District Manager vs Workman Prem Bahadur And Another on 2 July, 2008

           IN THE HIGH COURT OF PUNJAB AND HARYANA
                         AT CHANDIGARH

                   Civil Writ Petition No. 16082 of 2007
                      Date of decision: 2nd July, 2008

District Manager, Haryana Agro-Industries Corp. Ltd., Kaithal
and another

                                                                  ... Petitioners

                                    Versus

Workman Prem Bahadur and another
                                                               ... Respondents


CORAM:       HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA
             HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA


Present:     Mr. Pankaj Gupta, Advocate for the petitioners.

             Mr. Gobind Dhanda, Advocate for the respondent No.1.


KANWALJIT SINGH AHLUWALIA, J.

Present writ petition has been preferred by District Manager,

Haryana Agro-Industries Corporation Ltd., Jind Road, Kaithal and the

Managing Director, Haryana Agro-Industrial Corporation Ltd., SCO No.

825-826, Sector 22-A, Chandigarh praying that impugned award passed by

Labour Court, Ambala (Annexure P-1) be quashed, whereby respondent-

workman has been directed to be reinstated in service with continuity of

service and full back wages.

Petitioner-management has stated that respondent-workman

was employed as Security Guard on daily wages on contract basis for

watch and ward of the stocks of food-grains and other assets of the

corporation as per the availability of work at Kaithal. It is further stated that
Civil Writ Petition No. 16082 of 2007 2

when no work was left, services of the respondent-workman as Security

Guard were terminated in the month of November, 2003.

Respondent-workman stated before the Labour Court that he

was employed in year 2001. Thereafter, he continuously worked without

any break upto November, 2003 and his services were wrongly terminated

and while doing so persons junior to him were retained in service and fresh

persons were also employed by the management after the termination of

the respondent-workman. Therefore, the same amounted to violation of

provisions of Section 25-G and H of the Industrial Disputes Act (hereinafter

called the ‘Act’).

The Labour Court returned finding of fact that respondent-

workman had worked for 304 days, therefore, his termination without

paying any compensation amounted to violation of Section 25-F of the Act.

Labour Court further held that petitioner-management has violated the

provisions of Section 25-G and H of the Act as they have not denied the

assertions made by the workman in para 4 and 6 of the claim statement to

this effect. Labour Court concluded that there has been violation of Section

25-F to H, workman is entitled to reinstatement and back wages.

We have heard the counsel for the parties. Mr.Pankaj Gupta,

counsel for the petitioner has relied upon a judgment of Hon’ble Apex Court

in Jaipur Development Authority v. Ramsahai and another, (2006) 11

Supreme Court Cases 684, wherein it has been held as under:

“28. We would, therefore, proceed on the basis that
there had been a violation of Sections 25-G and 25-H of the
Act, but, the same by itself, in our opinion, would not mean
that the Labour Court should have passed an award of
reinstatement with entire back wages. This Court time and
again has held that the jurisdiction under Section 11-A must
be exercised judiciously. The workman must be employed by
Civil Writ Petition No. 16082 of 2007 3

State within the meaning of Article 12 of the Constitution of
India, having regard to the doctrine of public employment. It is
also required to recruit employees in terms of the provisions of
the rules for recruitment framed by it. The respondent had not
regularly served the appellant. The job was not of perennial
nature. There was nothing to show that he, when his services
were terminated any person who was junior to him in the same
category, had been retained. His services were dispensed
with as early as in 1987. It would not be proper to direct his
reinstatement with hack wages. We, therefore, are of the
opinion that interest of justice would be subserved if instead
and in place of reinstatement of his services, a sum of
Rs.75,000 is awarded to the respondent by way of
compensation as has been done by this Court in a number of
its judgments, (See State of Rajasthan v. Ghyan Chand,
(2006) 7 SCC 755).”

Counsel for the petitioner has further placed reliance upon a

Division Bench judgment of this Court rendered in The District Manager,

Haryana Agro-Industries Corporation Ltd. and another v. Workman

Multan Singh and another, CWP No. 13054 of 2006 decided on 28th

August, 2007, wherein it has been held as under:

“It is not in dispute that the respondent-workman was a
daily wager. He had not been taken in service against
sanctioned post in accordance with the statutory provisions or
the rules framed thereunder. The appointment was not in
consonance with Articles 14 and 16 of the Constitution of
India.

The rights of persons, such as the respondent-workman
have been considered by a Division Bench of this Court in Tek
Chand v. The Presiding Officer and others (CWP 18587 of
2004 decided on 20.7.2007) while relying on Municipal
Council, Samrala v. Raj Kumar, (2006) 3 SCC 81 (Paras 8-16)
and Reserve Bank of India v. Gopinath Sharma (2006) 6 SCC
221 (Para 27), and it has been held that even if the workman
Civil Writ Petition No. 16082 of 2007 4

had completed 240 days of service, the nature of employment
being on daily wages, Section 25-F of the Act will not be
attracted. Rather Sub Section (bb) of Section 2(oo) of the Act
will be attracted to the case of a daily wager when employer is
governed by statutory provisions.

In Himanshu Kumar Vidyarthi v. State of Bihar, AIR
1997 SC 3657 (Para 3) while considering the claim of daily
wage employees in public employment who called in question
their termination, it has been held that every department of the
Government cannot be treated to be “industry”. When the
appointments are regulated by the statutory rules, the concept
of “industry” to that extent stands excluded. Once it is found
that such employees are not appointed to the posts in
accordance with the rules but were engaged on the basis of
need of the work, they are employees working on daily wages.
Under these circumstances, their dis-engagement from
service cannot be construed to be retrenchment under the
Industrial Disputes Act. The concept of “retrenchment” cannot
be stretched to such an extent as to cover these employees.

In Gangadhar Pillai v. Siemens Ltd. (2007) 1 SCC 533
(Para 28), the Hon’ble Supreme Court held that on completion
of 240 days of continuous service for a year, the employee
cannot be held to be entitled for regularization of his services
and/ or a permanent status.

In State of M.P. and others v. Lalit Kumar Verma,
(2007) 1 Supreme Court Cases 575 (Paras 12, 13 and 17),
the distinction between irregular appointment and illegal
appointment has been defined. It has been held that in the
event the appointment is made in total disregard of the
constitutional scheme as also the recruitment rules framed by
the employer, which is a State within the meaning of Article 12
of the Constitution of India, the recruitment would be an illegal
one.

In State of M.P. and others v. Yogesh Chandra Dubey
and others, (2006) 8 Supreme Court Cases 67 (Para 9), it has
been held that once a person is appointed without there being
a sanctioned post or notification of vacancies, in disregard to
Civil Writ Petition No. 16082 of 2007 5

statutory rules, regularization cannot follow as it would
tantamount to appointment and would result in back door
appointment which does not have legal sanction.

In M.P.Housing Board and another v. Manoj
Shrivastava, (2006) 2 Supreme Court Cases 702 (Paras 8, 9,
10, 11, 15, 16 and 17), it has been held by the Hon’ble
Supreme Court that a person with a view to obtain status of
“permanent employee” must be employed in terms of statutory
rules. It is one thing to say that a person was appointed on
adhoc basis or as a daily wager but another thing to say that
he was appointed against a sanctioned post lying vacant,
upon following the due procedure prescribed therefore. A daily
wager does not hold the post unless he is appointed in terms
of the Act and rules framed thereunder and therefore, does
not derive any legal right. Such an appointment is clearly
illegal.

In M.P.State Agro Industries Development Corporation
Ltd. and another v. S.C. Pandey, (2006) 2 Supreme Court
Cases 716, after framing the issues in Para 7 thereof, in Paras
17 and 18, it has been held that:-

“(1) when the conditions of service are governed
by two statutes, one relating to selection and
appointment, and the other relating to the terms and
conditions of service, an endeavour should be made to
give effect to both the statutes;

(2) A daily wager does not hold a post as he is
not appointed in terms of the provisions of the Act and
rules framed thereunder and in that view of the matter
he does not derive any legal right;

(3) Only because an employee had been working
for more than 240 days, that by itself would not confer
any legal right upon him to be regularized in service;
and
(4) If an appointment has been made contrary to
the provisions of statute, the same would be void and
the effect thereof would be that no legal right would be
derived by the employees by reason thereof.”

Civil Writ Petition No. 16082 of 2007 6

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.

Accordingly, this petition is allowed and the impugned award is

hereby quashed.

From the orders passed during the pendency of the petition,

we find that the respondent-workman has already received a cheque

amounting to Rs.19,053/- in compliance of provisions of Section 17-B of

the Act, from the date of filing of writ petition i.e. 11.10.2007 till 16.05.2008.

Therefore, we intend to award no compensation to the respondent-

workman. In case, any dues are left under Section 17-B of the Act, the

same shall be paid by the petitioner within 30 days from today.

[KANWALJIT SINGH AHLUWALIA]
JUDGE

[ASHUTOSH MOHUNTA]
JUDGE
July 2, 2008
rps