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2003 DIGILAW 1187 (PNJ)

Head Master, Government High School v. Ajit Singh

2003-08-26

S.S.GREWAL, S.S.NIJJAR

body2003
Judgment S. S. Nijjar, J. 1. The workman was appointed as a waterman in the school on 6.7.1996 by the Headmistress keeping in view the difficulties of the students for providing drinking water. This was a temporary arrangement. The workman was being paid Rs.300.00 p. m. out of the Student Fund. Subsequently, his services were terminated on 27.12.1997 on a regular incumbent having been appointed on the post. The workman raised an industrial dispute. The Labour Court has directed the reinstatement of the workman with continuity of service and 50% back wages. State of Haryana has filed this petition under Article 226/227 of the Constitution of India. It is submitted by Ms. Palika Monga that the entry of the workman into service was by the back door. He was not selected in accordance with law. In fact, no such appointment should have been given by the Headmistress. She pointed out that there were specific instructions issued by the State of Haryana on 3.3.1996 wherein all Sub-Divisional Education Officers were informed not to make appointments of Class IVemployees till further orders. In spite of the aforesaid embargo, respondent-workman was given part-time job. Ms. Monga submits that since the entry of the workman into the service was by back door, the provisions of Sec.25-F of the Industrial Disputes Act, would not be applicable. In support of the aforesaid submission, the learned counsel relied on a Division Bench judgment of this Court in Brij Bhushan V/s. Industrial Tribunal-cum-Labour Court, Panipat (1998-2)119 P. L. R.818. Ms. Monga submits that since the entry of the workman into the service was by back door, the provisions of Sec.25-F of the Industrial Disputes Act, would not be applicable. In support of the aforesaid submission, the learned counsel relied on a Division Bench judgment of this Court in Brij Bhushan V/s. Industrial Tribunal-cum-Labour Court, Panipat (1998-2)119 P. L. R.818. In that case, the Division Bench of this Court has held as follows;- "no doubt, the industrial jurisprudence that has developed in last four decades has so far not recognised any distinction between the workmen employed under a private employer and the workmen employed in government service or the service of the public body covered by the expression "other authorities" used in Article 12 of the Constitution but keeping in view the fact that a good deal of illegal employment market has developed in last over 20 years and that has become a permanent source of corruption in public services as well as frustration among large number of unemployed young persons who continue to wait in the queues of employment exchange but the cake of employment is eaten by less meritorious persons, it is necessary for the Courts to refuse relief of reinstatement to an employee who may have got entry in the public service by unlawful or unfair means. In other words, if the Court finds that the employee (workman) is the beneficiary of the fraudulent system of employment or if it finds that he is a back door appointee, the prayer for reinstatement may be refused even though the termination of the service of such an employee, may have been brought about without compliance of the mandatory provisions contained in Sec.25-F of 25-G. Such an approach will be in tune with the established principle of law that the Courts will not compel the public authorities to act in violation of the provisions of the Constitution or other statues. This approach wilt also be compatible with the duty enjoined upon every superior court to exercise the power of judicial review by upholding the rule of law and its duty to protect the rights of public against usurpation of new form of wealth and property, namely, the public employment by a few who are able to pull strings at appropriate level and islegal benefits of back door entry in public service. " 2. Mr. " 2. Mr. Rathee submitted that the workman cannot be made to suffer for the illegality committed by the Headmistress. Once the workman had completed 240 days, he was entitled to the protection of the Act. At the time of the termination of the services, the workman had put in three years service. He had even been promoted to the post of Peon. Mr. Rathee also pointed out that initially the workman was given the job because his father was due to retire. After the retirement of his father, the workman was continued on duty. We are of the considered opinion that in* view of the ratio of law laid down by the Division Bench in Brij Bhushans case (supra), no benefit of the Act can be given to the respondent-workman. The submissions made by the Mr. Rathee would tend to strengthen the conclusion that the entry of the workman was by back door. He was appointed by the Headmistress only on account of the fact that his father had been an employee of the school. It is by now settled that all appointments on government jobs have to be made in accordance with the statutory rules. The entry of the workman into service was clearly illegal. To uphold the award of reinstatement, would place a premium on the error already committed in granting illegal appointment to the workman. 3. In view of the above, the petition is allowed. The award Annexure P-3 is quashed. Sd/s. S. Grewal, J.