CIVIL WRIT PETITION NO.8507 OF 2008 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: AUGUST 18, 2009
Nirmal Singh and others
.....Petitioner
VERSUS
State of Haryana and others
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
PRESENT: Ms. Sonia G. Singh, Advocate,
for the petitioners.
Mr. Harish Rathee, Sr.DAG, Haryana,
for the State.
****
RANJIT SINGH, J.
In response to an advertisement issued for appointment
to the posts of Class IV, the petitioners were appointed as Sweeper-
cum-Chowkidar on contract basis on 23.12.2006. Now the
respondents have invited tenders through the Contractors for
engaging labour on contract basis, though the petitioners are still
working against the posts by virtue of their contractual appointment.
The tender has since been accepted on 6.5.2008. The petitioners are
before this Court with a grievance that the respondents are replacing
CIVIL WRIT PETITION NO.8507 OF 2008 :{ 2 }:
the petitioners with another contract employees, which is termed as
illegal, unjust, unfair, unconstitutional and amounting to unfair labour
practice. The submission, as made on behalf of the petitioners, is
that the posts which are made available either on the contract or on
temporary basis, then the termination of such employees, without
making a regular selection would be illegal. Plea also is that the
employees who are appointed on a contract basis should be allowed
to continue till the appointment on regular basis is made, as
otherwise, it would amount to unfair labour practice.
In response to notice of motion, written statement on
behalf of respondent Nos.1 to 3 has been filed. It is stated that the
writ petition is not maintainable as no rights of the petitioners have
been infringed in any manner. Reference then is made to a policy
decision by the Government of Haryana to engage Group C and D
employees on contract basis in terms of the Policy Instructions dated
7.7.2006 (Annexure R-1). Respondent No.2 accordingly had directed
respondent No.3 to engage Group C and D employees on contract
basis. The petitioners were accordingly engaged on contract basis at
D.C rate on 27.12.2006. Their contract was extended from time to
time till 1.7.2008. As per the reply, the petitioners had left their job on
their sweet will on 17.5.2008 and have not reported on duty
thereafter. The respondents, therefore, have decided to out source
the services by engaging Group D employees to have smooth
discharge of the work and accordingly it is prayed that the writ
petition be dismissed.
The petitioners would dispute this position and would say
that they have never stopped working. However, the respondents did
CIVIL WRIT PETITION NO.8507 OF 2008 :{ 3 }:
not mark them present intentionally, which is clear from the fact that
they have filed this petition on 17.5.2008, which is stated to be the
date, when they, as per the respondents, have not reported for duty.
Whether the petitioners, who were appointed on a
contract basis, would have a right to continue, when the respondents
have decided to outsource the services, thus, is a question, which
would arise for consideration in this case? The counsel for the
petitioners would contend that the petitioners were working on
contract basis and so the action of the respondents in outsourcing
their service and then employing people on contract basis would be
unfair labour practice, which can not be permitted. In support, the
counsel has referred to Polu Ram and another Vs. State of
Haryana and another, 1998 (4) RSJ 152. She has also relied upon
the observations made in Hitesh Thakur Vs. The Chairman,
Managing Committee, National Horticulture Board, Gurgaon and
others, 2006 (1) RSJ 438. Hitesh Thakur’s case (supra) is a case
where the services of the petitioner therein were sought to be
terminated on the ground that terms of appointment came to an end
by efflux of time. In this background, the action of the respondents
therein to dispense with the respondents of the contract employees
to be replaced by other contract employees did not go well with the
Court and directions were, thus, issued permitting the petitioners
therein to continue on the posts they were holding till appointments
are made on regular basis. The facts in the present case are in
somewhat different context. Here the policy has been formulated to
outsource the services of contractual employees. Will the petitioners
in this background still have a right to insist on their continuation,
CIVIL WRIT PETITION NO.8507 OF 2008 :{ 4 }:
when they are not the permanent employees and were engaged on
contract. The proposition enunciated in Hitesh Thakur’s
case (supra) that one contract employee can not be replaced by
another contract employee would not strictly arise in the facts of the
present case. Here the respondents have taken a conscious
decision to outsource the services which were earlier being
performed by the petitioners on contract basis. This is not so in
isolation in the case or the place where the petitioners are working
but is on the basis of general policy decision formulated by the
respondent-Government. The petitioners would not have a right to
insist upon their continuation, especially so when they were
employed on a contract basis.
As per the respondents, the petitioners have not reported
for duty, a fact which is disputed by the petitioners. If this is to be
gone into, then the writ Court, may not be an appropriate forum.
Even for adjudicating the aspect of unfair labour practice being
adopted by the respondents, the appropriate forum would normally
be a Labour Court and not the writ Court. In Polu Ram’s case
(supra), teachers on contract basis were employed for a fixed period
of 89 days on vacant posts carrying regular pay scale. In this
background, the action was said arbitrary, oppressive and
unreasonable. Directions were accordingly issued to allow the
petitioners to continue in service till the availability of the regularly
selected candidates. As already noticed, the posts on which the
present petitioners were working are not the regular posts and the
same have now been outsourced. The ratio laid down in Polu Ram’s
case (supra) will also, thus, not apply to the facts of the present case.
CIVIL WRIT PETITION NO.8507 OF 2008 :{ 5 }:
The petitioners, who were employed purely on contractual basis,
would, thus, have no right to insist on their continuation. The
petitioners, if aggrieved, against this action on the ground that it is an
unfair labour practice, may approach the Labour Court by seeking
reference in this regard. It will not be appropriate to determine these
disputed questions of facts in exercise of writ jurisdiction.
The writ petition is, therefore, dismissed.
August 18,2009 ( RANJIT SINGH ) khurmi JUDGE