CWP No. 9454 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 9454 of 2008 Date of decision : 27th May, 2008 Jai Bhagwan ... Petitioner Versus The Presiding Officer, Industrial Tribunal-cum-Labour Court, Hissar and another. ... Respondents CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. V.D.Sharma, Advocate for petitioner. KANWALJIT SINGH AHLUWALIA, J. Jai Bhagwan (workman) has preferred the present writ petition assailing the impugned award dated 15.11.2007 (Annexure P-5), whereby the Labour Court came to the conclusion that no benefit whatsoever, can be awarded to the workman as he was a daily wager on contract basis. Workman has issued a demand notice (Annexure P-2) praying for his reinstatement stating therein that he was employed/ appointed as Chowkidar for protecting the property of HAFED on 01.10.2000. It is further stated that he continued without any break up to 28.12.2000 at Safidon, District Jind. It is further stated that after he was released from Safidon on 28.12.2000, from 15.02.2001 he remained posted at Gohana till 15.05.2001. Thereafter, he was posted at CWP No. 9454 of 2008 2 Madhlauda, where he performed his duties from 01.06.2001 to 28.08.2001. Thereafter, he was posted as Watchman at Pilukhera from 01.09.2001 to 28.11.2001. Place of initial posting at Safidon fall in district Jind. Thereafter, he worked at Gohana in district Sonepat and Madhlauda in district Panipat and the last posting of the petitioner-workman was at Pilukhera under district Jind. Thus workman has stated that he had rendered 298 days service in the last 12 preceding calendar months. Respondent-management has stated in the written statement that petitioner was employed on 89 days basis as daily wager and his contract was in various districts and therefore, there can be no continuity of service. They also stated that even if the days are calculated, they come to 173 days and same being less than 240 days, petitioner- workman is not entitled to any relief. Labour Court held that it is nowhere refuted that petitioner- workman was engaged by the respondent-management on contract basis for 89 days. Labour Court also placed reliance upon Secretary, State of Karnataka and others v. Umadevi and others (2006) 4 SCC 1 to hold that petitioner-workman being a daily wager, is not entitled to relief of reinstatement and it concluded accordingly. We find that the view taken by the Hon'ble Supreme Court in Municipal Council, Samrala v. Raj Kumar (2006) 3 SCC 81 is that unless an employee is appointed as per rules and regulations, his/ her appointment cannot be treated to be consistent with Articles 14 and 16 of the Constitution. Appointment given de hors the rules and regulations is liable to termination and is covered under Section 2(oo) (bb) of the Act and thus, does not amount to retrenchment. Similarly, in Gangadhar CWP No. 9454 of 2008 3 Pillai v. Siemens Limited (2007) 1 SCC 533, Indian Drugs & Pharmaceuticals Ltd. v. Workmen (2007) 1 SCC 408, Reserve Bank of India v. Gopinath Sharma and another (2006) 6 SCC 221 and UP Power Corporation Ltd. and another v. Bijli Mazdoor Sangh and others (2007) 5 SCC 755, it has been held that reinstatement of a workman in public employment will not be consistent with Article 14 unless a workman had been appointed by following rules and regulations. It is apparent that the workman was employed on daily wages and no regular procedure was followed and the constitutional scheme for public employment was not adhered to as name of the petitioner-workman was not requisitioned through employment exchange. Therefore, his entry into the service through the backdoor cannot be permitted. The procedure for fair competition having not been followed, the equal opportunity was not extended to all when petitioner-workman was recruited as daily wager. Therefore, his appointment was in violation of Article 14 and 16 of the Constitution, which grant right of equality to all, in matters of public employment. Therefore, we find no merit in the present writ petition and the same is dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE [ASHUTOSH MOHUNTA] JUDGE May 27, 2008 rps