C.W.P. No.7969 of 2008 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
C.W.P. No.7969 of 2008
Decided on :02-12-2008
Executive Engineer, Provinicial Division
PWD B& R, Charkhi Dadri
....Petitioner
VERSUS
Dharmender & others
....Respondents
CORAM:-HON’BLE MR. JUSTICE HEMANT GUPTA.
HON’BLE MR. JUSTICE NAWAB SINGH.
1.Whether Reporters of local papers may be allowed to see the judgment ?
2. To be referred to the Reporters or not ?
3.Whether the judgment should be reported in the Digest ?
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Present:- Mr. D.S. Nalwa, A.A.G. Haryana for the petitioner.
None for respondent No.2.
HEMANT GUPTA, J
The challenge in the present writ petition is to the Award of the
Labour Court dated 05.12.2006 (Annexure P-5), whereby respondent No.2
(hereinafter referred to as ‘the workman’) was ordered to be re-instated with
continuity of service and also 50% back wages from the date of demand
notice on account of violation of Section 25-F of Industrial Disputes Act,
1947 (for short ‘the Act’).
It is the case of the workman that he was engaged as a Beldar in
the year 1995. But on 01.10.2001, his services have been terminated
without payment of retrenchment compensation or any notice or notice pay.
It is alleged that the Management has retained juniors and thus, there is
violation of Sections 25-G and 25-H of the Act.
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On behalf of the petitioner-Management, it was pointed out that
the petitioner has worked from June, 1995 on muster rolls for few days. He
worked for three months from July, 2001 to September, 2001 on contract
basis and did not turn up from 1.10.2001. The workman was engaged
against seasonal work. Therefore, the workman is not entitled to be
reinstated.
The learned Labour Court on the basis of statement of WW-3,
returned a finding that the workman was employed eight times, but gap of 1
or 2 days was given. Thus, a finding was returned that the workman has
completed more than 240 days in one calendar year. It was also found that a
junior Sarvar, has been retained, which is violative of Section 25-G of the
Act. Thus, the Labour Court answered the reference in favour of the
workman, granting workman to be reinstated with continuity of service and
50% of back wages.
Learned counsel for the petitioner has vehemently argued that the
workman was a daily wager and even if, he has completed 240 days in one
calendar year, such wokman is not entitled to be reinstated against a public
post when the engagement of the workman was not in terms of the
Recruitment Rules and after giving an opportunity to all eligible candidates.
Reliance is placed on a decision of the Supreme Court in cases reported as
Ghaziabad Development Authority & another Vs. Ashok Kumar &
another, 2008 (4) SCC 261, Mahboob Deepak vs. Nagar Panchayat,
Gajraula, (2008) 1 SCC 575, M.P. Administration Vs. Tribhuwan,
(2007) 9 SCC 748, Utrranchal Forest Development Corpn. Vs. M.C.
Joshi, (2007) 2 SCC (L&S) 813, State of M.P. And others Vs. Lalit
Kumar Verma, (2007) 1 SCC 575, to contend that the post under the State
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are required to be filled up in terms of the Recruitment Rules and by
inviting applications from all eligible candidates. It is contended that the
respondent-workman was engaged on daily wages 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
is not entitled to be reinstated and also for the grant of back wages.
It is also argued that even if juniors have been retained, but
retention of such juniors will not confer any right in favour of the workman
to be reinstated. Reliance is also placed upon the judgment of the Hon’ble
Supreme Court in Jaipur Development Authority vs. Ramsahai and
another, (2006) 11 SCC 684.
On the other hand, learned counsel for the workman submitted
that the workman has been reinstated in terms of the Award of the Labour
Court, therefore, this Court should not interfere against the Award at this
stage.
Having heard learned counsel for the parties, we are of the
opinion that the workman was engaged against a public post on daily wages.
Such engagement was not in terms of the Recruitment Rules applicable to
the post or by giving opportunity to all eligible candidates to apply and to be
considered for appointment. Therefore, the workman cannot be ordered to
be reinstated. Still further, the retention of junior will not confer any right
on the workman to be reinstated as illegality in continuing to engage a daily
wager will only mean perpetuating an illegality. 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.
C.W.P. No.7969 of 2008 -4-
In view of the above, we are of the opinion that the Award
granting reinstatment and back wages to the workman is not sustainable.
Consequently, the impugned award dated 05.12.2006 (Annexure P-5), is set
aside.
Since the workman has worked for sufficient period and also a
junior has been retained, we deem it appropriate to grant compensation
of Rs.40, 000/- to settle equities between the parties.
Consequently, we allow the present writ petition. However, the
petitioner is directed to pay compensation of Rs.40,000/- to the respondent-
workman within a period of four months from the date of receipt of copy of
the order.
(Hemant Gupta)
Judge
2nd December, 2008. (Nawab Singh)
Monika Judge