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