C.W.P. No. 7614 of 2010 [ 1 ] IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH C.W.P. No. 7614 of 2010 Date of Decision: July 27,2011 Jagar Ram (Ex-Helper Carpenter) .................. Petitioner Versus Presiding Officer, Labour Court, Jalandhar and another ................................. Respondents Coram: Hon'ble Ms. Justice Ritu Bahri 1.To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? Present: Mr. Vikas Chatrath, Advocate for the petitioner. Mr. R.L.Gupta, Addl. A.G. Punjab. ... RITU BAHRI, J. The petitioner has sought quashing of the award dated 19.5.2009 (Annexure P-10), termination order dated 5.2.1999 (Annexure P-6) being against factual and legal position as the petitioner fulfills the requisite qualification under Punjab Roadways (Workshop) State Services Class-III Rules, 1977 as well as Punjab State (Class-IV) Service Rules, 1963 for the post of Helper (Carpenter). Petitioner is seeking the benefit of regularization C.W.P. No. 7614 of 2010 [ 2 ] with effect from the date when similarly situated persons were regularized in view of the judgment in C.W.P. No. 3387 of 2009 decided on 25.2.2002 (Pardeep Kumar v. State of Punjab and others) (Annexure P-9). Petitioner belongs to Scheduled Caste category and is a handicapped person. He was appointed on daily wage basis against vacant post for reserved category on 10.3.1983. Petitioner was duly qualified to be appointed as Assistant Carpenter as per Rule 7 of Rules,1977. The relevant extract of Rules,1977 is as under:- “Appointing Authority – All appointments to the service shall be made by the authority as specified in column 2 of Appendix 'C' to these rules i.e. General Manager. Appendix 'B' [(See rule 7(ii)] Sr. No. Designation of the post on which person to be appointed Qualification and experience, if any for recruitment by direct appointment and for appointment by transfer Qualifications and experience if any, for promotion 8 Assistant Fitter, Assistant Electrician, Assistant Painter, Assistant Battery Attendant, Assistant Blacksmith, Assistant Carpenter, Assistant Welder, Assistant Radiator Repairers, Assistant Upholster and other similar technical posts. Should possess necessary Technical experience OR Minimum three years practical experience in a firm or Government Workshop. (Preference being given to literate persons.) Experience on the post of Technical staff such as cleaner, helper and other class IV employee for a minimum period of three years.” The petitioner had the requisite experience as he had been working as a Carpenter with effect from 4.2.1977 to 31.10.1980 (Annexure P1). Thus, in view of the 1977 C.W.P. No. 7614 of 2010 [ 3 ] Rules petitioner was duly qualified to be appointed as Assistant Carpenter. His services were terminated on 15.10.1986. On raising an industrial dispute the Labour Court allowed the Reference on 23.2.1993 reinstating the petitioner with full back wages (Annexure P4). Reference No. 52 of 1996 was filed claiming regular pay scale as that of regular employees before the Presiding Officer, Industrial Tribunal. On 17.8.1998 the Presiding Officer vide Award dated 17.8.1998 has disposed of the Reference by observing that the Government had regularized the services of Suchha Singh, Parkash Chand and Malkiat Singh in view of the Instructions of the Punjab Government dated 13.10.1995 and 29.11.1995. The services of the petitioner Shri Jagar Ram Carpenter were not regularized as he did not fulfill the qualifications of that post. He was a daily wage employee and was not entitled for regular pay scale. Since petitioner's claim was not entertained, petitioner was declined the benefit of regularization. The Reference was disposed of against the petitioner. Thereafter, on 5.2.1999 petitioner was retrenched from service on the ground that he was not possessing the requisite qualification of Matric and ITI Diploma. `2679/- was given as compensation to him in compliance of Section 25-F of the Industrial Disputes Act. The retrenchment order was challenged by the petitioner vide Reference No. 75 of 2007. Vide Award dated 19.5.2009 C.W.P. No. 7614 of 2010 [ 4 ] the Reference was dismissed (Annexure P-10). Mr. Vikas Chatrath, counsel for the petitioner, has vehemently argued that the Award is liable to be set aside on the ground that petitioner was duly qualified to be appointed as Assistant Carpenter way back in the year when he was appointed in 1983. As per Rules 1977 and 1963 the petitioner was duly qualified to be appointed as Assistant Carpenter in the year 1983 when his services were retrenched and the Labour Court had reinstated him with full back wages while passing the Award dated 23.2.1993 (Annexure P4). The fact that he had been appointed against the permanent vacancy being handicapped has not been rebutted by the respondent department. Once the petitioner was appointed on a permanent post and he was duly qualified as per the existing Rules of 1977 and 1963, he cannot be denied the benefit of regularization nor he can be retrenched vide order dated 5.2.1999 (Annexure P6) on the ground that he does not possess the qualification of Matric with ITI Diploma. The petitioner is being continuously serving the department since 1983 without any break till the date of his retrenchment in 1999 i.e. for 16 long years. He cannot be retrenched on the basis of eligibility qualifications as provided in the Rules of 1995. He has referred to the order passed by this Court in Pardeep Kumar's case (supra) (Annexure P-9) whereby Pardeep C.W.P. No. 7614 of 2010 [ 5 ] Kumar who was similarly situated as the petitioner was retrenched in the year 2000 after serving 14 years as a Helper with the department on the ground that he did not fulfill the requisite qualification of Matric with ITI Certificate. The respondent in that case had placed reliance on the instructions of 1982. The Rules did not contemplate this qualification and this Court had quashed the order of retrenchment dated 29.2.2000 and petitioner was held entitled to all consequential benefits admissible under the Rules. Mr. Ram Lal Gupta, learned counsel for the State, on the other hand has referred to the order dated 29.11.1995 (Annexure R-2) whereby case of the petitioner for regularization was considered and rejected on the ground that he was not fulfilling the qualification. Petitioner had not completed 10 years of service and there was no regular vacancy of Assistant Carpenter. Apart from not fulfilling the qualifications as per the Government Instructions dated 7.5.1993 the petitioner had not completed 10 years of service upto 31.8.1992 for claiming the benefit of regularization. The candidates who had 10 years of service were regularized. Hence, even though the petitioner's case has been rejected on this ground and not on the ground that he does not have the Certificate of ITI with matriculation, he has referred to the Instructions dated 13.1.1982 whereby C.W.P. No. 7614 of 2010 [ 6 ] guidelines for recruitment of workshop staff for Punjab Roadways were given and it was made mandatory that no Helper without Certificate of ITI with matriculation shall be appointed. These guidelines were in pursuance to earlier instructions issued in 1981. Heard learned counsel for the parties. The undisputed fact is that petitioner does not have the qualification of Matric with ITI Certificate. He was appointed on daily wage basis on 10.3.1983. As per Rule 7 of the 1977 Rules eligibility qualification for Assistant Carpenter was that he should possess necessary technical experience or 3 years practical experience in a firm or Government workshop. Petitioner was appointed on the basis of his Experience Certificate (Annexure P1) which goes to show that he had worked as a Carpenter with effect from 4.2.1977 to 31.10.1980. This Certificate has been issued by one Parkash Wood Works and states that he was expert in his trade. Thus, he was duly qualified as per 1977 Rules to be appointed as Assistant Carpenter. His claim for regular pay scale was declined by the Tribunal on 17.8.1998 as he was a daily wage employee and was not entitled to regular pay scale. During the pendency of that proceedings, three employees have been regularized i.e. Suchha Singh, Parkash Chand and Malkiat Singh. Petitioner was declined the benefit of regularization. He was retrenched on 5.2.1999 from C.W.P. No. 7614 of 2010 [ 7 ] service on the ground that he was not possessing the requisite qualification of Matric with ITI diploma. By this time he had served the department for almost 16 years. As per Section 25-F of the Industrial Disputes Act no workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until- (a) the workman has given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice; (b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay [for every completed year of continuous service] or any part thereof in excess of six months; and (c) notice in the prescribed manner is served on the appropriate Government [or such authority as may be specified by the appropriate Government by notification in the Official Gazette]. He had been retrenched by giving him retrenchment compensation of `2679/-. This amount does not fulfill the requirement of Section 25-F. The notice of retrenchment is liable to be quashed on this ground. C.W.P. No. 7614 of 2010 [ 8 ] On the question that petitioner was not qualiied, it goes without saying that at the time he was appointed in 1983 he was duly qualified as per 1977 Rules and he has given his Experience Certificate (Annexure P1). The Instructions dated 13.1.1982 have been considered by this Court in the case of Pardeep Kumar's case (supra) (Annexure P-9). While considering the case of Pardeep Kumar, this court had an occasion to examine the instructions of 1982 and this Court has held that in the face of statutory rules the instructions will not be applicable. Pardeep Kumar had served the department for more than 14 years and thereafter in the year 2000 he was being retrenched on account of the fact that he did not fulfill the qualification for the post of Helper. In the present case, reliance is being placed on the same instructions issued on 13.1.1982 (Annexure R4). Once the petitioner was appointed in the year 1983 fulfilling all the conditions of 1977 Rules and by accepting the Experience Certificate (Annexure P1) it does not lie in the mouth of respondents to rely on instructions 1982 and retrench the services of the petitioner after he has served right from 1983 till 1999 i.e. almost 16 years on the said ground while regularizing the services of Suchha Singh, Parkash Chand and Malkiat Singh on completion of 10 years in November/December 1995. The petitioner may not have C.W.P. No. 7614 of 2010 [ 9 ] completed 10 years as daily wager in November/December 1995. His claim for regular pay scale was declined by the Tribunal on 17.8.1998. He was retrenched in the year 1999 on the ground that he was not qualified to hold the post, was uncalled for. The writ petition is allowed. Award dated 19.5.2009 (Annexure P-10) is set aside. A direction is given to the respondents to treat the petitioner qualified for the post of Assistant Carpenter and consider his case for regularization in view of the instructions applicable to the petitioner after he has completed 10 years as Daily Wager within a period of 4 months from the date of receipt of a certified copy of this order. Petitioner is held entitled to all consequential benefits. 27.7.2011 ( RITU BAHRI ) Rupi JUDGE