High Court Punjab-Haryana High Court

The Divisional Forest Officer … vs The Presiding Officer on 3 March, 2009

Punjab-Haryana High Court
The Divisional Forest Officer … vs The Presiding Officer on 3 March, 2009
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH



                                             CWP No. 16123 of 2008

                                             Date of decision: 03.03.2009


The Divisional Forest Officer (Territorial), Bhiwani


                                                       .....PETITIONER

                   VERSUS



The Presiding Officer, Industrial Tribunal-cum-Labour Court, Rohtak and
another


                                                       ..... RESPONDENTS


CORAM:       HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH



Present:     Mr. D.S.Nalwa, Addl. A.G. Haryana,
             for the petitioner.

             Mr. Deepak Sonak, Advocate,
             for respondent No. 2.

                   ***


AUGUSTINE GEORGE MASIH, J. (ORAL)

In the present writ petition, the challenge is to the award dated

10.07.2006 (Annexure P-5) passed by the Industrial Tribunal-cum-Labour

Court, Rohtak, wherein the reference has been answered in favour of the

workman holding him entitled to reinstatement on his previous post with

continuity of service and 50% back wages from the date of demand notice

i.e. 03.11.1998.

Counsel for the petitioner contends that the finding recorded
CWP No. 16123 of 2008 -2-

by the Labour Court, with regard to the violation of the provisions of Section

25-G of the Industrial Disputes Act, cannot be sustained for the simple

reason that the Labour Court has failed to give a finding with regard to the

fact that Pat Ram and Chotte, who are junior to the workman, belong to

the same category of the employee, to which the workman belongs. He

further contends that merely because some junior people were retained by

the Management does not show that provisions of Section 25-G of the

Industrial Disputes Act, have been violated.

On the other hand, counsel for respondent No. 2-workman

states that this was not a stand of the Management before the Labour

Court nor was this an assertion at the time of arguments before the Labour

Court. Since this ground was not raised, at this stage it cannot be allowed

to be contended. Has this stand been taken before the appropriate Forum.

The Labour Court would have accordingly proceeded to decide the

reference.

The contention, as raised by respondent No. 2-workman, has

force and deserves to be accepted. Perusal of the award does not

indicate that such a stand was ever taken by the petitioner-Management

before the Labour Court. The finding, which has been recorded, is

categorically clear that Pat Ram and Chotte, who were junior to the

workman, were retained by the petitioner. That being so, provisions of

Section 25-G of the Industrial Disputes Act, stood violated by the

Management while terminating the services of the workman. In view of this

fact, no illegallity can be said to have been found in the findings recorded

by the Labour Court with regard to violation of provisions of Section 25-G of

the Industrial Disputes Act.

Faced with this situation, counsel for the petitioner contends

that since it is a public post and even if he has completed 240 days in one

calendar year from the date preceding his date of termination, the said
CWP No. 16123 of 2008 -3-

workman is not entitled to be reinstated against a public post when the

engagement of the workman was not in accordance with the Recruitment

Rules and further after giving an opportunity to all eligible candidates. This

would amount to violation of Articles 14 and 16 of the Constitution of India

and the appointment being not in consonance with the provisions of

Constitution, the award is not sustainable. Reliance has been placed on

the decisions of the Hon’ble Supreme Court in the cases reported as

Ghazibad Development Authority and another vs. Ashok Kumar and

another, 2008 (4) SCC 261, Mahboob Deepak vs. Nagar Panchayat,

Gajraula, (2008) 1 SCC 575, M.P. Administration vs. Tribhuwan, (2007)

9 SCC 748 and State of M.P. and others vs. Lalit Kumar Verma, (2007)

1 SCC 575 to contend that the posts under the State are required to be

filled up in terms of the statutory Rules governing the service by inviting

applications from all eligible candidates and thereafter, on consideration of

the same, the appointment can be said to be a valid appointment. It has

been contended that the respondent-workman was engaged on a

temporary post 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 was not entitled to be reinstated and

also for the grant of back wages. He further submits that even if persons

junior to him have been retained, the retention of such juniors will not

confer any right in favour of the workman to be reinstated. For making this

submission, reliance has been placed by a judgment of the Hon’ble

Supreme Court in Jaipur Development Authority vs. Ramsahai and

another, (2006) 11 SCC 684.

I have heard the counsel for the parties and have gone

through the records of the case as well as the impugned award dated

10.07.2006 (Annexure P-5) passed by the Presiding Officer, Industrial
CWP No. 16123 of 2008 -4-

Tribunal-cum-Labour Court, Rohtak. I am of the opinion that the workman

was engaged against a public post. Such engagement was not in terms of

the statutory Recruitment Rules applicable to the post which would have

required 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 juniors 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.

In view of the above, the award granting reinstatement and

50% back wages to the workman-respondent No. 2 is not sustainable.

Consequently, the impugned award dated 10.07.2006 (Annexure P-5), is

set aside. As the workman has worked for a period of more than seven

years, I deem it appropriate to grant compensation amounting to Rs.

70,000/- to settle equities between the parties in the light of the judgment

passed by the Hon’ble Supreme Court in Telecom District Manager and

others vs. Keshab Deb, 2008 (4) SCT 33.

This writ petition is allowed in above terms. The petitioner is

directed to pay compensation of Rs. 70,000/- to the respondent No. 2-

workman within a period of two months from the date of receipt of a copy of

this order.

Counsel for respondent No. 2-workman states that the

workman stands reinstated in service but in the light of the order passed by

this Court, his claim would no more survive. In any case, he contends that

he would move a representation to the petitioner, who may consider the

same sympathetically and pass an appropriate order.
CWP No. 16123 of 2008 -5-

A direction is issued to the petitioner that in case, a

representation is made by the workman-respondent No. 2, the same may

be considered sympathetically.

( AUGUSTINE GEORGE MASIH )
JUDGE
March 03, 2009
pj