CWP No. 19576 of 2007 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No. 19576 of 2007
Date of Decision : 18.11.2008.
Executive Engineer & another
...... Petitioners
Versus
Sardar Singh & another
......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 ?
-.-
Present:- Ms. Ambika Luthra, AAG Punjab
for the Petitioners.
Mr. R.S. Ahluwalia, Advocate for respondent No.1.
HEMANT GUPTA J.(ORAL)
The Challenge in the present writ petition is to the Award dated
September 8, 2003 (Annexure P-4) and order dated July 16, 2007
(Annexure P-6) whereby, respondent No.1 (hereinafter referred to as
‘Workman’) was ordered to be re-instated with continuity in service with
25% back wages.
It is the case of workman that he was employed as a Beldar on
4.5.1986 and continuously worked till 31.8.1989 when his services were
illegally terminated without any notice, notice pay and retrenchment
compensation. After examining the evidence led by the parties, the learned
Labour Court returned a finding that the delay has been explained by the
CWP No. 19576 of 2007 -2-
workman in raising the industrial dispute after the gap of more than 10
years.
On merits, it was found that workman has worked from 4.5.1986
to 31.8.1989 as the Management has not produced the complete record to
rebut the claim of the workman. The vouchers demanded have not been
produced. Therefore, it was held that the services of the workman have
been terminated by violating the mandatory provisions of Section 25F of the
Industrial Disputes Act, 1947 and that the termination is illegal, null and
void.
The petitioners moved an application before the learned Labour
Court pointing out that in fact, the record produced is in respect of another
Sardara Singh and that the workman has not worked with the Management.
Said application was dismissed by learned Labour Court on July 16, 2007
holding that application was not maintainable as the Labour Court has
become functus officio.
Learned counsel for the petitioners has vehemently argued that
though there was mistaken identity of the workman before the Labour Court
but without examining that question any further, the fact remains that the
workman has been ordered to be re-instated on a public post, the post
against which he was not appointed in terms of recruitment rules and by
inviting applications from 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
CWP No. 19576 of 2007 -3-
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 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. In M.P. Administration’s
case (supra), the Court held to the following effect:-
6. “The question, however, which arises for consideration is as
to whether in a situation of this nature, the learned Single Judge
and consequently the Division Bench of the Delhi High Court
should have directed reinstatement of the respondent with full
back wages. Whereas at one point of time, such a relief used to be
automatically granted, but keeping in view several other factors
and in particular the doctrine of public employment and
involvement of the public money, a change in the said trend is
now found in the recent decisions of this Court. This Court in a
large number of decisions in the matter of grant of relief of the
kind distinguished between a daily wager who does not hold a
post and a permanent employee. It may be that the definition of
“workman” as contained in Section 2(s) of the Act is wide and
takes within its embrace all categories of workmen specified
therein, but the same would not mean that even for the purpose of
grant of relief in an industrial dispute referred for adjudication,
application of constitutional scheme of equality adumbrated under
Articles 14 and 16 of the Constitution of India, in the light of a
decision of a Constitution Bench of this Court in Secy., State of
Karnataka v. Umadevi and other relevant factors pointed out by
the Court in a catena of decisions shall not be taken into
consideration.
CWP No. 19576 of 2007 -4-
7. The nature of appointment, whether there existed any
sanctioned post or whether the officer concerned had any
authority to make appointment are relevant factors.”
The said observations are in the context of engagement of a
workman engaged on temporary basis from time to time. It was held that
the Industrial Court exercises its discretionary jurisdiction under Section
11A of the Act, when it directs the amount of compensation to be paid to the
workman.
In Mahboob Deepak’s case (supra), the Court held to the
following effect:-
9. “Due to some exigency of work, although recruitment on
daily wages or on an ad hoc basis was permissible, but by reason
thereof an employee cannot claim any right to be permanently
absorbed in service or made permanent in absence of any statute
or statutory rules. Merely because an employee has completed
240 days of work in a year preceding the date of retrenchment, the
same would not mean that his services were liable to be
regularised.”
In Ghaziabad Development Authority’s case (supra), the dispute
referred to the Labour Court was regarding termination of daily wagers
appointed on ad hoc basis. It was held to the following effect:-
19. “A statutory authority is obligated to make recruitments
only upon compliance with the equality clause contained in
Articles 14 and 16 of the Constitution of India. Any appointment
in violation of the said contitutional scheme as also the statutory
recruitment rules, if any, would be void. These facts were
required to the kept in mind by the Labour Court before passing
an award of reinstatement.
20. Furthermore, public interest would not be subserved if
after such a long lapse of time, the first respondent is directed to
CWP No. 19576 of 2007 -5-be reinstated in service.”
In view of the aforesaid judgments, we are of the opinion that the
workman, who has worked on daily wages for more than 3 years or so is not
entitled to be reinstated or the back wages.
In view of the above, we allow the present writ petition and the
impugned award dated September 8, 2003 (Annexure P-4), is set aside.
(HEMANT GUPTA)
JUDGE
(NAWAB SINGH)
JUDGE
18.11.2008.
SN/Monika