C.W.P. No.18133 of 2007 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
C.W.P. No.18133 of 2007
Decided on :18-11-2008
Executive Engineer, Construction Division,
Haryana P.W.D. ( B & R), Chd.
....Petitioner
VERSUS
Amrit Lal & others
....Respondents
CORAM:-HON’BLE MR. JUSTICE HEMANT GUPTA.
HON’BLE MR. JUSTICE NAWAB SINGH.
Present:- Mr. D.S. Nalwa, A.A.G., Haryana for the petitioner.
Mr. Baljinder Singh, Advocate for respondent No.1.
HEMANT GUPTA, J
The challenge in the present writ petition is to the Award of the
Labour Court dated 11.06.2007 (Annexure P-1), whereby respondent No.1
(hereinafter referred to as ‘the workman’) was ordered to be reinstated in
service and full back wages along with all the service benefits incidental
thereto, 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 on
1.10.1997 on daily wage basis and continued to work till 31.07.2000. On
01.08.2000, the Management has terminated the services of the workman
without issuance of any notice or notice pay or without payment of any
compensation and thus, such termination in violation of Section 25F of
Industrial Disputes Act, 1947 (for short ‘the Act’) is void.
The learned Labour Court found that the workman has served
C.W.P. No.18133 of 2007 -2-
with Management continously from 1.10.1997 to 31.7.2000 and the
Management has terminated the services of the workman on 01.08.2000
without issuance of any notice or without payment of any compensation and
thus, in violation of Section 25F of the Act. It was thus, held that the
termination is illegal and consequently, the workman was ordered to be
reinstated in service and full back wages along with all the service benefits
incidental thereto.
Learned counsel for the petitioner has relied 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 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
C.W.P. No.18133 of 2007 -3-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.
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
C.W.P. No.18133 of 2007 -4-240 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
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 less than 3 years 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 11.06.2007 (Annexure P-1), is set aside.
(Hemant Gupta)
Judge
18th November 2008. (Nawab Singh)
Monika Judge