JUDGMENT : Shri Pradeep Kumar Chauhan, learned counsel for the caveator/respondent prayed that the case may be decided finally at the admission stage without counter affidavit. 2. This petition has been filed by the petitioner challenging the award dated 15.10.2011 passed by the Labour Court, Haridwar in Adjudication Case no.33 of 2009, by which the termination of the respondent was declared as illegal. The Labour Court held that the workman is entitled to get the service related benefits after the date of his termination and he shall be treated in service throughout from the date of his termination. The Labour Court directed that the workman shall not be entitled to receive any back wages from the date of his termination upto one day before passing of the impugned award. 3. The submission of the learned counsel for the petitioner is that in the written statement, it was specific case of the petitioner that the Social Forestry Programme started by the Forest Department in the year 1990 for developing saplings, for which some money was given by the Forest Department. For that purpose, some workmen were engaged purely on daily wage basis. The respondent was also engaged and he was paid ` 350/- per month. The payment of wages was being made by the Social Forestry Department and there was no relationship of employer and employee between the petitioner and respondent. It was further submitted in the written statement that in the year 1994, after the closure of programme/project, no work was left for the respondent after June, 1994. It was further submitted in the written statement that respondent was never engaged after closure of the programme and no work was taken from the respondent after 1994. The reference order regarding date of termination order dated 30.09.1997 is bad. However, it was mentioned in the written statement that the respondent had made an application under the Payment of Wages Act for payment of wages from September, 1996 to September, 1997. Same is under consideration. The respondent workman filed rejoinder affidavit in which he denied the facts mentioned in the written statement. It was mentioned by him in the rejoinder affidavit that the petitioner himself was the appointing authority. He also denied the fact that the payment was not made directly from the Forest Department. 4. Same is under consideration. The respondent workman filed rejoinder affidavit in which he denied the facts mentioned in the written statement. It was mentioned by him in the rejoinder affidavit that the petitioner himself was the appointing authority. He also denied the fact that the payment was not made directly from the Forest Department. 4. The submission of the learned counsel for the petitioner is that the Labour Court erred in law in giving award in favour of the respondent by totally ignoring the fact that there was no relationship of employer and employee between the petitioner and respondent. He further submitted that the Labour Court failed to appreciate the fact that the Scheme under which the respondent was engaged was discontinued in the year 1994 and the petitioner was not authorized to keep the respondent in its employment. Learned counsel for the petitioner further submitted that since the petitioner institution is a Government aided institution, all posts are duly sanctioned by the State Government and employment is given against the vacant posts and since there was no post available in the institution against which the respondent could be appointed, therefore, the Labour Court erred in making award in favour of the respondent. Learned counsel for the petitioner also submitted that there is a procedure for making appointment in the institution for which posts are sanctioned by the State Government, thereafter, after approval, posts are advertised in the newspaper and after due selection process appointment is made by the Committee of Management which is subject to the approval of the District Education Officer. He submitted that there was no post available in the institution, therefore, no such procedure was adopted and respondent was kept on daily wage basis under the particular scheme. He prayed that the award dated 15.10.2011 passed by the Labour Court, Haridwar may be set aside. Learned counsel for the petitioner relied upon the judgment of the Hon’ble Supreme Court in the matter of Mahboob Deepak Vs. Nagar Panchayat Gajraula reported in 2008 AIR SCW 223, in which the Hon’ble Supreme Court has held that services of the daily wager should not be regularized and in its place, the workmen should be given adequate monetary compensation. He also relied upon the judgment of the Hon’ble Supreme Court reported in 2007 AIR SCW 7305-Uttaranchal Forest Development Corporation Vs. M.C. Joshi. He also relied upon the judgment of the Hon’ble Supreme Court reported in 2007 AIR SCW 7305-Uttaranchal Forest Development Corporation Vs. M.C. Joshi. He also relied upon the judgment reported in 2010 (1) U.D., 39-National Small Industries Kashipur Vs. The Labour Court, Haldwani and another, in which this Court has held that retrenchment compensation not paid does not mean that the petitioner would be automatically reinstated in service. Something more is required to be found out by the Labour Court, namely, as to what was the status of the workman, whether he was employed in a permanent capacity or in temporary capacity or on daily wages. He also relied upon another judgment of this Court reported in 2012 (1) U.D., 46-State of Uttarakhand & others Vs. Hukum Singh, in which this Court by relying upon the judgment of the Hon’ble Supreme Court observed that a muster roll, who had been appointed through backdoor measures, was not entitled for reinstatement automatically and that the Labour Court is required to consider other factors also. 5. On the other hand, learned counsel for the respondent submitted that the award passed by the Labour Court, Haridwar is a correct award as before terminating services of the respondent, the petitioner did not comply with the provisions of Section 6 (N) of the U.P. Industrial Disputes Act, 1947 and Rule 42 of the U.P. Industrial Disputes Rules, 1957. The respondent was treated as a workman and award was given in favour of the respondent by looking at the record that respondent had worked for 240 days in a calendar year. He further submitted that respondent was continuously in service and award is binding upon the petitioner institution in terms of Rule 28 of the U.P. Industrial Dispute Rules, 1957. Learned counsel for the respondent relied upon paragraph nos.25 & 26 of the judgment reported in 2011 AIR (SC) 2532-Devinder Singh Vs. Muncipal Council, Sanaur. Paragraph nos.25 & 26 of the said judgment are being reproduced below: “25. In furtherance of the aforesaid resolution, the respondent engaged the appellant, who was already in its employment, as a Clerk for a period of six months on contract basis on consolidated salary of Rs. 1,000/- per month. At the end of six months, the respondent passed another resolution dated 30.11.1995 and again employed the appellant for a period of six months from 1.11.1995 to 20.04.1996. 1,000/- per month. At the end of six months, the respondent passed another resolution dated 30.11.1995 and again employed the appellant for a period of six months from 1.11.1995 to 20.04.1996. This exercise was repeated in 1996 and the appellant’s term was extended for six months from 1.05.1996. However, his engagement was discontinued w.e.f. 30.09.1996 without giving any notice or pay in lieu thereof and compensation as per the requirement of clauses (a) and (b) of Section 25-F of the Act. It is true that the engagement of the appellant was not preceded by an advertisement and consideration of the competing claims of other eligible persons but that exercise could not be undertaken by the respondent because of the ban imposed by the State Government. It is surprising that the Division Bench of the High Court did not notice this important facet of the employment of the appellant and decided the writ petition by assuming that his appointment/engagement was contrary to the recruitment rules and Articles 14 and 16 of the Constitution. We may also add that failure of the Director, Local Self Government, Punjab to convey his approval to the resolution of the respondent could not be made a ground for bringing an end to the engagement of the appellant and that too without complying with the mandate of Section 25-F(a)and (b).” “26. The other reason given by the High Court is equally untenable. The appellant could hardly be blamed for the delay, if any, in the adjudication of the dispute by the Labour Court or the writ petition filed by the respondent. The delay of four to five years in the adjudication of disputes by the Labour Court/Industrial Tribunal is a normal phenomenon. If what the High Court has done is held to be justified, gross illegalities committed by the employer in terminating the services of workman will acquire legitimacy in majority of cases. Therefore, we have no hesitation to disapprove the approach adopted by the High Court in dealing with the appellant’s case.” 6. Learned counsel for the respondent also relied upon the paragraph nos.6, 10 & 12 of the judgment of the Hon’ble Supreme Court reported in 2010 (2) SCC 543 -Ramesh Kumar Vs. State of Haryana. Same are being reproduced below: “6. Learned counsel for the respondent also relied upon the paragraph nos.6, 10 & 12 of the judgment of the Hon’ble Supreme Court reported in 2010 (2) SCC 543 -Ramesh Kumar Vs. State of Haryana. Same are being reproduced below: “6. Aggrieved by the said award of the Labour Court, the State of Haryana challenged the same in CWP No. 575 of 2004 before the Punjab and Haryana High Court. By the impugned order dated 23.12.2008, the High Court set aside the award of the Labour Court granting reinstatement and back-wages, consequently allowed the writ petition.” “10. It is not in dispute that the appellant was appointed as a Mali and posted at the residence of the Chief Minister in the year 1991. The materials placed by the appellant before the Labour Court clearly show that he had worked for three years and there was no break during his service tenure. He was issued identity card to work in the residence of the Chief Minister and no reason was given for his termination. It is also his case that there was no show cause notice and no inquiry was conducted. The perusal of the order of the Labour Court clearly shows that one Shri Nasib Singh, junior Engineer, who deposed as MW-1 on behalf of the Department has categorically stated that the workman was engaged by the Department on muster rolls as Mali in December, 1991 and he worked up to 31.01.1993. He also stated that there was no break from December,1991 to January, 1993 during which the workman was engaged. The Labour Court as per the materials placed rightly found that the workman has continuously worked from December 1991 to 31.01.1993. It also found that the workman worked for 240 days with the department within 12 calendar months preceding his date of termination i.e. 31.01.1993. The Labour Court as per the materials placed rightly found that the workman has continuously worked from December 1991 to 31.01.1993. It also found that the workman worked for 240 days with the department within 12 calendar months preceding his date of termination i.e. 31.01.1993. It is useful to refer the definition of “retrenchment” and “workman” in the Act which reads thus: “2 (oo) “retrenchment” means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include….” 2 (s) “workman” means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person…..” 25F. Conditions precedent to retrenchment of workmen. No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until- (a) the workman has been given one month’s notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice; (b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days’ average pay for every completed year of continuous service or any part thereof in excess of six months; and (c) notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette.” It is not in dispute that the appellant is a “workman” as defined under Section 2 (s) and “retrenchment” if any it should be in accordance with Section 25F of the Act. Admittedly, in the case on hand, the workman was not given any notice or pay in lieu notice or retrenchment compensation at the time of his retrenchment. Admittedly, in the case on hand, the workman was not given any notice or pay in lieu notice or retrenchment compensation at the time of his retrenchment. In view of the same, the Labour Court has correctly concluded that his termination is in contravention of the provisions of Section 25F of the Act. Though the Department has relied on a circular, the Labour Court on going through the same rightly concluded that the same is not applicable to the case of the retrenchment.” “12. The perusal of all these details clearly shows that the appellant alone was singled out and discriminated. We have already noted the specific finding of the Labour Court that the appellant had fulfilled 240 days in a calendar year before the order of termination. The appellant has also highlighted that he is the sole bread earner of his family and his family consists of his old mother, wife and two minor sons and a minor daughter. The above-mentioned chart also shows that identical awards passed in the case of Mast Ram, Rajesh, Paramjit and Amarjit was upheld by the High Court and the award in favour of the appellant alone was quashed by the High Court in the second round of litigation. Though, it was contended that the initial appointment of the appellant was contrary to the recruitment rules and constitutional scheme of employment, admittedly, the said objection was not raised by the Department either before the Labour Court or before the High Court at the first instance. It was only for the first time that they raised the said issue before the High Court when the matter was remitted to it that too the same was raised only during the arguments. In such circumstances, the High Court ought not to have interfered with the factual finding rendered by the Labour Court and in view of the different treatment to other similarly placed workmen the Department ought not to have challenged the order of the Labour Court. In addition to the above infirmities, the appellant has also pointed out that one Gurbax Singh who was engaged subsequent to the appellant on casual basis has challenged his termination order, which was quashed by the Labour Court; interestingly the Department did not challenge the award of the Labour Court by filing writ petition. In addition to the above infirmities, the appellant has also pointed out that one Gurbax Singh who was engaged subsequent to the appellant on casual basis has challenged his termination order, which was quashed by the Labour Court; interestingly the Department did not challenge the award of the Labour Court by filing writ petition. It was also highlighted by the appellant that on the basis of the award, Gurbax Singh was not only taken back in service but his service were regularized w.e.f. 01.07.2004, public post cannot be made in contravention of recruitment rules and constitutional scheme of employment. However, in view of the materials placed before the Labour Court and in this Court, we are satisfied that the said principle would not apply in the case on hand. As rightly pointed out, the appellant has not prayed for regularization but only for reinstatement with continuity of service for which he is legally entitled to. It is to be noted in the case of termination of casual employee what is required to be seen is whether a workman has completed 240 days in the preceding 12 months or not. If sufficient materials are shown that workman has completed 240 days then his service cannot be terminated without giving notice or compensation in lieu of it in terms of Section 25F. The High Court failed to appreciate that in the present case appellant has completed 240 days in the preceding 12 months and no notice or compensation in lieu of it was given to him, in such circumstances his termination was illegal. All the decisions relied on by the High Court are not applicable to the case on hand more particularly, in view of the specific factual finding by the Labour Court.” 7. I have considered the submission advanced by the learned counsel for the parties and have perused the papers available on record. 8. The case law supplied by the learned counsel for the respondent does not apply in this case, as it is a fact that respondent was engaged on the request of Forest Department under the Forest Social Forestry Programme. There is nothing on record to show that the respondent was engaged against a sanctioned post in the institution. There is also nothing on record, which could show that the scheme, as mentioned by the respondent, was extended after 1994. There is nothing on record to show that the respondent was engaged against a sanctioned post in the institution. There is also nothing on record, which could show that the scheme, as mentioned by the respondent, was extended after 1994. No employer can be compelled to appoint an employee against no post. The submission of the learned counsel for the respondent that the respondent had worked for 240 days will also not help the respondent, as the engagement of the respondent was not against the sanctioned vacant post. The order of termination will not be hit by Section 6 (N) of the U.P. Industrial Disputes Act, 1947 as non-payment of retrenchment compensation/non-issuance of notice does not mean that workman would be automatically reinstated in service. In the present case, there was no sanctioned post available at the time of engagement of the respondent and also at the time when he was discontinued. Therefore, no direction could be issued to the petitioner to keep the respondent in the institution and pay wages. Considering all these facts, I find that the judgment and award given by the Labour Court is perverse and illegal. 9. In view of the above discussion, the writ petition is allowed. Impugned award dated 15.10.2011 passed by the Labour Court, Haridwar in Case no.33 of 2009 “Ashok Kumar Vs. Raja Mahendra Pratap Prem Vidyalaya Inter College” is quashed. 10. No order as to costs.