IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Writ Petition No.5096 of 2008 (O&M)
Date of decision : 4th September, 2008
Executive Engineer, Provincial Division, PWD (B&R) Division, Bhiwani
... Petitioner
Versus
Hoshiar Singh and another
... Respondents
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present : Mr. S.K. Hooda, Senior DAG Haryana for the petitioner.
Mr. Sanjay Kaushal, Advocate for respondent No.1.
KANWALJIT SINGH AHLUWALIA, J.
Civil Misc. No. 17162 of 2008
CM allowed.
Reply on behalf of respondent No.1 is taken on record.
Civil Writ Petition No. 5096 of 2008
Present writ petition has been preferred by Executive
Engineer, Provincial Division, PWD (B&R) Division, Bhiwani (hereinafter
called the ‘management’) against Hoshiar Singh respondent No.1
(hereinafter called the ‘workman’). Petitioner is aggrieved against the
impugned award dated 22.11.2007 (Annexure P-6) passed by learned
Labour Court, Rohtak, whereby respondent-workman has been ordered to
Civil Writ Petition No.5096 of 2008 2
be reinstated on his previous post with continuity of service and 50 per cent
back wages from the date of demand notice.
In the present petition, notice of motion was issued.
Respondent-workman served a demand notice (Annexure P-1) on
17.07.2000, wherein it was stated that he was engaged as Chowkidar by
Executive Engineer, Provincial Division, PWD B&R Branch, Bhiwani on
01.09.1999. Services of the workman were terminated on 10.07.2000. It
has been stated that the workman had worked for more than 240 days in
the last preceding 12 calendar months and by terminating his services
without issuing any notice, petitioner-management has violated provisions
of Section 25-F of the Industrial Disputes Act, 1947. It has been further
stated therein that the principle of ‘last come first go’ was not adhered to
and there is a violation of Section 25-H of the Industrial Disputes Act, 1947
(hereinafter called the ‘Act’).
The matter was referred by the State of Haryana to the Labour
Court. Workman submitted claim statement (Annexure P-2), in which he
reiterated what has been stated in demand notice (Annexure P-1). Written
statement (Annexure P-3) was filed to the claim statement, wherein it was
stated that the workman was engaged on daily wage basis. Hence, no
notice of termination was required. However, a retrenchment compensation
was offered to the workman vide draft amounting to Rs.1500/-, but the
same was not accepted, even though the same was also sent by registered
post.
Learned Labour Court held that compensation was offered
after a period of several months from the date of retrenchment, therefore,
there is a violation of Section 25-F of the Industrial Disputes Act, 1947 and
it further held that neither any notice was served nor pay of the notice
period and not even retrenchment compensation was paid to the workman.
Civil Writ Petition No.5096 of 2008 3
Thus there was violation of Section 25-F of the Industrial Disputes Act,
1947.
The workman could not be reinstated in view of judgment of
the Hon’ble Supreme Court in State of Karnataka and others v. Umadevi
and others (2006) 4 SCC 1.
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 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.
In view of nature of appointment of the respondent-workman,
as noticed hereinabove, we find that the respondent-workman cannot be
directed to be reinstated. No such person can be taken in service or his
services regularized when public employment is involved.
Learned counsel for the respondent-workman has stated that
as per the finding of the Labour Court, amount of retrenchment was not
paid at the time of retrenchment and if subsequently the amount is paid,
Civil Writ Petition No.5096 of 2008 4
violation of Section 25-F of the Act cannot be cured. We are afraid, this
contention of the respondent-workman also cannot be accepted.
In Hoshiarpur Central Cooperative Bank Ltd. v. Presiding
Officer, Labour Court and others, 2005(1) Recent Service Judgments
222, a judgment of this Court, it was held that delay in payment of
compensation cannot be considered as violation of Section 25-F of the Act.
A similar view has also been taken by Hon’ble Apex Court in Parmod Jha
and others v. State of Bihar, AIR 2003 Supreme Court 1872. Therefore,
on this count also, reasoning given by the Labour Court cannot be
sustained.
Consequently, we accept the present writ petition, set aside
the impugned award and hold that respondent-workman is not entitled to
any relief as granted by the Labour Court vide impugned award (Annexure
P-6).
[HEMANT GUPTA] [KANWALJIT SINGH AHLUWALIA]
JUDGE JUDGE
September 04, 2008.
rps