Civil Writ Petition No.5455 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.5455 of 2008 Date of decision: April 02, 2008 Raj Kumar … Petitioner Versus State of Haryana and others … Respondents CORAM: HON’BLE MR. JUSTICE ASHUTOSH MOHUNTA HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. S.M. Sharma, Advocate for the petitioner. KANWALJIT SINGH AHLUWALIA , J. Petitioner, Raj Kumar claimed that he was appointed as Raj Mistri (Mason) with the respondent management with effect from January 2000 and his services were unlawfully terminated on 02.12.2003 without compliance of provisions of Section 25-F of the Industrial Disputes Act, even though he has worked for 240 days in 12 preceding months. It was further stated that there was also violation of Section 25-G as principle of “last come first go” was not adhered to by the respondent management. The respondent management controverted this assertion of the workman and stated that he was never employed/ engaged by the respondent-management and there was no relationship of master and servant between the parties, and since he was never appointed by the respondent management, therefore neither Section 25-F qua petitioner- Civil Writ Petition No.5455 of 2008 2 workman is attracted, nor there was any necessity to follow the principle of “last come first go”. Learned counsel appearing for the petitioner has stated that respondent-management ought to have followed the provisions of Industrial Disputes Act and to prove that workman has worked for 240 days, onus was partly upon the petitioner and partly upon the respondents and learned labour Court had not examined any contractor to prove that the workman was ever employed with the contractor and therefore, respondent-management failed to establish on record that the workman was not employee of the respondent-department. The learned labour Court, after examination of the evidence, came to the conclusion that the petitioner-workman worked as a Mason through contractual agency and he has not completed 240 days either in the last 12 preceding calendar months or in any other calendar year prior thereto. Learned labour Court also relied upon the law laid down in the recent judgments of Hon’ble Apex Court that a daily wager, who has been engaged without requisitioning the name through employment exchange or after issuance of advertisement, cannot be allowed in public employment through backdoor entry. Relying upon catena of judgments of this Court and Hon’ble Apex Court, the learned labour Court has held as under: “16. It is also pertinent to mention here that it is not in dispute in the present case that the respondents- management in this case is a “State” within the meaning of Article 12 of the Constitution of India and that the petitioner-workman was not appointed on a regular or permanent basis i.e. after the issuance o an advertisement and following the other provisions with respect to conduct of written test/ or interview as should be the case of public employment. Therefore, in view of the ratio of law laid down in a number of Civil Writ Petition No.5455 of 2008 3 citations i.e. Municipal Council, Smrala V. Raj Kumar, (2006) 3 SCC 81, Reserve Bank of India Vs. Gopinath Sharma (2006) 6 SCC 221, SM Nilajkar and others Vs. Telecome District Manager, Karnataka, (2003) 4 SCC 27, and Tek Chand V. The Presiding Officer and others CWP No. 18587 of 2004 decided on 20.7.07 by the Hon’ble High Court of Punjab and Haryana, wherein, it was observed that the termination of the services of the Daily Wager will not amount to retrenchment and will be covered by the exception (bb) to the Section (oo) of the Industrial Disputes Act, the petitioner just cannot be held entitled to any relief what-so-ever. 17. It was further observed by the Hon’ble Supreme Court of India in Himanshu Kumar Vidyarthi Vs. State of Bihar, AIR 1997 Supreme Court 3657 and Gangadhar Pillai Vs. Siemens Limited, 2007 1 SCC 533 that an employee employed as a daily wager cannot be reinstated/ regularized in public employment which is governed by the rules and regulations. The ratio of law laid down in the citations aforesaid is fully applicable in the instant case as admittedly in the present case, it is not the case of the petitioner that while making an offer of appointment to him, the management had complied with the requirements as laid down in the statue or statutory rules or even otherwise the same was, in any way, in consonance or in conformity with the statutory rules and the instructions or the policy laid down by the Government of Haryana. Therefore, in these circumstances, it has to be held that the present case covered by the second part of the exception (bb) to the Section 2(oo) of the Industrial Disputes Act and as such the provisions of Section 25- F to H of the ID Act in the instant case were not attracted. Resultantly, the petitioner just cannot be held entitled to any relief even on this single score also. Accordingly, this issue is hereby decided in Civil Writ Petition No.5455 of 2008 4 favour of the respondents-management and against the petitioner-workman.” After perusing the award, we find no infirmity in the same and the same is hereby affirmed and the present writ petition is dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE [ASHUTOSH MOHUNTA] JUDGE April 02, 2008. rps