High Court Punjab-Haryana High Court

Executive Engineer vs Hoshiar Singh And Another on 4 September, 2008

Punjab-Haryana High Court
Executive Engineer vs Hoshiar Singh And Another on 4 September, 2008
            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.
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