The Executive Engine... v. Shri Pawan Kumar And...

-.-AUGUSTINE GEORGE MASIH, J. (ORAL).

Through this writ petition award of the Labour Court, Gurdaspur, dated 19.11.2003 (Annexure-P-1) has been challenged wherein the reference was answered in favour of the workman with a direction that the workman be reinstated in service with continuity of service. He was further entitled to 40% back wages from the date of demand notice i.e 21.10.1998

It is submitted by counsel for the petitioner that the petitioner was initially engaged as Pump Operator on daily wage basis on 01.04.1994 and he continued upto 31.05.1994 and thereafter, worked from 01.07.1994 to 31.07.1994 It is the submission of counsel for the petitioner that even if it is held that the petitioner has completed 240 days in a calendar year then also the petitioner could not have been reinstated in service alongwith 40% back wages from the date of demand notice as the petitioner could not be held entitled to the post which a public post and the services were not engaged by complying with the statutory Rules. It is the submission of counsel for the petitioner that statutory rules governing the services of respondent workman has not been complied with and he was engaged on daily wage basis only. He further submits that in the light of the Judgments passed by Hon'ble the Supreme Court in cases reported Ghaziabad Development Authority and another v. Ashok Kumar and another, 2008 (4) S.C.C 261, Mahboob Deepak v. Nagar Panchayat, Gajraula, (2008) 1 S.C.C 575, M.P Administration v. Tribhuwan, (2007) 9 S.C.C 748, and State of M.P and others v. Lalit Kumar Verma, (2007) 1 S.C.C 575, to contend that the post under the State is required to be filled up in terms of the Recruitment Rules and by inviting applications from all eligible candidates. It has been contended that the respondent workman was engaged on daily wages without following the rules and principles of Articles 14 and 16 of the Constitution of India, therefore, even if the workmen has completed 240 days of service, the said workman is not entitled to be reinstated and also for grant of back wages. He submits that the respondent workman in the light of the Judgments of Hon'ble the Supreme Court referred to above, is not entitled to reinstatement against a public post nor he is entitled to any back wages.

None has put in appearance on behalf of respondent No. 1 workman. I have given my thoughtful consideration to the submissions put forth by counsel for the petitioner and with his able assistance gone through the records of the case as well as award dated 19.11.2003 (Annexure-P-1) impugned herein. Perusal of the award would show that the only ground which has been taken for reinstating the respondent workman and for granting him back wages is that Section 25-F of Industrial Disputes Act has not been complied with. In the light of the Judgments of Hon'ble the Supreme Court referred to above, I am of the opinion that the award passed by the Labour Court cannot be sustained. The workman was engaged against a public post on daily wage basis. The said engagement was not in terms of the Recruitment Rules applicable to the post nor was it by giving opportunity to all eligible candidates who applied and considered for the appointment. It cannot, therefore, be said that the principles as laid down under Articles 14 and 16 of the Constitution of India have been complied with. That being so, the workman cannot be ordered to be reinstated.

In view of the above, I am of the opinion that award granting reinstatement and back wages is not sustainable. Consequently, the impugned order dated 19.11.2003 (Annexure-P-1) passed by the Labour Court, Gurdaspur, is set aside.

This writ petition is allowed in above terms.

(AUGUSTINE GEORGE MASIH) JUDGE

January 06, 2009. sjks.