IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Writ Petition No.11549 of 1992
Date of decision:19.08.2009
The Karnal Central Cooperative Bank Limited, Karnal ...Petitioner
versus
State of Haryana and others .....Respondents
2. Civil Writ Petition No.2099 of 1993
The Karnal Central Cooperative Bank Limited ...Petitioner
versus
The State of Haryana and others ...Respondents.
CORAM: HON'BLE MR. JUSTICE K.KANNAN
Present: Mr. C.B.Goel, Advocate, for the petitioner.
Mr. D.S. Nalwa, Additional Advocate General, Haryana.
Mr. Y.P.Malik, Advocate, for respondent No.3
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1. Whether reporters of local papers may be allowed to see the
judgment ? Yes.
2. To be referred to the reporters or not ? Yes.
3. Whether the judgment should be reported in the digest ? Yes.
K.Kannan, J.
1. In the above two cases even in the absence of counsel for the
petitioner, arguments of the counsel for the second respondent were
heard and judgment was pronounced in open Court on 10.08.2009. After
the judgment was dictated, the learned counsel appearing for the
petitioner-Bank made an oral submission in Court of his inability to be
present at the time when the case was taken up and requested for re-
hearing of the case. He urged that the order dictated on the basis that no
Civil Writ Petition No.11549 of 1992 – 2-
recruitment rules were shown to the effect that the Appointing Authority
had no competence and that the findings rendered in the judgment
premised on the failure of the workman to bring to the attention of the
relevant recruitment rules were incorrect and required to be recalled.
In view of the legal submission with reference to rules which the learned
counsel for the petitioner wanted to make, I have recalled the order
passed in open Court on 10.08.2009 and served a notice on both counsel
to make submissions on 13.08.2009. This judgment is being delivered
after fresh arguments advanced by the respective counsel of both sides.
2. Both the writ petitions are at the instance of the same
management with reference to engagement of two different workmen.
By the impugned awards, there had been a direction for reinstatement of
the workmen with continuity of service and full back wages. The
management is before this Court challenging the respective awards.
3. In Civil Writ Petition No.11549 of 1992, the workman is
alleged to have been appointed as a Clerk on 03.11.1986, reappointed on
05.02.1987 and again given a fresh appointment on 06.05.1987, on each
occasion for a term of 89 days on ad hoc basis. His services were alleged
to have been terminated on 24.06.1987 before the completion of 240
days, when the workman had 226 days only. The Labour Court found
that the management had deliberately terminated his services in order
that he had not completed 240 days, even when there was work available.
Rejecting the plea on behalf of the management that the employment had
been on contract basis for a stipulated time, the Labour Court held
relying on the decision of this Court reported in 1990(1) LLJ 443 that the
Civil Writ Petition No.11549 of 1992 – 3-
provisions of Section 2(oo)(bb) itself could be interpreted as only limited
to a case where the work itself had been accomplished and the contract
of appointment of the workman for a specific period was genuine. The
Labour Court found that it was a regular work in a Bank and the
management had indulged in unfair labour practice to deliberately hold
him on employment for 89 days in a stretch with breaks in service to
defeat the workman from claiming the benefits under the Industrial
Disputes Act. The Labour Court found that the management had
appointed another workman Ram Kishan subsequently and he had been
retained in service while only the workman was retrenched thereby
violating the provisions of Section 25-H also.
4. As regards the case in Civil Writ Petition No.2099 of 1993,
the workman was alleged to have been appointed as a Clerk for a term of
89 days on 18.09.1986, again on 16.12.1986 and then on 24.03.1987 and
his services were terminated on 20.06.1987. The Labour Court found he
had completed 240 days of service and rejected the contention of the
management that the termination did not amount to retrenchment by
application of Section 2(oo)(bb) of the Industrial Disputes Act. The
Labour Court held that there was no plea of the management that the
work of a Clerk had come to an end and applying the very same
judgment referred to above reported in 1990(1) LLJ 443, it had that the
section was to be limited to the cases where the work had been
accomplished and the appointment for a specific period was genuine. If
the work was continuous, the non-renewal of the contract itself was to be
dubbed as mala fide. Finding that the workman had completed 240 days
Civil Writ Petition No.11549 of 1992 – 4-
of service, it held applying the decision of the Hon’ble Supreme Court in
1981 SCC (L&S) 467, that the retrenchment without complying with
Section 25-F would be void ab initio and he was declared entitled to be
reinstated with full back wages.
5. At the forefront of his argument, the learned counsel
appearing for the petitioner would submit that the appointment had been
made by the Managing Director. As per the relevant rules in 9.1 of the
Haryana State Central Co-operative Bank’s Staff Service (Common
Cadre) Rules 1975, the authority to make appointments to various posts
in each category shall vest in the Board, which may delegate all or some
of its powers to the Administrative Committee or its Manager. To a
query where there had been any contention in Civil Writ Petition
No.11549 of 1992 that the Appointing Authority did not have such a
power, the learned counsel conceded that there was no such averment but
even if such a provision did not apply, he contended that by virtue of the
rule 9.4 which applied to appointment by direct recruitment, except in
cases of ah hoc appointments where the period shall not exceed six
months, all other appointments were required to be made after prior
advertisement in at least one leading newspaper and obtaining the names
of the candidates from Employment Exchange mentioning qualifications
etc. According to him, no such advertisement had been issued and
therefore, the appointment was irregular and a backdoor entry. In Civil
Writ Petition No.2099 of 1993, the very same management has taken a
specific plea that the Managing Director did not have a power to appoint
and the workman had not been filed a reply to the same. The attempt on
Civil Writ Petition No.11549 of 1992 – 5-
behalf of the management was, therefore, that in view of the decision of
the Hon’ble Supreme Court in Secretary, State of Karnataka Versus
Uma Devi-2006(4) SCC 1, the appointment in public office, which was
in violation of the recruitment rules would be bad in law and there cannot
be a direction for reinstatement. The learned counsel for the workman
would state that his client was not seeking for any regularization as it
happened in the case of Uma Devi, that he was merely complaining of
the fact that the termination effected of a workman without notice under
Section 25-F was bad. The learned counsel for the management would
persist if the decision of the Hon’ble Supreme Court would not apply, a
Division Bench of this Court in Divisional Forest Officer, Rohtak
Versus Jagat Singh and another-2009(2)PLR 586, has held that a daily
rated worker appointed de hors the rules of recruitment and without
inviting applications from eligible candidates cannot complain of
violation of Section 25-F and seek for reinstatement. The judgment was
also an authority for the proposition, referring to a decision in Jaipur
Development Authority Versus Ramsahai and another-(2006) 11
Supreme Court Cases 684, that even if there had been violation of
Section 25-G, a daily rated worker would not be entitled to
reinstatement. The Hon’ble Bench of this Court was considering the
case of the termination of a daily wager whose engagement of service
had come to an end by virtue of the application under Section 2(oo)(bb)
of the Act. The learned counsel appearing on behalf of the management
also refers to a decision in Punjab State Electricity Board Versus
Darbara Singh-2006 SCC (L&S) 64, that held if an appointment of a
Civil Writ Petition No.11549 of 1992 – 6-
daily rated worker was made conditional on the fact that the regular
employee were to be appointed, his service would come to an end, the
Hon’ble Supreme Court held the case would be squarely covered by
Section 2(oo)(bb) and Section 25-F would not be inapplicable.
6. In my view, the decision of the Hon’ble Division Bench in
Jagat Singh’s case as well as the decision of the Hon’ble Supreme Court
in Punjab State Electricity Board would not apply to this case for those
decisions dealt with the excepted category that would not fall within the
definition of ‘retrenchment’ by virtue of Section 2(oo)(bb). In this case,
we have specific finding rendered by the Labour Court that although the
Clerks were purported to have been appointed on contract basis, the
nature of work was such that it did not merely cease on the expiry of 89
days made at different times and that the engagement had been made for
period less than 90 days only to prevent the workman from completing
240 days and to defeat the workman from claiming any benefits under
the Industrial Disputes Act. In view of a clear finding that Section 2(oo)
(bb) did not apply and that the work was of a continuous nature and that
further the management had indulged in unfair labour practice, I find that
the termination of the workman without resort to Section 25-F was
illegal and bad.
7. The issue of reinstatement ought to naturally follow except in this
case it is brought on record to my notice by a specific pleading in Civil
Writ Petition No.2099 of 1993, that the person who appointed the
workman namely the Managing Director did not have authority to
appoint and that fact was not refuted by reply by the workman. In Civil
Civil Writ Petition No.11549 of 1992 – 7-
Writ Petition No.11549 of 1992, there is not even such a plea that the
workman had been appointed by a person who was not competent to
appoint. Aware of the predicament of a lack of pleading before the
Labour Court which if it had been done, it should have been possible for
the workman to even prove the fact that the Managing Director had been
delegated with such a power. The learned counsel appearing for the
management would, therefore, contend even without reference to such
lack of power, rule 9.4 requires that the employment shall be by
advertisement for all cases other than ad hoc appointment. It could be
noticed that the orders of appointment were cited to be ad hoc but we
have already held that it was a deliberate ploy by the management to
defeat the workmen from claiming the benefits of the Industrial Disputes
Act. If it was a non-ad hoc post and the appointment had been made
without resort to the rules, it shall not be permissible for the workman to
claim reinstatement. The learned counsel for the workman, however,
points out that the very same bank had appointed several other persons
whose cases had been dealt with even in the year 1993 when the order of
retrenchment by the Labour Court was refused to be interfered with in
Civil Writ Petition No.2142 of 1993 filed by the very same bank. Nine
other workmen had the benefit of the services being even subsequently
regularized but by the only fact that the writ petitions were not taken up
at the same time, the very same management was taking up a different
plea denying the competence of the Managing Director to appoint and
citing illegality of the rules. Such an action on the part of the
management is submitted by the learned counsel as discriminatory.
Civil Writ Petition No.11549 of 1992 – 8-
8. If the appointment was bad initially but however, the
termination of the employment ultimately had been made in violation of
Section 25-F while at the same time allowing several other persons who
were appointed in the same fashion to continue in service by allowing
the decision passed by this Court in Civil Writ Petition No.2142 of 1993
to become final, the only appropriate benefit that could be extended to
these two workmen shall be at least compensation for the illegality in
terminations without reference to Section 25-F. Having regard to the
long pendency of case and the denial of employment only to the 2
workmen, while the other persons had been reinstated, the appropriate
compensation in each case, in my view, shall be Two Lakh rupees.
9. The respective awards of the Labour Court which are the
subject of challenge in the above said two writ petitions, are set aside and
the workmen shall be entitled only to compensation of Two Lakh rupees
each in lieu of reinstatement, which shall be paid within six weeks from
the date of receipt of the copy of this order, failing which the amounts
shall bear simple interest of 7.5% per annum.
10. The writ petitions are disposed of as above.
(K.KANNAN)
JUDGE
19.08.2009
sanjeev