High Court Punjab-Haryana High Court

Municipal Council vs Presiding Officer on 19 November, 2009

Punjab-Haryana High Court
Municipal Council vs Presiding Officer on 19 November, 2009
  IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                    CHANDIGARH


                                Civil Writ Petition No.9141 of 2001
                                Date of decision: 19.11.2009


Municipal Council, Dina Nagar                              ....Petitioner


                              versus


Presiding Officer, Labour Court, Gurdaspur and another.
                                                          ...Respondents


II.    Civil Writ Petition No.9145 of 2001


Municipal Council, Dina Nagar                              ....Petitioner
                              versus
Presiding Officer, Labour Court, Gurdaspur and another.
                                                          ...Respondents


III.   Civil Writ Petition No.9146 of 2001

Municipal Council, Dina Nagar                              ....Petitioner
                              versus
Presiding Officer, Labour Court, Gurdaspur and another.
                                                          ...Respondents

IV.    Civil Writ Petition No.9162 of 2001

Municipal Council, Dina Nagar                              ....Petitioner
                              versus
Presiding Officer, Labour Court, Gurdaspur and another.
                                                          ...Respondents

V.     Civil Writ Petition No.9181 of 2001

Municipal Council, Dina Nagar                              ....Petitioner
                              versus
Presiding Officer, Labour Court, Gurdaspur and another.
                                                          ...Respondents
 Civil Writ Petition No.9141 of 2001                              -2-

VI.   Civil Writ Petition No.9182 of 2001

Municipal Council, Dina Nagar                               ....Petitioner
                              versus
Presiding Officer, Labour Court, Gurdaspur and another.
                                                          ...Respondents

VII. Civil Writ Petition No.9385 of 2001

Municipal Council, Dina Nagar                               ....Petitioner
                              versus
Presiding Officer, Labour Court, Gurdaspur and another.
                                                          ...Respondents

VIII. Civil Writ Petition No.10263 of 2003

Deepak Kumar and others                                     ....Petitioners
                              versus
Presiding Officer, Labour Court, Gurdaspur and others.
                                                          ...Respondents


IX.   Civil Writ Petition No.10502 of 2003

Hardeep Sharma                                              ....Petitioner
                              versus
Presiding Officer, Labour Court, Gurdaspur and others.
                                                          ...Respondents



CORAM: HON'BLE MR. JUSTICE K. KANNAN
                              ----


Present:    Mr. H.S.Bakshi, Advocate, for the petitioner.

            Mr. K.L.Arora, Advocate, with Ms.Priya Narayan,
            Advocate (in C.W.P. No.10263 and 10502 of 2003)
            for respondent No.2.

            Mr. Mandeep Bedi, Senior Advocate, with Mr. Gagneshwal
            Walia, Advocate, for the respondent (in CWP Nos.9141,
            9145, 9146, 9162, 9181, 9182 and 9385 of 2001).
                              ----
 Civil Writ Petition No.9141 of 2001                            -3-


1.    Whether reporters of local papers may be allowed to see the
      judgment ?
2.    To be referred to the reporters or not ?
3.    Whether the judgment should be reported in the digest ?
                                ----

K.Kannan, J.

1. The above batch of cases address the same issue relating to

whether the workmen, who had been working in the office of the

Municipal Council, Dina Nagar, had been merely on contracts for

specific periods so that when the terminations were effected well past

alleged respective the contract periods, the workmen were entitled to

treat such termination as constituting illegal retrenchment from service in

violation of Section 25-F of the Industrial Disputes Act and claim

reinstatements. The batch of cases again makes a curious mix in that

emanating from the same set of facts some persons were directed to be

reinstated with back wages while in respect of two workmen, the

respective orders of termination of service had been upheld.

2. The learned counsel appearing for the Municipal Council

took me through various communications that had come about between

the Executive Officer of the Municipal Council and the Government

represented through the Regional Deputy Director which, according to

him, showed that the Government was merely approving the appointment

of octroi Clerks on contract basis and that the sanction had been granted

by the Government only for 4 posts purely on contract basis but the

Executive Officer had exceeded his jurisdiction by appointing several

persons without going through any form of selection process. The

learned counsel stated that the relevant rules in Punjab Municipal Service
Civil Writ Petition No.9141 of 2001 -4-

Recruitment and Conditions of Service Rules, 1975 provided that the

recruitment was to be made only through a Selection Committee, but all

the appointments had been made by a mere resolution of the Municipal

Council. The appointments, according to the learned counsel, was also

illegal and by resolution No.50, dated 26.03.1997, the matter was placed

before the Municipal Council. The resolution itself states those

employed on contract basis would have to be only through Employment

Exchange and after the expiry of the contract period, it would become

essential to enter into agreement with the employees so that the matter

was to be presented before the Municipal Council for his consideration

and decision. By virtue of the resolution ultimately it was unanimously

decided that the Clerks and Peons employed on contract basis should be

relieved after 31.03.1997.

3. The learned counsel appearing for the Municipal Council

further argued that the award failed to properly appreciate the nature of

engagement in that the file which had been produced containing 40

pages and exhibited as M-2 had not been properly examined for they

contained reference to the fact that the workmen had been engaged only

on contract basis. According to him, the observation of the Labour Court

that there had been no proof adduced by the management that they all

had been employed only on contractual basis for a specified period, was

clearly wrong, in that it did not properly acquainted itself about the

documents filed before the Court.

4. The learned counsel appearing for the workmen Shri

H.S.Bakshi in the batch of writ petitions that directed reinstatement and
Civil Writ Petition No.9141 of 2001 -5-

Shri Arora in two cases that found the workmen were not entitled to the

relief, contended that the Labour Court had itself discussed the nature of

documents that had been filed in M-2 and that none of the documents

which had been referred to and filed before this Court in the writ petition

had been submitted before the Labour Court. Mr. Bakshi took me

through the award that referred to Ex.M-2 as containing circulars dated

19.03.1997 and 21.03.1997; the resolution No.50, dated 26.03.1997 and

the retrenchment notices to all the workmen along with the demand draft

receipts through registered envelopes; copies of the budget for the year

1997-98 etc. and contended that the so-called contractual employment,

was not correct. The learned counsel Mr. Bakshi contended that all the

workmen had admittedly put in more than 240 days of service and the

termination purported to have been effected on 31.03.1997 without

simultaneously paying the compensation stipulated under Section 25-F

did not amount to compliance of the statutory mandate. Admittedly the

dispatch of the compensation for the notice period and for the number of

years of service that the respective workmen had put in, had been

dispatched by the management only subsequently on 02.04.1997 and the

payment that did not accompany the order of termination was not valid in

law.

5. Shri K.L.Arora appearing for some workmen also stated that

the Punjab Municipal Services (Recruitment and Conditions of Services)

Rules, 1975 itself did not apply. Section 39 of the Punjab Municipal

Act, 1911 reads as follows:-

“(1) Subject to the provisions of this Act and the rules and
bye-laws made thereunder, a committee may, and if so
Civil Writ Petition No.9141 of 2001 -6-

required by the State Government shall, employ other
officers and servants, and may assign to such officers and
servants such remuneration as it may think fit, and may
suspend, remove, dismiss, or otherwise punish any officer or
servant so appointed.

Provided that no person who is a member of a
committee shall be employed by a committee during the
tenure of his term and for a period of twelve months
thereafter.

(2) Nothing in this section shall prevent the State
Government from making any provision in the rules under
this Act for the reservation of appointments or posts and to
lay down methods to secure such reservation in favour of
members of the Scheduled Castes, the Scheduled Tribes and
such other backward classes of citizens which in the opinion
of the State Government are not adequately represented in
the services under the Municipal Committee. ”

The Recruitment Rules, 1975 sets out the entire cadre to whom they

applied in Appendix A to D but Clerks will not included as falling within

the category of persons who were so governed. According to him, the

appointment to the post of Clerks and Peons could be made by the

respective Municipal Council on due resolutions and setting their own

norms for recruitment and for which no permission from the Government

was necessary. If the recruitment rules cited by the learned counsel

appearing for the Municipal Council did not apply, the so-called

permissions or sanction by the Executive Officer were of no relevance.

Admittedly all the workmen had been employed by due resolutions of the

Municipal Council and if the termination of services were to be made,

they could not be done without reference to the statutory provisions of

Section 25-F of the Industrial Disputes Act.

6. Going through the provisions, the learned counsel appearing

for the Municipal Council fairly conceded that the Punjab Municipal

Services Recruitment Rules, 1975 themselves would not apply, but still
Civil Writ Petition No.9141 of 2001 -7-

he would contend that there were no order of initial appointments and

appointments to a public body like Municipal Council could not have

been made without following any transparent procedure for appointing

them. Further according to him, the communications relating to the

nature of engagement as contractual employment were omitted to be filed

and he sought for permission for giving him an opportunity to let in

appropriate evidence before the Labour Court by remanding the matter.

In my view, the plea for a remand on the ground that the Municipal

Council shall be given opportunity to adduce fresh evidence will be

grossly prejudicial to the interest of the workmen. The orders of

termination had been effected in the year 1997 and for 12 long years, the

workmen had been fighting for their rights. A public body cannot be

heard to say that they did not know what relevant documents were

required to be filed for establishing their defence. If it is seen that there

was no proof that the workmen had been engaged only for a specific

period, the termination by a resolution to take effect on 31.03.1997

without offering to them compensation simultaneously would not meet

the requirements of law. The offer to send the amounts two days later is

not in conformity with law. Section 25-F has a salutary objective that the

workmen shall have adequate resources in his hand for searching for a

new job and to prevent indigency. The provision has to be strictly

construed and if there was no compliance, there is no reason why the

workmen should be denied their entitlement into the entry into service.

7. The awards of the Labour Court in so far as they direct

reinstatement, continuity of service and back wages are confirmed and
Civil Writ Petition No.9141 of 2001 -8-

the award for two workmen for whom the termination was upheld is set

aside. Consequently, Civil Writ Petitions 9141, 9145, 9146, 9162, 9181,

9182 and 9385 of 2001 are dismissed and Civil Writ Petitions 10263 and

10502 of 2003 are allowed granting to the workmen reinstatement,

continuity of service and back wages. No costs.


                                                      (K.KANNAN)
19.11.2009                                               JUDGE
sanjeev