IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Writ Petition No.14900 of 2008
Date of decision : 25th August, 2008
Mewa Ram
... Petitioner
Versus
Presiding Officer Labour Court and another
... Respondents
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present : Mr. Ramesh Goyat, Advocate for
Mr. Sudershan Goel, Advocate for the petitioner.
KANWALJIT SINGH AHLUWALIA, J.
Present writ petition has been filed by Mewa Ram-petitioner
(hereinafter called the ‘workman’) aggrieved against the award dated 26th
February, 2008 (Annexure P-8) passed by the Labour Court, whereby his
prayer for reinstatement with continuity in service and full back wages, has
been declined by the Labour Court.
Briefly stated, workman had served demand notice (Annexure
P-1) on 7th November, 2000, wherein he stated that he was appointed as
labourer in the year 1985 on daily wage basis and he continued to work till
his services were terminated on 26th January, 1995. It has been stated that
services of the petitioner had been terminated without complying with the
mandatory provisions of Section 25-F of the Industrial Disputes Act, 1947
(hereinafter called the ‘Act’). Thereafter, the matter was referred to the
CWP 14900 of 2008 2
Labour Court by the Government of Haryana and following reference was
made:
“Whether the termination of services of workman Shri
Mewa Ram is legal and justified or not? If not so, to what relief
he is entitled?”
Thereafter, claim statement (Annexure P-2) was filed by the
workman reiterating what was stated in his demand notice. It was further
averred that respondent No.2 – management has also not followed the
provisions of Section 25 (G and H) of the Act. Written statement (Annexure
P-3) was filed by the respondent-management, wherein claims made by
the workman were denied. It was stated therein that sixteen labourers
including the petitioner had preferred CWP No. 6743 of 1992 against the
State of Haryana, which has been dismissed and thereafter petitioners
instituted a civil suit, which was also dismissed as withdrawn. It was further
stated that the petitioner-workman was engaged as labourer, as and when
respondent-management required to remove grass and dry grass in the
school on muster roll as per local rates fixed by the Deputy Commissioner,
Sonepat and it was stated that petitioner was a labourer on daily wage
basis.
We have heard counsel for the petitioner. He has stated that a
similarly situated workman Mohammad was ordered to be reinstated by the
Labour Court and a writ petition preferred by the management against the
award, whereby Mohammad was reinstated, was dismissed. Therefore,
petitioner be also reinstated on parity and also on the ground that
Mohammad was junior to the petitioner.
We are of the view that petitioner is not entitled to the relief,
which has been granted to Mohammad. Following finding returned by the
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Labour Court demolish the argument raised by the counsel for the
petitioner:
“15. However, these contentions are devoid of force
because though MW-1 Sh. N.K.Bakshi has deposed that the
above named Mohammad was working as per the Award of
the Court and has also admitted that the Civil Writ Petition, as
preferred against the aforesaid award, was also dismissed but
during his cross-examination itself, he has specifically and
categorically denied the suggestion that the case of aforesaid
Mohammad was on the similar footing to the case of the
workman. Moreover, the workman has even failed to produce
the copy of the award as passed by the Labour Court and the
copy of the Judgment as passed by the Hon’ble High Court in
the Civil Writ Petition, in favour of Mohammad from where it
could be ascertained as to on what grounds he had
succeeded in proving his case in both the above said Courts
and as to whether those grounds were available to the
workman or not. Again, though the afore named MW-1 has
stated during his cross-examination that the afore named
Jagdish, Satbir and Murari are still working but he has also
deposed that they are working against the sanctioned posts
and has also categorically deposed in para No.1 of his
affidavit Ex. MW-2 that there is no sanctioned post of
Labourer/ Mazdoor in the school establishment. From these
depositions, it is crystal clear that the afore-named workers
are not working on the post of Labourers and are not given
appointment against sanctioned posts on the basis of length of
their service as daily wagers and moreover, MW-1 has also
specifically deposed during his cross-examination that they
have neither appointed any labourer nor have regularized the
services of any labourer. The workman has also not been able
to prove that he was senior to the afore named Mohammad,
Jagdish, Satbir, Murari etc. and that Jagdish, Satbir and
Murari were appointed in violation of the prescribed rules and
CWP 14900 of 2008 4regulations for such like appointments. Then, while deposing
as WW-1, he has also failed to even disclose the names of
persons who were allegedly given new appointment after the
termination of his services.”
As per his own claim, workman was verbally appointed on
daily wage basis. His appointment into public employment was not in
pursuance of any advertisement issued, affording opportunity to other
persons, nor his services were requisitioned through employment
exchange. No equal opportunity was afforded to similarly situated persons.
In the present case, workman was not appointed as per rules and
regulations but was a contractual employee on daily wage basis and
termination of his services did not amount to retrenchment.
He 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
CWP 14900 of 2008 5
consistent with Article 14 unless a workman had been appointed by
following rules and regulations.
In view of the above, we find no merit in the present writ
petition and the same is liable to be dismissed. Accordingly, we uphold the
impugned award (Annexure P-8) of the Labour Court and no interference
by this Court is called for.
[HEMANT GUPTA] [KANWALJIT SINGH AHLUWALIA]
JUDGE JUDGE
August 25, 2008.
rps