IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Writ Petition No.3618 of 1997
Date of decision:15.07.2009
Haryana Seeds Development Corporation Limited ...Petitioner
versus
The Presiding Officer, Labour Court, Ambala ...Respondents
and another.
CORAM: HON'BLE MR. JUSTICE K.KANNAN
Present: Mr. Vishal Gupta, Advocate, for the petitioner
Mr.Shireesh Gupta, Advocate, for respondent No.2.
---
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.(Oral)
1. The award impugned is a direction by the Labour
Court regarding justification for termination of services, when the
Labour Court held that the workman was entitled to be reinstated in
service with back wages and continuity of service.
2. The Haryana Seeds Development Corporation, a
public body, which is the employer, challenges the award of the Labour
Court on four grounds: Firstly, the workman had previously applied to
the High Court for a similar relief questioning the very same order of
termination and the writ petition had been dismissed as belated.
An application for review was also dismissed. After the dismissal of the
Civil Writ Petition No.3618 of 1997 -2-
case by the High Court, it should be understood that the decision was on
merits and a petition before the Labour Court was, therefore, barred by
res judicata. Secondly, even before the Labour Court, the reference had
been made nearly five years after the initial order of termination and
therefore, the claim was belated and the Labour Court could not have
entertained and granted no relief. Thirdly, the claimant did not fulfil the
status as a workman within the definition of Section 2(s) of the Industrial
Disputes Act. He was Seeds Development Assistant and was not a
workman and therefore, he could not have any remedy under the
Industrial Disputes Act. The fourth point that was argued was that the
engagement was in ad hoc post and the services being terminable without
assigning reasons, had in fact been terminated on the ground that the
services were no longer required. According to him, even the initial
engagement was not as per law and the appointment being violative of
Articles 14 and 16 of the Constitution, the workman did not have a right
to regularization.
3. As regards the plea that the claim is barred by res
judicata, the Labour Court had dealt with the objection by reference to a
Full Bench ruling of this Court in Teja Singh Versus Union Territory-
1981(1) SLR 274. The same issue has been dealt in a different fashion
in the judgment of another decision of the Hon’ble Supreme Court in
Haryana State Cooperative Land Development Bank Versus Neelam-
2005 (2) RSJ 439, that dealt with an action by a writ petition before
the High Court seeking for issuance of writ of mandamus directing
Civil Writ Petition No.3618 of 1997 -3-
reinstatement. Though the petition was filed within a period of three
years from the date when the cause of action arose, ultimately the
workman had the writ petition dismissed as withdrawn and sought an
adjudication before the Labour Court on a reference which was
undertaken seven years after the order of termination. There had been
two objections by the management: firstly, the petition before the Labour
Court was barred by res judicata; and secondly, the claim has belated.
The Labour Court had found the claim to be barred and the High Court
set aside that finding. The Hon’ble Supreme Court, however, stated that
although the principle of res judicata could not be applied even the
principle of abandonment provided under Order 23 Rule 1 which lays
down a rule of public policy shall not applicable to a case of this nature.
It pointed out that a writ petition which could have been dismissed even
on the ground of alternative remedy which was more efficacious, without
going into the disputed questions of fact cannot operate to bar remedy by
approaching the Labour Court. What the Hon’ble Supreme Court said
with reference to Order 23 Rule 1 CPC shall apply as well for an
adjudication rendered not on merits but by a dismissal on the ground of
laches.
4. What was possible for a writ Court to apply as a
ground of dismissal may not still be relevant in a case before the Labour
Court where a greater latitude discretion is available and the Labour
Court had exercised its discretion in admitting the claim. The decision of
the Hon’ble Supreme Court referred to above is also an authority for
the proposition that if a discretion is exercised in a particular fashion by
Civil Writ Petition No.3618 of 1997 -4-
taking note of the relevant factors, the High Court shall not interfere in
the matter of such discretionary exercise. Therefore, I reject the
contention, that there is a bar of limitation or that the claimed is belated.
5. Even as regards the contention that the workman did
not fulfil his status as such, it has to be pointed out that no effort had
been made by the management to take a specific plea as regards the
status. The sweeping statement that the petition was not maintainable
was sought to be urged as a point that was broad enough to accommodate
a defence that the workman did not have such a status. The pointed
attention of the Labour Court or the party could not have been brought to
bear upon the conduct of parties to direct appropriate evidence in that
regard. Even so, it shall be always the workman who claimed the status
as a workman to establish his status as such and in view of contentions
so raised disputing the status of the workman, the counsel for the
respondent points out to the documentary evidence that had been
produced along with the written statement. It is seen that the job profile
of the workman is stated to be the allocation of various vegetables seeds
of different sizes to be packed as shown in the statement (R-2/1, dated
21.10.1985). The other communications also refers only to the date for
packing the vegetables seeds. Evidently the nature of activity that had
been assigned to the petitioner was purely manual that fell within the
definition of workman under Section 2(s) of the Industrial Disputes Act.
I therefore also reject the contention that the petition before the Labour
Court was not maintainable.
Civil Writ Petition No.3618 of 1997 -5-
6. The last contention that requires a focus is whether the
workman established the termination to be unlawful and whether he was
entitled to reinstatement. The justification to the removal as proffered in
the objection before the Labour Court was with reference to the
appointment order that stipulated as follows:-
“Sh.Jai Narain S/o Sh. Ram Chander is offered an
appointment as S.P.A. on adhoc basis in the pay scale of
Rs.600-1100/- w.e.f. the date he takes over as such and
posted at H.S.D.C., Tohana.
It is made clear to him that his appointment is purely
on adhoc basis as stop gap arrangement till a regular
candidate from employment exchange or Govt. is available,
and terminable at any time without any notice and reason.”
7. The learned counsel appearing for the workman states
that it contemplated that he could be displaced only by a regular
candidate sponsored through Employment Exchange or Government.
According to him, the post was never advertised nor any regular
candidate was appointed and therefore, he was entitled to be continued in
the same post. It was his further contention that the order of termination
that was effected on 26.11.1986, did not state anywhere that the
contingency by appointment of a regular candidate from Employment
Exchange or Government had come into effect and that the termination
was effected only on such contingency. The learned counsel for the
workman also assails the termination order made without setting out any
reason to be invalid. The learned counsel for the respondent also seeks to
place reliance on a judgment of this Court as regards another workman in
the same cadre who obtained the same relief in CWP No.1561 of 1989
Civil Writ Petition No.3618 of 1997 -6-
where this Court by reference to judgment of Hon’ble the Supreme Court
in Executive Engineer CPWD, Indore Versus Madhukar Purshottam
Kolharkar and another-(2002) 9 Supreme Court Cases 622, held that
even if a workman had been engaged on daily wages on purely
temporary basis and that his service could be terminated any time, the
appointment could not be taken as one falling with the exception
mentioned under Section 2 (oo)(bb) of the Industrial Disputes Act. I also
held that without specific orders by prescribing the period of
appointment it shall not be permissible to invoke the provisions of
Section 2 (oo)(bb). After the decision of this Court mentioned above,
there has been a paradigm shift in the judicial approach following the
decision of the Consitution Bench of the Hon’ble Supreme Court in State
of Karnataka Versus Uma Devi-(2006) 4 SCC 1, that dealt with the case
of public employment. The Bench held that mere length of service shall
not determine whether a person is entitled to regularization or not. The
Hon’ble Supreme Court also held that back door entry is anathema to the
constitutional scheme enshrined through Articles 14 and 16 and
appointments made without reference to recruitment rules would be
illegal. The Haryana Seeds Development Corporation is a public body
and it shall not be possible for the persons to be engaged in service on ad
hoc basis on stop gap arrangement, pending regular appointments. The
very tenor of language applied in the appointment orders spells out its
illegality as well. In the dispensation that has come about through
pronouncement of the Hon’ble Supreme Court and several decisions that
followed it, it shall not be possible to follow what was laid down in the
Civil Writ Petition No.3618 of 1997 -7-
decision of this Court referred to above. I respectfully disagree with
a view expressed in Executive Engineer CPWD case (supra) in view of
the subsequent pronouncement of the Hon’ble Supreme Court in the
Constitutional Bench.
9. Admittedly, the workman had been employed for 240
days before the date of termination and the termination was effected
without any previous notice as required under Section 25-F of the
Industrial Disputes Act. The statutory non-compliance enables a
workman to claim compensation for the termination that has entailed.
The workman has completed two years of service and in my view,
compensation of Rs.25,000/- shall meet the justice. It is brought to my
attention by the learned counsel appearing for the workman that the order
of the Labour Court was given effect to and he was reinstated in service
by express orders of this Court as an interim measure. By the very nature
of things, an order that is passed interim, shall subscribe to the final
dispensation and the workman cannot obtain any privilege for
continuation in employment. The writ petition is, therefore, allowed in
the manner indicated above. No costs.
(K.KANNAN)
JUDGE
15.07.2009
sanjeev