JUDGMENT
Mehtab S. Gill, J.
1. By this common judgment, I shall be disposing
of both these Civil Writ Petition Nos. 18127 of 1994 and
1201 of 1995 as the questions of facts and law involved
therein are identical in nature. However, for the sake of
convenience, the facts are being extracted from Civil Writ
Petition No. 1201 of 1995.
2. The petitioners have prayed for the issuance of
a writ in the nature of certiorari for quashing award
dated September 29, 1994 (Annexure P-8) passed by the
Presiding Officer, Industrial Tribunal, Punjab, Chandigarh
(respondent No. 1).
3. The petitioners have averred that respondent
Nos. 2 to 5 were appointed as Peons/Guards/Sweepers on
September 30, 1985 by the Market Committee, Guru Harsahai,
district Ferozepur without inviting applications through
an advertisement in the Press and without any eligible
candidate being called from the Employment Exchange. The
Administrator, Market Committee, Guru Harsahai district
Ferozepur, after 72 days of the employment of respondent
Nos. 2 to 5, on seeing that, the appointments of these
respondents were not according to the rules and
regulations framed by the Board, terminated the services
of respondent Nos. 2 to 5 vide his order dated December
10, 1985 (Annexure P-1).
4. The Administrator, Market Committee, Guru
Harsahai, district Ferozepur, issued an advertisement
(Annexure P-2) in the Daily “Charhdi Kalan” newspaper for
the recruitment of Peons and Chowkidars. A request was
also sent to the Employment Exchange for sponsoring the
names of the candidates for the said posts.
5. Respondent Nos. 6, 7 and 8 along with others
applied for the job and appeared in the interview held on
June 2, 1986. Respondent Nos. 6 to 7 were appointed as
Peons on June 2, 1986 and respondent No. 8 as Chowkidar with
effect from January 9, 1987. A copy of the appointment
letter dated June 2, 1986 in respect of Arjun Lal
(respondent No. 6) is annexed with the petition as Annexure
P-3.
6. Respondent Nos. 2 to 5 challenged the
termination order dated December 10, 1985 and raised an
industrial dispute. The Labour Court, Bhatinda vide its
award dated March 7, 1988 (Annexure P-4) upheld the
termination order issued against respondent Nos. 2 to 5.
7. Respondent Nos. 2 to 5 served another demand
notice upon the petitioners on January 3, 1990 on the
ground that when respondent Nos. 6 to 8 were appointed,
they were not given an opportunity of re-employment and
thus, the provisions of Section 25-H of the Industrial
Disputes Act, 1947 (hereinafter called as “the Act”) were
violated. The Industrial Tribunal, Chandigarh (respondent
No. 1) vide its ex parte award dated September 1, 1992 gave
directions that respondent Nos. 2 to 5 be re-employed on
the same posts.
8. Civil Writ Petition No. 16700 of 1992 was filed
by the petitioners before this Hon’ble Court. This Court
set aside the ex parte award and the case was remanded to
the Industrial Tribunal, Chandigarh for fresh
adjudication.
9. The Industrial Tribunal, Chandigarh (respondent
No. 1) gave a fresh award dated September 29, 1994 (Annexure
P-8). Respondent Nos. 2 to 5 were reinstated and the
Market Committee, Guru Harsahai (petitioner No. 2) was
directed to re-employ respondent Nos. 2 to 5. Industrial
Tribunal further directed that respondent Nos. 2 to 5
will be deemed to be in the employment of the petitioners
with effect from the date of retrenchment of their
service, i.e., December 10, 1985. Further, respondent Nos.
2 to 5 were awarded full back wages.
10. Notice of motion was issued.
11. Written statement were filed.
12. Learned counsel for respondent Nos. 2 to 5 has
stated that vide Resolution No. 5 dated October 1, 1985
(Annexure R-1), it was unanimously resolved that
respondent Nos. 2 to 5 be employed as Peons and Chowkidars.
Further, in the said resolution, it was resolved that the
appointments be made after making local publicity by the
Market Committee. Learned counsel has further contended
that the local publicity was made and only after that,
respondent Nos. 2 to 5 were given appointments.
13. Learned counsel for the petitioners has stated,
that as no advertisement was made, nor was any requisition
sent to the Employment Exchange, therefore, the
appointments of respondent Nos. 2 to 5 were illegal and
thus, they could not be kept in service. Learned counsel
has further contended that respondent Nos. 2 to 5 have
not completed 240 days of their service. The first award
dated March 7, 1988 has become final and thus, respondent
Nos. 2 to 5 could not have filed their claim statements
nor was the Industrial Tribunal, Chandigarh (respondent
No. 1), while passing the second award dated September
29, 1994 (Annexure P-8) within its rights to do so.
14. Learned counsel, Shri Sumeet Mahajan, appearing
for respondent Nos. 6, 7 and 8 has stated that as respondent
Nos. 6, 7 and 8 were appointed regularly and have been
serving the department for the last 17 years, now
terminating their services, would be a violation of these
rights under Article 16(1) of the Constitution of India.
I have heard the learned counsel for the
petitioners and the learned counsel for the respondents.
15. The services of respondent Nos. 2 to 5 were
terminated on December 10, 1985 by an order of the Labour
Court; respondent Nos. 6 to 8 were appointed on June
2, 1986 and January 9, 1987. Demand notice, for seeking
re-employment under Section 25-H of the Act, put forward
by respondent Nos. 2 to 5, was served upon the
petitioners on January 3, 1990. Respondent Nos. 2 to 5
could not take any advantage of the provisions of Section
25-H of the Act because at the time when they raised their
first demand and issued notice, respondent Nos. 6, 7 and 8
were not in the services of petitioner No. 2 and 8. It is
only after respondent Nos. 6, 7 and 8 were given service on
June 2, 1986 and January 9, 1987 did the cause arise for
respondent Nos. 2 to 5 to serve demand notice under
Section 25-H of the Act.
16. Going through resolution No. 5 dated October’
1, 1985 (Annexure R-1), it comes out that it is only after
due publicity that respondent Nos. 2 to 5 were given
appointments.
17. The Management witness, namely, Shri Manjit
Singh, Secretary, who came into the witness box as MW1,
whose statement is annexed as Annexure R-3, has stated
that when fresh appointments of respondent Nos. 6 to 8
were made, no registered letters were sent to respondent
Nos. 2 to 5. He has further stated that this was not
done because it was not required.
18. Going through the statement of this witness,
one can come to the conclusion that his reply has been
evasive.
19. Appointment letters (Annexure P-1), P-3 and
R-5) were issued to respondent Nos. 2 to 5. Appointment
letter Annexure R-5 is signed by the Chairman, Market
Committee, Guru Har Sahai and appointments to the posts
are on regular basis. This is one of the appointment
letters (Annexure R-5), which was sent to Harish Kumar,
respondent No. 3 and other appointment letters, which were
sent to respondent Nos. 2, 4 and 5, are of similar nature.
20. No fraud was committed on behalf of respondent
Nos. 2 to 5 to get employment. If there was any laxity,
it was on the part of the authorities for which respondent
Nos. 2 to 5 cannot be penalised. The provisions of
Section 25-H are reproduced as under:-
“25-H. Re-employment of retrenched workmen.-
Where any workmen are retrenched, and the
employer proposes to take into his employ any
persons, he shall, in such manner as may be
prescribed, give an opportunity (to the
retrenched workmen who are citizens of India to
offer themselves for re-employment, and such
retrenched workmen) who offer themselves for
re-employment shall have preference over other
persons.”
21. The provisions of Section 25-H of the Act, as
quoted above, clearly envisage that respondent Nos. 2 to
5 should have been given due notice whether they went to
get employment or not. Respondent Nos. 2 to 5 have been
wrongly and illegally retrenched from service under the
provisions of Section 2(oo)(bb) of the Act.
22. Learned counsel for respondent Nos. 6 to 8 has
drawn my attention to a judgment of this Court rendered in
the case of Karnal Central Co-operation Bank Ltd.
(through its Managing Director), Karnal v. Industrial
Tribunal-cum-Labour Court, Rohtak and Ors., 1994 (1)
L.L.N. 233, wherein the reference was declined on the
ground of delay. Subsequently, another reference was
made. It was held that the reference is bad. This
judgment does not apply to the case in hand. In the
instant case, the provisions of Section 25-H of the Act
could not have been agitated by respondent Nos. 2 to 5 at
the time when the first reference was made because at that
time respondent Nos. 6 to 8 had not been given employment
by the petitioners.
23. Learned counsel for the respondents has drawn
my attention to a Division Bench Judgment of this Court
rendered in the case of Satnam Singh v. Presiding
Officer, Labour Court, Gurdaspur and Ors., 2001 (3) R.S.J.
90, wherein full back wages were not granted to the
workman and they were awarded from the date of the demand
notice.
24. Learned counsel for the respondents has further
drawn my attention to a judgment of the Hon’ble Supreme
Court rendered in the case of Himanshu Kumar Vidyarthi and
Ors. v. State of Bihar and Ors., 1997 (3)
R.S.J. 298. The fats of the case, as cited above, were
that the services of the petitioners were terminated as
they were not appointed according to the rules. The
petitioners were engaged on the basis of need of work on
daily wages. This judgment can be distinguished on facts
as, in the case in hand, respondent Nos. 2 to 5 were
appointed permanently and were not on daily wages.
25. Learned counsel for respondent Nos. 2 to 5 has
stated that respondent Nos. 2 to 5 are ready to forego
50% of the back wages from the date of demand notice.
26. The petitioners are directed to reinstate
respondent Nos. 2 to 5 with 50% back wages from the date
of demand notice. The petitioners are further directed to
give employment to respondent Nos. 2 to 5 where suitably
required. As respondent Nos. 6 to 8 have served the
petitioners for the last 17 years, now terminating their
services would be a very harsh step. The petitioners are
further directed to keep respondent Nos. 6 to 8 in
employment and adjust them on a post wherever they feel,
it is suitable.
27. I do not find any infirmity in the award dated
September 29, 1994 (Annexure P-8) passed by the Presiding
Officer, Industrial Tribunal, Punjab, Chandigarh. Award
is modified to the extent that employment to respondent
Nos. 6, 7 and 8 shall not be disturbed.
28. Both these writ petitions are disposed of in
the manner indicated above.