circumstances have been pointed out by the learned counsel for the management-respondent No. 1. 4. As a sequel to the above discussion, this appeal succeeds and the judgment rendered by the learned Single Judge is set aside. The award of the Labour Court is restored. The management-respondent No. 1 is directed to reinstate the workman-appellant in service immediately without further delay. (M.M. KUMAR) JUDGE (RITU BAHRI) December 8, 2010 JUDGE 4 L.P.A. No. 536 of 2010 Pkapoor 5 C.M. Nos. 1513-15 of 2010 in LPA No. 536 of 2010 Present: Mr. S.K. Verma, Advocate, for the applicant-appellant. Mrs. Neena Madan, Advocate, for the non applicant-respondent No. 1. C.M. No. 1513 of 2010: C.M. allowed as prayed. C.M. No. 1514 of 2010: For the reasons stated in the application, delay of 154 days in re- filing the appeal is condoned. C.M. stands disposed of. C.M. No. 1515 of 2010: For the reasons stated in the application, delay of 153 days in filing the appeal is condoned. C.M. stands disposed of. (M.M. KUMAR) JUDGE (RITU BAHRI) December 8, 2010 JUDGE Pkapoor