C.W.P.No.1560 of 2009 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
C.W.P.No.1560 of 2009
Date of Decision:- 10.03.2009
The Shivalik Development Agency, Ambala ....Petitioner(s)
vs.
Presiding Officer and another ....Respondent(s)
***
CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH
***
Present:- Mr.R.K.Malik, Sr. Advocate with
Mr.Vishal Malik, Advocate for the petitioner.
Mr.C.M.Chopra, Advocate for the respondent.
***
AUGUSTINE GEORGE MASIH, J. (Oral)
In the present writ petition, challenge is to award dated
29.9.2008 (Annexure P-3) passed by the Labour Court, Ambala vide which
the reference has been answered in favour of the workman holding her
entitled to reinstatement in service along with all consequential service
benefits including continuity of service and full back-wages.
Counsel for the petitioner contends that the workman cannot be
put back in service as it is a public appointment and the appointment was
not made in accordance with the Statutory Rules governing the service.
He further contends that in any case, the appointment of the workman was
on 89 days’ basis for a specified term on daily wages at D.C.
rates with intermittent breaks and on the basis of the agreement entered into
by the parties. He contends that as per the provisions contained under
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Section 2 (oo) (bb) of the Industrial Disputes Act, 1947 (hereinafter referred
to as the Act), which is an exception to the term “retrenchment”. It would
not be a retrenchment and, therefore, non-compliance of Section 25-F of the
Act would not confer any right upon the workman. That being so, the
award passed by the Labour Court cannot be sustained. In support of his
contention, he has relied upon the judgments of the Hon’ble Supreme Court
in the cases of Ghaziabad 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, Uttranchal Forest Development Corpn.
vs. M.C.Joshi, (2007) 2 SCC (L&S) 813, State of M.P. and others vs.
Lalit Kumar Verma, (2007) SCC 575, to contend that the posts 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 and, therefore,
even if the workman has completed 240 days of service, she is not entitled
to be reinstated and also for the grant of back wages.
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, counsel for the respondent contends that the
contention of the counsel for the petitioner that the appointment of the
workman was not in consonance with the statutory rules, is not correct. The
appointment of the workman was made through the Employment Exchange
on a sanctioned vacant post of a Clerk. She continued to work on the said
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post from 15.9.1999 to 5.12.2002. This period included 12 extensions of 89
days’ basis which actually shows that there was work available with the
respondents and her services have been terminated just to deprive her of
the statutory rules as contained under the Act. He contends that since it is
not in dispute that the workman had completed more than 240 days in the 12
preceding months from the date of her termination and it is also not in
dispute that no compensation, notice or enquiry was held before such
termination, the provisions of Section 25-F of the Act have not been
blatantly violated and the workman has been held entitled to the relief by
the Labour Court. The award passed by the Labour Court is, thus, in
accordance with law and does not call for any interference by this Court.
In response to this, learned counsel for the petitioner states that
it is an admitted position that the post is a public post which needs to be
filled up as per the statutory rules. It is also an admitted position that the
appointment was on daily wage basis and not on regular basis; although the
post may be a post which was available but was not filled on regular basis.
Therefore, the appointment cannot be said to be in accordance with the
Statute. He further contends that Articles 14 and 16 of the Constitution of
India which provides for filling up of the post by inviting applications and
giving chance to all who participate in the selection, have not been
complied with and, therefore, the workman would not be entitled to
reinstatement in service. Counsel for the petitioner further submits that at
the most the respondent-workman would be entitled to compensation for the
period she has worked with the petitioner but she cannot be reinstated in
service in the light of the judgment of the Hon’ble Supreme Court in the
case of District Telecom Manager and others vs. Keshab Dev, 2008 (4)
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S.C.T.33 and a Division Bench judgment of this Court in the case of State
of Haryana vs. Ishwar Singh and another, 2008 (3) S.C.T. 788. This
Court has held that a daily wage employee, even in case there is non-
compliance of the Act and there is violation of Sections 2 (oo) (bb), 25-F,
25-G and 25-H, is not entitled to reinstatement on a public post but would
be entitled to compensation. In the said judgment also, this Court has
granted compensation to the workman.
I have heard learned counsel for the parties and have gone
through the records of the case. The public post on which the workman has
been reinstated is required to be filled up by following the principles of
Articles 14 and 16 as has been laid out thereunder. The judgments which
have been relied upon by the counsel for the petitioner emphasize and point
towards the mandate of the Constitution which is attached while filling up
the post on falling within the domain of public post.
In view of this situation and the legal position as settled by the
Hon’ble Supreme Court, the award passed by the Labour Court cannot be
sustained and, therefore, deserves to be set aside. Ordered accordingly.
However, in the light of the admitted position that the workman
has completed more than 240 days in the 12 preceding months from the date
of her termination, she would be entitled to compensation in lieu of
reinstatement in service.
In view of the judgments passed by the Hon’ble Supreme Court,
in Keshab Dev’s case (supra) and the Division Bench of this Court in
Ishwar Singh’s case (supra), the award dated 29.9.2008 (Annexure P-3)
passed by the Industrial Tribunal-cum-Labour Court, Ambala is hereby set
aside. The workman having worked with the petitioner from 15.9.1999 to
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5.12.2002 i.e. about three and a half years, is entitled to Rs.35,000/- as
compensation to settle the equities between the parties in lieu of
reinstatement.
This petition is disposed of with a direction to the petitioner to
make the payment of compensation of Rs.35,000/- to the respondent-
workman within a period of two months from the date of receipt of copy of
this order.
March 10, 2009 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE Whether referred to Reporters ________ Yes/No
