{"id":214310,"date":"2009-07-15T00:00:00","date_gmt":"2009-07-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/haryana-seeds-development-vs-the-presiding-officer-on-15-july-2009"},"modified":"2015-05-25T11:20:44","modified_gmt":"2015-05-25T05:50:44","slug":"haryana-seeds-development-vs-the-presiding-officer-on-15-july-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/haryana-seeds-development-vs-the-presiding-officer-on-15-july-2009","title":{"rendered":"Haryana Seeds Development … vs The Presiding Officer on 15 July, 2009"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Haryana Seeds Development … vs The Presiding Officer on 15 July, 2009<\/div>\n
     IN THE HIGH COURT OF PUNJAB AND HARYANA AT\n                       CHANDIGARH\n\n\n                                Civil Writ Petition No.3618 of 1997\n                                Date of decision:15.07.2009\n\n\nHaryana Seeds Development Corporation Limited             ...Petitioner\n\n                               versus\n\nThe Presiding Officer, Labour Court, Ambala             ...Respondents\nand another.\n\n\n\nCORAM: HON'BLE MR. JUSTICE K.KANNAN\n\n\nPresent:     Mr. Vishal Gupta, Advocate, for the petitioner\n\n             Mr.Shireesh Gupta, Advocate, for respondent No.2.\n                        ---\n<\/pre>\n
1.     Whether reporters of local papers may be allowed to see the
\n       judgment ?\n<\/p>\n
2.     To be referred to the reporters or not ?\n<\/p>\n
3.     Whether the judgment should be reported in the digest ?<\/p>\n
K.Kannan, J.(Oral)<\/p>\n
             1.    The award impugned is a direction by the Labour<\/p>\n
Court regarding justification for termination of services, when the<\/p>\n
Labour Court held that the workman was entitled to be reinstated in<\/p>\n
service with back wages and continuity of service.<\/p>\n
             2.    The Haryana Seeds Development Corporation, a<\/p>\n
public body, which is the employer, challenges the award of the Labour<\/p>\n
Court on four grounds: Firstly, the workman had previously applied to<\/p>\n
the High Court for a similar relief questioning the very same order of<\/p>\n
termination and the writ petition had been dismissed as belated.<\/p>\n
An application for review was also dismissed. After the dismissal of the
\n Civil Writ Petition No.3618 of 1997                            -2-<\/span><\/p>\n
case by the High Court, it should be understood that the decision was on<\/p>\n
merits and a petition before the Labour Court was, therefore, barred by<\/p>\n
res judicata. Secondly, even before the Labour Court, the reference had<\/p>\n
been made nearly five years after the initial order of termination and<\/p>\n
therefore, the claim was belated and the Labour Court could not have<\/p>\n
entertained and granted no relief. Thirdly, the claimant did not fulfil the<\/p>\n
status as a workman within the definition of Section 2(s) of the Industrial<\/p>\n
Disputes Act. He was Seeds Development Assistant and was not a<\/p>\n
workman and therefore, he could not have any remedy under the<\/p>\n
Industrial Disputes Act. The fourth point that was argued was that the<\/p>\n
engagement was in ad hoc post and the services being terminable without<\/p>\n
assigning reasons, had in fact been terminated on the ground that the<\/p>\n
services were no longer required. According to him, even the initial<\/p>\n
engagement was not as per law and the appointment being violative of<\/p>\n
Articles 14 and 16 of the Constitution, the workman did not have a right<\/p>\n
to regularization.\n<\/p>\n
             3.      As regards the plea that the claim is barred by res<\/p>\n
judicata, the Labour Court had dealt with the objection by reference to a<\/p>\n
Full Bench ruling of this Court in Teja Singh Versus Union Territory-<\/p>\n
1981(1) SLR 274. The same issue has been dealt in a different fashion<\/p>\n
in the judgment of another decision of the Hon’ble Supreme Court in<\/p>\n
Haryana State Cooperative Land Development Bank Versus Neelam-<\/p>\n
2005 (2) RSJ 439, that dealt with an action by a writ petition before<\/p>\n
the High Court seeking for issuance of writ of mandamus directing
\n Civil Writ Petition No.3618 of 1997                               -3-<\/span><\/p>\n
reinstatement.    Though the petition was filed within a period of three<\/p>\n
years from the date when the cause of action arose, ultimately the<\/p>\n
workman had the writ petition dismissed as withdrawn and sought an<\/p>\n
adjudication before the Labour Court on a reference which was<\/p>\n
undertaken seven years after the order of termination. There had been<\/p>\n
two objections by the management: firstly, the petition before the Labour<\/p>\n
Court was barred by res judicata; and secondly, the claim has belated.<\/p>\n
The Labour Court had found the claim to be barred and the High Court<\/p>\n
set aside that finding. The Hon’ble Supreme Court, however, stated that<\/p>\n
although the principle of res judicata could not be applied even the<\/p>\n
principle of abandonment provided under Order 23 Rule 1 which lays<\/p>\n
down a rule of public policy shall not applicable to a case of this nature.<\/p>\n
It pointed out that a writ petition which could have been dismissed even<\/p>\n
on the ground of alternative remedy which was more efficacious, without<\/p>\n
going into the disputed questions of fact cannot operate to bar remedy by<\/p>\n
approaching the Labour Court. What the Hon’ble Supreme Court said<\/p>\n
with reference to Order 23 Rule 1 CPC shall apply as well for an<\/p>\n
adjudication rendered not on merits but by a dismissal on the ground of<\/p>\n
laches.\n<\/p>\n
             4.    What was possible for a writ Court to apply as a<\/p>\n
ground of dismissal may not still be relevant in a case before the Labour<\/p>\n
Court where a greater latitude discretion is available and the Labour<\/p>\n
Court had exercised its discretion in admitting the claim. The decision of<\/p>\n
the Hon’ble Supreme Court referred to above is also an authority for<\/p>\n
the proposition that if a discretion is exercised in a particular fashion by
\n Civil Writ Petition No.3618 of 1997                               -4-<\/span><\/p>\n
taking note of the relevant factors, the High Court shall not interfere in<\/p>\n
the matter of such discretionary exercise.          Therefore, I reject the<\/p>\n
contention, that there is a bar of limitation or that the claimed is belated.<\/p>\n
             5.     Even as regards the contention that the workman did<\/p>\n
not fulfil his status as such, it has to be pointed out that no effort had<\/p>\n
been made by the management to take a specific plea as regards the<\/p>\n
status. The sweeping statement that the petition was not maintainable<\/p>\n
was sought to be urged as a point that was broad enough to accommodate<\/p>\n
a defence that the workman did not have such a status. The pointed<\/p>\n
attention of the Labour Court or the party could not have been brought to<\/p>\n
bear upon the conduct of parties to direct appropriate evidence in that<\/p>\n
regard. Even so, it shall be always the workman who claimed the status<\/p>\n
as a workman to establish his status as such and in view of contentions<\/p>\n
so raised disputing the status of the workman, the counsel for the<\/p>\n
respondent points out to the documentary evidence that had been<\/p>\n
produced along with the written statement. It is seen that the job profile<\/p>\n
of the workman is stated to be the allocation of various vegetables seeds<\/p>\n
of different sizes to be packed as shown in the statement (R-2\/1, dated<\/p>\n
21.10.1985). The other communications also refers only to the date for<\/p>\n
packing the vegetables seeds. Evidently the nature of activity that had<\/p>\n
been assigned to the petitioner was purely manual that fell within the<\/p>\n
definition of workman under Section 2(s) of the Industrial Disputes Act.<\/p>\n
I therefore also reject the contention that the petition before the Labour<\/p>\n
Court was not maintainable.\n<\/p>\n
 Civil Writ Petition No.3618 of 1997                             -5-<\/span><\/p>\n
            6.     The last contention that requires a focus is whether the<\/p>\n
workman established the termination to be unlawful and whether he was<\/p>\n
entitled to reinstatement. The justification to the removal as proffered in<\/p>\n
the objection before the Labour Court was with reference to the<\/p>\n
appointment order that stipulated as follows:-\n<\/p>\n
                   “Sh.Jai Narain S\/o Sh. Ram Chander is offered an
\n            appointment as S.P.A. on adhoc basis in the pay scale of
\n            Rs.600-1100\/- w.e.f. the date he takes over as such and
\n            posted at H.S.D.C., Tohana.\n<\/p><\/blockquote>\n
                   It is made clear to him that his appointment is purely
\n            on adhoc basis as stop gap arrangement till a regular
\n            candidate from employment exchange or Govt. is available,
\n            and terminable at any time without any notice and reason.”<\/p><\/blockquote>\n
            7.     The learned counsel appearing for the workman states<\/p>\n
that it contemplated that he could be displaced only by a regular<\/p>\n
candidate sponsored through Employment Exchange or Government.<\/p>\n
According to him, the post was never advertised nor any regular<\/p>\n
candidate was appointed and therefore, he was entitled to be continued in<\/p>\n
the same post. It was his further contention that the order of termination<\/p>\n
that was effected on 26.11.1986, did not state anywhere that the<\/p>\n
contingency by appointment of a regular candidate from Employment<\/p>\n
Exchange or Government had come into effect and that the termination<\/p>\n
was effected only on such contingency. The learned counsel for the<\/p>\n
workman also assails the termination order made without setting out any<\/p>\n
reason to be invalid. The learned counsel for the respondent also seeks to<\/p>\n
place reliance on a judgment of this Court as regards another workman in<\/p>\n
the same cadre who obtained the same relief in CWP No.1561 of 1989
\n Civil Writ Petition No.3618 of 1997                             -6-<\/span><\/p>\n
where this Court by reference to judgment of Hon’ble the Supreme Court<\/p>\n
in Executive Engineer CPWD, Indore Versus Madhukar Purshottam<\/p>\n
Kolharkar and another-(2002) 9 Supreme Court Cases 622, held that<\/p>\n
even if a workman had been engaged on daily wages on purely<\/p>\n
temporary basis and that his service could be terminated any time, the<\/p>\n
appointment could not be taken as one falling with the exception<\/p>\n
mentioned under Section 2 (oo)(bb) of the Industrial Disputes Act. I also<\/p>\n
held that without specific orders by prescribing the period of<\/p>\n
appointment it shall not be permissible to invoke the provisions of<\/p>\n
Section 2 (oo)(bb). After the decision of this Court mentioned above,<\/p>\n
there has been a paradigm shift in the judicial approach following the<\/p>\n
decision of the Consitution Bench of the Hon’ble Supreme Court in State<\/p>\n
of Karnataka Versus Uma Devi-(2006) 4 SCC 1, that dealt with the case<\/p>\n
of public employment. The Bench held that mere length of service shall<\/p>\n
not determine whether a person is entitled to regularization or not. The<\/p>\n
Hon’ble Supreme Court also held that back door entry is anathema to the<\/p>\n
constitutional scheme enshrined through Articles 14 and 16 and<\/p>\n
appointments made without reference to recruitment rules would be<\/p>\n
illegal. The Haryana Seeds Development Corporation is a public body<\/p>\n
and it shall not be possible for the persons to be engaged in service on ad<\/p>\n
hoc basis on stop gap arrangement, pending regular appointments. The<\/p>\n
very tenor of language applied in the appointment orders spells out its<\/p>\n
illegality as well. In the dispensation that has come about through<\/p>\n
pronouncement of the Hon’ble Supreme Court and several decisions that<\/p>\n
followed it, it shall not be possible to follow what was laid down in the
\n Civil Writ Petition No.3618 of 1997                           -7-<\/span><\/p>\n
decision of this Court referred to above. I respectfully disagree with<\/p>\n
a view expressed in Executive Engineer CPWD case (supra) in view of<\/p>\n
the subsequent pronouncement of the Hon’ble Supreme Court in the<\/p>\n
Constitutional Bench.\n<\/p>\n
             9.   Admittedly, the workman had been employed for 240<\/p>\n
days before the date of termination and the termination was effected<\/p>\n
without any previous notice as required under Section 25-F of the<\/p>\n
Industrial Disputes Act.     The statutory non-compliance enables a<\/p>\n
workman to claim compensation for the termination that has entailed.<\/p>\n
The workman has completed two years of service and in my view,<\/p>\n
compensation of Rs.25,000\/- shall meet the justice. It is brought to my<\/p>\n
attention by the learned counsel appearing for the workman that the order<\/p>\n
of the Labour Court was given effect to and he was reinstated in service<\/p>\n
by express orders of this Court as an interim measure. By the very nature<\/p>\n
of things, an order that is passed interim, shall subscribe to the final<\/p>\n
dispensation and the workman cannot obtain any privilege for<\/p>\n
continuation in employment. The writ petition is, therefore, allowed in<\/p>\n
the manner indicated above. No costs.\n<\/p>\n<\/p>\n
                                                   (K.KANNAN)
\n                                                       JUDGE
\n15.07.2009
\nsanjeev\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Haryana Seeds Development … vs The Presiding Officer on 15 July, 2009 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-214310","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nHaryana Seeds Development ... vs The Presiding Officer on 15 July, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/haryana-seeds-development-vs-the-presiding-officer-on-15-july-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Haryana Seeds Development ... vs The Presiding Officer on 15 July, 2009 - 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