IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 17679 of 2006 Date of decision: 16.02.2009 Ramesh Kumar .....PETITIONER VERSUS The Executive Engineer and another ..... RESPONDENTS CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. Ashwani Bakshi, Advocate, for the petitioner. Mr. Kartar Sigh, AAG, Haryana, for respondent No. 1. *** AUGUSTINE GEORGE MASIH, J. (ORAL) Counsel for the petitioner contends that in the present writ petition, the award, which is under challenge is dated 21.02.2006 (Annexure P-3), which has been passed by the Industrial Tribunal-cum- Labour Court, Gurgaon, which cannot be sustained for the reason that despite holding that the retrenchment compensation has not been paid to the workman and the provisions of the Industrial Disputes Act have not been complied with, still he has not been ordered to be taken back in service and instead the petitioner having held entitled to compensation of CWP No. 17679 of 2006 -2- Rs. 50,000/- for his illegal termination from service. He further contends that persons, lower in the seniority list, have been taken back in service and working in compliance with the award passed in their favour and, therefore, he states that the present award passed by the Labour Court cannot be sustained. Counsel for respondent No. 1, on the other hand, submits that those employees were taken back in service in compliance of the award passed in their favour but in view of the fact that the post, on which the workman was working, is a public post and his appointment is not in accordance with the statutory rules, no reinstatement could have been granted by the Labour Court. It is not in dispute that the initial appointment of the workman was not as per the statutory rules and, therefore, the provisions of Articles 14 and 16 of the Constitution of India have not been complied with. Counsel for the petitioner contends that there is no evidence to that effect and, therefore, this argument, as raised by the counsel for respondent No. 1, cannot be sustained. I have given my thoughtful consideration to the submissions made by the counsel for the parties and the judgments passed by the Hon'ble Supreme Court in the cases reported as Ghazibad 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 and State of M.P. and others vs. Lalit Kumar Verma, (2007) 1 SCC 575, wherein it has been held that the posts under the State are required to be filled up in terms of the statutory rules governing the service by inviting applications from all eligible candidates and thereafter, on consideration of the same, the appointment can be said to be a valid appointment. It has been contended that the petitioner-workman was engaged on daily wages CWP No. 17679 of 2006 -3- 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 was not entitled to be reinstated and also for the grant of back wages. In view of the above, I am of the opinion that the workman was engaged against a public post on daily wage basis. Such engagement was not in terms of the statutory Recruitment Rules applicable to the post which would have required giving opportunity to all eligible candidates to apply and to be considered for appointment. Therefore, the workman cannot be ordered to be reinstated. 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. In view of the above, the impugned award dated 21.02.2006 passed by the Industrial Tribunal-cum-Labour Court, Gurgaon (Annexure P-3), is upheld. Adequate compensation of Rs. 50,000/- for two years service, which has been rendered by the workman, has been granted by the Labour Court to the workman in lieu of his illegal termination, which is quite justified and calls for no interference by this Court. The present petition is dismissed. ( AUGUSTINE GEORGE MASIH ) JUDGE February 16, 2009 pj