High Court Punjab-Haryana High Court

Executive Engineer vs Dharmender & Others on 2 December, 2008

Punjab-Haryana High Court
Executive Engineer vs Dharmender & Others on 2 December, 2008
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 ?

-.-

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.

C.W.P. No.7969 of 2008 -2-

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
C.W.P. No.7969 of 2008 -3-

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