IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 13113 of 2008 Date of decision: 25.03.2009 Improvement Trust, Amritsar, through its Executive Officer .....PETITIONER VERSUS Presiding Officer, Labour Court, Amritsar and another ..... RESPONDENTS CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. G.S.Sandhawalia, Advocate, for the petitioner. Mr. B.R.Mahajan, Advocate, for respondent No. 2. *** AUGUSTINE GEORGE MASIH, J. (ORAL) In the present writ petition, the challenge is to the award dated 12.09.2007 (Annexure P-16) passed by the Labour Court, Amritsar, vide which the reference has been answered in favour of the workman holding him entitled to reinstatement on the post of Junior Draftsman with continuity of service and full back wages from the date of demand notice i.e. 11.06.2002. CWP No. 13113 of 2008 -2- Counsel for the petitioner contends that the workman was appointed on purely contract basis vide resolution dated 20.12.2000 (Annexure P-3) for a period of three months on a fixed salary of Rs. 4,000/- as Junior Draftsman. Thereafter, on his request, the period was further extended by three months vide resolution dated 27.03.2001 (Annexure P- 6). The workman was not allowed to continue in service after 31.08.2001. He, therefore, on this basis, contends that since his appointment was purely on contract basis and for a fixed term, the provisions of Section 2 (oo) (bb) of the Industrial Disputes Act , 1947 (hereinafter referred to as 'the Act') would be applicable and the workman would not be entitled to the protection as provided under Section 25-F of the Act. He, on this basis, submits that the award passed by the Labour Court cannot be sustained and, therefore, deserves to be set aside. On the other hand, counsel for respondent No. 2 contends that the post, on which the workman was appointed, was a clear vacant post of Junior Draftsman. He had worked with the petitioner and completed more than 240 days. He further contends that initially his appointment was for a fixed period but after the two extensions, no further extension was granted and he continued as such without any fixed term till he was not allowed to continue after 31.08.2001. On this basis, he contends that the provisions of Section 2 (oo) (bb) of the Act would not be applicable as the fixed tenure of the post has come to an end and thereafter, he was not allowed to continue. He further contends that the petitioner has, vide its resolution No. 58 Ex. W-6, clearly mentioned therein that the workman may not be made to work for more than 180 days so that the concerned employee may not put up a claim for his permanent employment. He, on this basis, contends that it would amount to unfair labour practice. Despite CWP No. 13113 of 2008 -3- of the work available, he was not allowed to do the work, which was needed to be performed with an intention to deprive him of the statutory benefits. He, on this basis, contends that the unfair labour practice has been followed by the Management and, therefore, the workman would be entitled to protection of Section 25-F of the Act as he has completed more than 240 days. On this basis, he prays for upholding the award passed by the Labour Court. I have heard the counsel for the parties and have gone through the records of the case as well as the impugned award. A perusal of the record would show that initially the workman was appointed for a period of three months and thereafter, extension for another three months was granted but thereafter, there is no fixed tenure as far as the workman is concerned. Therefore, the provisions contained in Section 2 (oo) (bb) of the Act would not be attracted. That being the position, the workman having completed more than 240 days, the protection as provided under Section 25-F of the Act would be available to the workman. The admitted position is that the provisions, as contained in Section 25-F of the Act, having not been complied with and termination of the workman being in violation of those provisions, cannot be said to be in accordance with law. Faced with this position, counsel for the petitioner contends that the workman having been appointed on a public post but not in consonance with the statutory Rules governing the service, he would not be entitled to reinstatement in service in the light of 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, CWP No. 13113 of 2008 -4- (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. He further contends that at the most, the workman would be entitled to compensation for the period, he has worked with the Management in the light of the judgment passed by the Hon'ble Supreme Court in the case of Telecom District Manager and others vs. Keshab Dev, 2008 (4) SCT 33 and the Division Bench judgment of this Court in the case of State of Haryana vs. Ishwar Singh and another, 2008 (3) SCT 788. This contention of the counsel for the petitioner does hold good. The records would reveal that an application was moved by the workman to the petitioner for being appointed as a Junior Draftsman suo moto without inviting any applications either through Employment Exchange or through advertisement as per the requirement of the statutory Rules. The records further states that no selection process had been undergone before appointing the workman on the said post. The appointment not being in consonance with the statutory Rules as well as the mandate as contained in Articles 14 and 16 of the Constitution of India, the appointment of the workman cannot be said to be legal. That being the position, the post, on which the workman has been reinstated by way of the impugned award, cannot be sustained and, therefore, deserves to be set aside. In this view of the matter and the judgments passed by the Hon'ble Supreme Court, the workman cannot be reinstated on a public post. However, in the light of the judgment of the Hon'ble Supreme Court in the case of Telecom District Manager and others vs. Keshab Dev, 2008 (4) SCT 33 and the Division Bench judgment of this Court in the case of State of Haryana vs. Ishwar Singh and another, 2008 (3) SCT 788, CWP No. 13113 of 2008 -5- the workman would be entitled to the compensation of Rs. 15,000/- as the workman has put in about 1 ½ years of service with the petitioner. The writ petition is allowed. The impugned award dated 12.09.2007 (Annexure P-16) passed by the Labour Court, Amritsar, vide which the workman has been reinstated on the post of Junior Draftsman with continuity of service and full back wages from the date of demand notice i.e. 11.06.2002 is set aside. However, the workman is held entitled to compensation of Rs. 15,000/- to be paid to him within a period of two months from the date of receipt of a copy of this order. Writ petition stands disposed of accordingly. ( AUGUSTINE GEORGE MASIH ) JUDGE March 25, 2009 pj