Executive Engineer, Provincial Division, PWD (B&R) Division, Bhiwani v. Parmod Kumar & Anr.

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. 17175 of 2008 CM allowed. Reply on behalf of respondent No.1 is taken on record. Civil Writ Petition No. 5104 of 2008 Present writ petition has been preferred by Executive Engineer, Provincial Division, PWD (B&R) Division, Bhiwani assailing the award dated 22.11.2007 (Annexure P-6) passed by the Labour Court, Rohtak, vide which respondent No.1 Parmod Kumar (hereinafter called, ‘workman’) has been ordered to be reinstated on his previous post with continuity in service and 50 percent back wages. Respondent-workman had served a demand notice (Annexure P-1) stating therein that he was employed in August 1999 as a Chowkidar Civil Writ Petition No.5104 of 2008 (O&M) 2 on daily wages and his services were terminated on 16.05.2000 without assigning any reason.

Neither notice was served upon him nor one month salary in advance was paid to him and nor the retrenchment compensation was paid to him. It has been further averred therein that he has completed 240 days. In pursuance of the demand notice, Government had referred the dispute to the Labour Court to determine the following reference: “Whether termination of services of Sh. Parmod Kumar is justified and if not, to what relief he is entitled to?” Respondent-workman also submitted claim statement (Annexure P-2) before the Labour Court, wherein he stated that he had rendered more than 240 days in preceding 12 calendar months. In response to the claim statement, reply (Annexure P-3) was filed by the management, wherein it was stated that the workman was engaged for construction of new Bus Stand building at Bhiwani and after the construction was complete, his services were no longer required. After the pleadings were concluded, Labour Court framed an issue and evidence was led.

Labour Court came to the conclusion that workman had worked for more than 240 days, therefore, termination of his services was in violation of Section 25 of the Industrial Disputes Act, 1947. We are conscious that respondent-workman was employed on daily wage basis. Admittedly, 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. Civil Writ Petition No.5104 of 2008 (O&M) 3 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. Accordingly, we accept the present writ petition, set aside the impugned award passed by the Labour Court and hold that the workman is not entitled to reinstatement as he was a daily wager. [HEMANT GUPTA] JUDGE [KANWALJIT SINGH AHLUWALIA] JUDGE September 04, 2008.