The Haryana State Cooperative … vs The Presiding Officer on 3 December, 2009

C.W.P. No.3087 of 1989                         -1-

     IN THE HIGH COURT FOR THE STATES OF PUNJAB
             AND HARYANA AT CHANDIGARH

                            C.W.P. No.3087 of 1989
                            Date of Decision: 03.12.2009


The Haryana State Cooperative Land Development Bank Ltd.,
Chandigarh through its Managing Director .....Petitioner

                             Versus

The Presiding Officer, Labour Court, Faridabad and others
                                             ....Respondents

Present: Mr. S.S. Dalal, Advocate
for the petitioner.

None for the respondents.

CORAM:HON’BLE MR. JUSTICE K. KANNAN

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 order in challenge is a direction for reinstatement of

the workman with continuity of service and back wages. The

contention of the workman was that he had been terminated from

service without complying with the provisions of Section 25-F of

the Industrial Disputes Act, although he had completed 240 days

of service. The management resisted the claim of the workman

on the ground that even at the time when appointment order was

issued, it stipulated that the workman shall obtain proficiency in

typing 40 words per minute within a period of six months and if
C.W.P. No.3087 of 1989 -2-

he did not qualify for such a proficiency, his services were liable

for termination without any further notice. The contention of the

management was that the workman had been granted at least four

opportunities to qualify himself in the manner contemplated in the

appointment letter and since he did not obtain such a

qualification, his services were terminated.

2. The Labour Court reasoned that the condition in the

appointment order was introduced for the first time, which

condition had not been indicated in the notification calling for

applicants for the post. According to the Labour Court, this

condition in the appointment order had been forced on the

workman and the management could not have imposed such a

condition. The Labour Court, therefore, found that the

termination effected without compliance of the statutory

requirement under Section 25-F of the Industrial Disputes Act

was illegal.

3. The only contention raised by the counsel for the

management is that when there was a specific stipulation as to the

qualification of the workman for continuance of duty and if that

qualification the workman did not have, the termination shall be

understood as being occasioned under a situation contemplated

under Section 2(oo)(bb) of the Industrial Disputes Act. The sub

clause (bb) contemplates “termination of service of the workman

as a result of non-renewal of the contract between the employer
C.W.P. No.3087 of 1989 -3-

and the employee concerned on its expiry or of such contract

being terminated under a stipulation in that behalf contained

thereunder.” The stipulation contained in the appointment order

contained, inter alia, following:

“(a) You will have to pass type test at the speed of 40

W.P.M. Within six months from the date of

joining, failing which your services will be

terminated without giving any notice.”

4. Admittedly, the stipulation provided for a termination of

service and although it contemplated termination of service

without notice, the management had in this case admittedly issued

notices to the workman urging him to acquire the proficiency and

only when it was not so done, the termination ensued.

5. The reasoning of the Labour Court that the

advertisement calling for the post did not contain such a

stipulation is meaningless, for the contract of employment takes

place not at the time when an advertisement is issued. An

advertisement is merely an invitation to offer employment. It is

the appointment order, which when accepted constitutes the

contract. A condition in such appointment order is binding and

the workman shall not be entitled to fall back of what stipulations

the advertisement did not contain. The order of termination

cannot be impeached by the workman in the manner he did and

the challenge to the termination order ought to have been rejected.
C.W.P. No.3087 of 1989 -4-

6. The award of the Labour Court is, under the

circumstances, set aside and the order of termination passed

already by the management is sustained.

7. The writ petition is allowed in the above terms. No

costs.

(K .KANNAN)
JUDGE
December 03, 2009
Pankaj*