IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Writ Petition No.17082 of 2007 (O&M)
Date of decision : 5th September, 2008
Government College, Sector-1, Panchkula (Haryana)
through its Principal Shri Raghbir Chand Goyal.
... Petitioner
Versus
Presiding Officer, Labour Court, Ambala and another
... Respondents
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present : Mr. S.K. Hooda, Senior DAG Haryana for the petitioner.
Mr. Amit Chopra, Advocate for respondent No.2.
KANWALJIT SINGH AHLUWALIA, J.
Civil Misc. No. 13829 of 2008
CM allowed.
Affidavit of respondent No.2 is taken on record.
Civil Writ Petition No.17082 of 2007
Present writ petition has been filed by Government College,
Sector-1, Panchkula (Haryana) through its Principal Shri Raghbir Chand
Goyal challenging impugned award (Annexure P-8) dated 20.04.2006
passed by the Labour Court, Ambala, whereby it has been ordered that
Civil Writ Petition No.17082 of 2007 2
respondent No.2 Ram Karan (hereinafter called the ‘workman’) is entitled
to reinstatement with continuity in service with full back wages.
Respondent-workman had served a demand notice, on which
following reference was sent to the Labour Court:
“Whether the termination of services of workman Ram
Karan is justified or not? If not so to what relief is he entitled”Thereafter, respondent-workman submitted claim statement
(Annexure P-3), in which it was stated that he was employed by the
petitioner-management on 05.09.1997 as a Chowkidar and his full salary
was Rs.2900.00 p.m. and that subsequently, his salary was reduced to the
half of his original salary, i.e. Rs.1450/- p.m. It was averred therein that his
services were illegally terminated on 03.09.2002. The management filed
written statement (Annexure P-4). It was stated therein that the
respondent-workman had worked on contract basis from 12.12.1998 to
30.03.2002 with intermittent breaks. Issues were framed and parties led
their evidence. Learned Labour Court in para 15 of its award, held that the
workman had put in more than 240 days of continuous service in the last
12 preceding months before the date of his termination, i.e. 30.03.2002,
and concluded as under:
“21. Keeping in view my findings in the aforesaid issues,
the claim petition of the petitioner succeeds and the same is
hereby accepted with costs. Accordingly, the impugned order
of the respondent thereby terminating the services of the
petitioner-workman is hereby set-aside being wrong, illegal
and null and void and the respondent is directed to reinstate
the petitioner-workman alongwith all the consequential service
benefits including continuity of service and full back wages.”Civil Writ Petition No.17082 of 2007 3
Learned Labour Court further held that plea of the
management that the workman was employed by the Contractor, cannot be
believed and gave following reasoning:
“17. Even otherwise, a notice Mark A issued by the
Principal of the respondent’s Institution thereby inviting the
tenders for the job/work of computer/campus cleaning/cycle
stand security for the session 2002-2203 beginning from the
July, 2002 and the application Ex.M16 submitted in response
thereto by the alleged contractor Gurmit Singh cannot be
accorded any credence at all as the said document do not
bear any date thereon. Besides, it has not been clarified by
the respondent-management as to on what terms and
conditions the said contractor had allegedly employed the
present petitioner nor it has brought the alleged contractor into
the witness-box in order to support its assertions to the effect
that the petitioner had been employed by the said Contractor
or that why his services had been terminated by the said
Contractor.”
On the basis of this reasoning, Labour Court concluded that
the workman is entitled to reinstatement with continuity of service.
We are unable to accept this reasoning of the Labour Court. It
was for the workman to prove that he has worked for 240 days. Therefore,
he could not be held to be entitled to reinstatement into service. It has
nowhere come in evidence that appointment of the workman into public
employment was in pursuance of any advertisement issued or his name
was requisitioned through any employment exchange. Workman was a
contractual employee.
The workman could not be reinstated in view of judgment of
the Hon’ble Supreme Court in State of Karnataka and others v. Umadevi
and others (2006) 4 SCC 1.
Civil Writ Petition No.17082 of 2007 4
We find that the view taken by the Hon’ble Supreme Court in
Municipal Council, Samrala v. Raj Kumar (2006) 3 SCC 81 is that unless
an employee is appointed as per rules and regulations, his/her appointment
cannot be treated to be consistent with Articles 14 and 16 of the
Constitution. Appointment given de hors the rules and regulations is liable
to termination and is covered under Section 2(oo) (bb) of the Act and thus,
does not amount to retrenchment. Similarly, in Gangadhar Pillai v.
Siemens Limited (2007) 1 SCC 533, Indian Drugs & Pharmaceuticals
Ltd. v. Workmen (2007) 1 SCC 408, Reserve Bank of India v. Gopinath
Sharma and another (2006) 6 SCC 221 and UP Power Corporation Ltd.
and another v. Bijli Mazdoor Sangh and others (2007) 5 SCC 755, it has
been held that reinstatement of a workman in public employment will not be
consistent with Article 14 unless a workman had been appointed by
following rules and regulations.
Learned counsel for the petitioner-management has further
relied on judgment of this Court in Suresh Kumar Sharma v. Presiding
Officer, Labour Court, U.T. Chandigarh and another 2006(4) Service
Cases Today 672, wherein it was held that retrenchment has been defined
in Section 2(oo) of the Act but the same does not include exception under
Section 2(oo)(bb). Termination of the service of workman as a result of
non-renewal of the contract or employment between the employer and the
workman concerned on its expiry or of such contract being terminated
under a stipulation shall not amount to retrenchment and Section 25-F
compliance is not required.
In the above said judgment, it has been held as under:-
“…Therefore, the question of workman taking the plea
that the matter falls within the purview of Section 25-F of the
Act does not arise. It is not a case where the workman was
Civil Writ Petition No.17082 of 2007 5
continuously appointed with artificial gap of one day or so to
say that the management was prone to unfair labour practice.
A conjoint reading of the said offer and the extensions thereof
(Anneuxres P-1 to P-3) clearly shows that they were
contractual and were for a fixed term. In this backdrop the
case of the petitioner-workman falls within the said exception
of Clause (bb). It is thus imperative to conclude that the
termination of the workman did not amount to retrenchment as
the same was in consequence with the terms and conditions
of his appointment/extensions. Thus, the services of petitioner
have come to an end with efflux of time. Once the conclusion
logically so arrived is that the termination of the workman from
the employment did not constitute retrenchment within the
meaning of Section 2(oo) of the Act, in our view there is no
question of application of Section 25-F of the Act. Our this
view finds support from a decision rendered by Hon’ble the
Apex Court in the case of Haryana State Agricultural
Marketing Board v. Subhash Chand and another, 2006(2)
SCT 23 (SC): 2006 (2) Law Herald (SC) 1053. The Labour
Court has rightly considered this aspect of the matter that the
services of petitioner-workman were discontinued after the
expiry of fixed term and it is not open to him to raise dispute
under the Act by taking the plea of applicability of Section 25-F
of the Act”.
Resultantly, we accept the present writ petition and set aside
the impugned award passed by the Labour Court, whereby services of the
respondent-workman were ordered to be reinstated.
[HEMANT GUPTA] [KANWALJIT SINGH AHLUWALIA]
JUDGE JUDGE
September 05, 2008.
rps