{"id":215804,"date":"2009-08-19T00:00:00","date_gmt":"2009-08-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-karnal-central-cooperative-vs-state-of-haryana-and-others-on-19-august-2009"},"modified":"2017-08-08T08:52:50","modified_gmt":"2017-08-08T03:22:50","slug":"the-karnal-central-cooperative-vs-state-of-haryana-and-others-on-19-august-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-karnal-central-cooperative-vs-state-of-haryana-and-others-on-19-august-2009","title":{"rendered":"The Karnal Central Cooperative … vs State Of Haryana And Others on 19 August, 2009"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
The Karnal Central Cooperative … vs State Of Haryana And Others on 19 August, 2009<\/div>\n
     IN THE HIGH COURT OF PUNJAB AND HARYANA AT\n                    CHANDIGARH\n\n                                Civil Writ Petition No.11549 of 1992\n                                Date of decision:19.08.2009\n\n\nThe Karnal Central Cooperative Bank Limited, Karnal        ...Petitioner\n\n                                versus\n\nState of Haryana and others                              .....Respondents\n\n\n2.    Civil Writ Petition No.2099 of 1993\n\nThe Karnal Central Cooperative Bank Limited              ...Petitioner\n\n                                versus\n\nThe State of Haryana and others                          ...Respondents.\n\n\n\nCORAM: HON'BLE MR. JUSTICE K.KANNAN\n\nPresent:     Mr. C.B.Goel, Advocate, for the petitioner.\n             Mr. D.S. Nalwa, Additional Advocate General, Haryana.\n             Mr. Y.P.Malik, Advocate, for respondent No.3\n                         -----\n\n1.    Whether reporters of local papers may be allowed to see the\n      judgment ? Yes.\n2.    To be referred to the reporters or not ? Yes.\n3.    Whether the judgment should be reported in the digest ? Yes.\n\nK.Kannan, J.\n<\/pre>\n
1.          In the above two cases even in the absence of counsel for the<\/p>\n
petitioner, arguments of the counsel for the second respondent were<\/p>\n
heard and judgment was pronounced in open Court on 10.08.2009. After<\/p>\n
the judgment was dictated, the learned counsel appearing for the<\/p>\n
petitioner-Bank made an oral submission in Court of his inability to be<\/p>\n
present at the time when the case was taken up and requested for re-<\/p>\n
hearing of the case. He urged that the order dictated on the basis that no
\n Civil Writ Petition No.11549 of 1992                           – 2-<\/span><\/p>\n
recruitment rules were shown to the effect that the Appointing Authority<\/p>\n
had no competence and that the findings rendered in the judgment<\/p>\n
premised on the failure of the workman to bring to the attention of the<\/p>\n
relevant recruitment rules were incorrect and required to be recalled.<\/p>\n
In view of the legal submission with reference to rules which the learned<\/p>\n
counsel for the petitioner wanted to make, I have recalled the order<\/p>\n
passed in open Court on 10.08.2009 and served a notice on both counsel<\/p>\n
to make submissions on 13.08.2009. This judgment is being delivered<\/p>\n
after fresh arguments advanced by the respective counsel of both sides.<\/p>\n
2.          Both the writ petitions are at the instance of the same<\/p>\n
management with reference to engagement of two different workmen.<\/p>\n
By the impugned awards, there had been a direction for reinstatement of<\/p>\n
the workmen with continuity of service and full back wages. The<\/p>\n
management is before this Court challenging the respective awards.<\/p>\n
3.          In Civil Writ Petition No.11549 of 1992, the workman is<\/p>\n
alleged to have been appointed as a Clerk on 03.11.1986, reappointed on<\/p>\n
05.02.1987 and again given a fresh appointment on 06.05.1987, on each<\/p>\n
occasion for a term of 89 days on ad hoc basis. His services were alleged<\/p>\n
to have been terminated on 24.06.1987 before the completion of 240<\/p>\n
days, when the workman had 226 days only. The Labour Court found<\/p>\n
that the management had deliberately terminated his services in order<\/p>\n
that he had not completed 240 days, even when there was work available.<\/p>\n
Rejecting the plea on behalf of the management that the employment had<\/p>\n
been on contract basis for a stipulated time, the Labour Court held<\/p>\n
relying on the decision of this Court reported in 1990(1) LLJ 443 that the
\n Civil Writ Petition No.11549 of 1992                           – 3-<\/span><\/p>\n
provisions of Section 2(oo)(bb) itself could be interpreted as only limited<\/p>\n
to a case where the work itself had been accomplished and the contract<\/p>\n
of appointment of the workman for a specific period was genuine. The<\/p>\n
Labour Court found that it was a regular work in a Bank and the<\/p>\n
management had indulged in unfair labour practice to deliberately hold<\/p>\n
him on employment for 89 days in a stretch with breaks in service to<\/p>\n
defeat the workman from claiming the benefits under the Industrial<\/p>\n
Disputes Act.    The Labour Court found that the management had<\/p>\n
appointed another workman Ram Kishan subsequently and he had been<\/p>\n
retained in service while only the workman was retrenched thereby<\/p>\n
violating the provisions of Section 25-H also.\n<\/p>\n
4.          As regards the case in Civil Writ Petition No.2099 of 1993,<\/p>\n
the workman was alleged to have been appointed as a Clerk for a term of<\/p>\n
89 days on 18.09.1986, again on 16.12.1986 and then on 24.03.1987 and<\/p>\n
his services were terminated on 20.06.1987. The Labour Court found he<\/p>\n
had completed 240 days of service and rejected the contention of the<\/p>\n
management that the termination did not amount to retrenchment by<\/p>\n
application of Section 2(oo)(bb) of the Industrial Disputes Act. The<\/p>\n
Labour Court held that there was no plea of the management that the<\/p>\n
work of a Clerk had come to an end and applying the very same<\/p>\n
judgment referred to above reported in 1990(1) LLJ 443, it had that the<\/p>\n
section was to be limited to the cases where the work had been<\/p>\n
accomplished and the appointment for a specific period was genuine. If<\/p>\n
the work was continuous, the non-renewal of the contract itself was to be<\/p>\n
dubbed as mala fide. Finding that the workman had completed 240 days
\n Civil Writ Petition No.11549 of 1992                           – 4-<\/span><\/p>\n
of service, it held applying the decision of the Hon’ble Supreme Court in<\/p>\n
1981 SCC (L&S) 467, that the retrenchment without complying with<\/p>\n
Section 25-F would be void ab initio and he was declared entitled to be<\/p>\n
reinstated with full back wages.\n<\/p>\n
5.          At the forefront of his argument, the learned counsel<\/p>\n
appearing for the petitioner would submit that the appointment had been<\/p>\n
made by the Managing Director. As per the relevant rules in 9.1 of the<\/p>\n
Haryana State Central Co-operative Bank’s Staff Service (Common<\/p>\n
Cadre) Rules 1975, the authority to make appointments to various posts<\/p>\n
in each category shall vest in the Board, which may delegate all or some<\/p>\n
of its powers to the Administrative Committee or its Manager. To a<\/p>\n
query where there had been any contention in Civil Writ Petition<\/p>\n
No.11549 of 1992 that the Appointing Authority did not have such a<\/p>\n
power, the learned counsel conceded that there was no such averment but<\/p>\n
even if such a provision did not apply, he contended that by virtue of the<\/p>\n
rule 9.4 which applied to appointment by direct recruitment, except in<\/p>\n
cases of ah hoc appointments where the period shall not exceed six<\/p>\n
months, all other appointments were required to be made after prior<\/p>\n
advertisement in at least one leading newspaper and obtaining the names<\/p>\n
of the candidates from Employment Exchange mentioning qualifications<\/p>\n
etc.   According to him, no such advertisement had been issued and<\/p>\n
therefore, the appointment was irregular and a backdoor entry. In Civil<\/p>\n
Writ Petition No.2099 of 1993, the very same management has taken a<\/p>\n
specific plea that the Managing Director did not have a power to appoint<\/p>\n
and the workman had not been filed a reply to the same. The attempt on
\n Civil Writ Petition No.11549 of 1992                           – 5-<\/span><\/p>\n
behalf of the management was, therefore, that in view of the decision of<\/p>\n
the Hon’ble Supreme Court in Secretary, State of Karnataka Versus<\/p>\n
Uma Devi-2006(4) SCC 1, the appointment in public office, which was<\/p>\n
in violation of the recruitment rules would be bad in law and there cannot<\/p>\n
be a direction for reinstatement. The learned counsel for the workman<\/p>\n
would state that his client was not seeking for any regularization as it<\/p>\n
happened in the case of Uma Devi, that he was merely complaining of<\/p>\n
the fact that the termination effected of a workman without notice under<\/p>\n
Section 25-F was bad. The learned counsel for the management would<\/p>\n
persist if the decision of the Hon’ble Supreme Court would not apply, a<\/p>\n
Division Bench of this Court in Divisional Forest Officer, Rohtak<\/p>\n
Versus Jagat Singh and another-2009(2)PLR 586, has held that a daily<\/p>\n
rated worker appointed de hors the rules of recruitment and without<\/p>\n
inviting applications from eligible candidates cannot complain of<\/p>\n
violation of Section 25-F and seek for reinstatement. The judgment was<\/p>\n
also an authority for the proposition, referring to a decision in Jaipur<\/p>\n
Development Authority Versus Ramsahai and another-(2006) 11<\/p>\n
Supreme Court Cases 684, that even if there had been violation of<\/p>\n
Section 25-G, a daily rated worker would not be entitled to<\/p>\n
reinstatement. The Hon’ble Bench of this Court was considering the<\/p>\n
case of the termination of a daily wager whose engagement of service<\/p>\n
had come to an end by virtue of the application under Section 2(oo)(bb)<\/p>\n
of the Act. The learned counsel appearing on behalf of the management<\/p>\n
also refers to a decision in Punjab State Electricity Board Versus<\/p>\n
Darbara Singh-2006 SCC (L&S) 64, that held if an appointment of a
\n Civil Writ Petition No.11549 of 1992                            – 6-<\/span><\/p>\n
daily rated worker was made conditional on the fact that the regular<\/p>\n
employee were to be appointed, his service would come to an end, the<\/p>\n
Hon’ble Supreme Court held the case would be squarely covered by<\/p>\n
Section 2(oo)(bb) and Section 25-F would not be inapplicable.<\/p>\n
6.           In my view, the decision of the Hon’ble Division Bench in<\/p>\n
Jagat Singh’s case as well as the decision of the Hon’ble Supreme Court<\/p>\n
in Punjab State Electricity Board would not apply to this case for those<\/p>\n
decisions dealt with the excepted category that would not fall within the<\/p>\n
definition of ‘retrenchment’ by virtue of Section 2(oo)(bb). In this case,<\/p>\n
we have specific finding rendered by the Labour Court that although the<\/p>\n
Clerks were purported to have been appointed on contract basis, the<\/p>\n
nature of work was such that it did not merely cease on the expiry of 89<\/p>\n
days made at different times and that the engagement had been made for<\/p>\n
period less than 90 days only to prevent the workman from completing<\/p>\n
240 days and to defeat the workman from claiming any benefits under<\/p>\n
the Industrial Disputes Act. In view of a clear finding that Section 2(oo)<\/p>\n
(bb) did not apply and that the work was of a continuous nature and that<\/p>\n
further the management had indulged in unfair labour practice, I find that<\/p>\n
the termination of the workman without resort to Section 25-F was<\/p>\n
illegal and bad.\n<\/p>\n
7.    The issue of reinstatement ought to naturally follow except in this<\/p>\n
case it is brought on record to my notice by a specific pleading in Civil<\/p>\n
Writ Petition No.2099 of 1993, that the person who appointed the<\/p>\n
workman namely the Managing Director did not have authority to<\/p>\n
appoint and that fact was not refuted by reply by the workman. In Civil
\n Civil Writ Petition No.11549 of 1992                           – 7-<\/span><\/p>\n
Writ Petition No.11549 of 1992, there is not even such a plea that the<\/p>\n
workman had been appointed by a person who was not competent to<\/p>\n
appoint. Aware of the predicament of a lack of pleading before the<\/p>\n
Labour Court which if it had been done, it should have been possible for<\/p>\n
the workman to even prove the fact that the Managing Director had been<\/p>\n
delegated with such a power. The learned counsel appearing for the<\/p>\n
management would, therefore, contend even without reference to such<\/p>\n
lack of power, rule 9.4 requires that the employment shall be by<\/p>\n
advertisement for all cases other than ad hoc appointment. It could be<\/p>\n
noticed that the orders of appointment were cited to be ad hoc but we<\/p>\n
have already held that it was a deliberate ploy by the management to<\/p>\n
defeat the workmen from claiming the benefits of the Industrial Disputes<\/p>\n
Act. If it was a non-ad hoc post and the appointment had been made<\/p>\n
without resort to the rules, it shall not be permissible for the workman to<\/p>\n
claim reinstatement. The learned counsel for the workman, however,<\/p>\n
points out that the very same bank had appointed several other persons<\/p>\n
whose cases had been dealt with even in the year 1993 when the order of<\/p>\n
retrenchment by the Labour Court was refused to be interfered with in<\/p>\n
Civil Writ Petition No.2142 of 1993 filed by the very same bank. Nine<\/p>\n
other workmen had the benefit of the services being even subsequently<\/p>\n
regularized but by the only fact that the writ petitions were not taken up<\/p>\n
at the same time, the very same management was taking up a different<\/p>\n
plea denying the competence of the Managing Director to appoint and<\/p>\n
citing illegality of the rules.    Such an action on the part of the<\/p>\n
management is submitted by the learned counsel as discriminatory.
\n Civil Writ Petition No.11549 of 1992                            – 8-<\/span><\/p>\n
8.           If the appointment was bad initially but however, the<\/p>\n
termination of the employment ultimately had been made in violation of<\/p>\n
Section 25-F while at the same time allowing several other persons who<\/p>\n
were appointed in the same fashion to continue in service by allowing<\/p>\n
the decision passed by this Court in Civil Writ Petition No.2142 of 1993<\/p>\n
to become final, the only appropriate benefit that could be extended to<\/p>\n
these two workmen shall be at least compensation for the illegality in<\/p>\n
terminations without reference to Section 25-F. Having regard to the<\/p>\n
long pendency of case and the denial of employment only to the 2<\/p>\n
workmen, while the other persons had been reinstated, the appropriate<\/p>\n
compensation in each case, in my view, shall be Two Lakh rupees.<\/p>\n
9.           The respective awards of the Labour Court which are the<\/p>\n
subject of challenge in the above said two writ petitions, are set aside and<\/p>\n
the workmen shall be entitled only to compensation of Two Lakh rupees<\/p>\n
each in lieu of reinstatement, which shall be paid within six weeks from<\/p>\n
the date of receipt of the copy of this order, failing which the amounts<\/p>\n
shall bear simple interest of 7.5% per annum.\n<\/p>\n
10.          The writ petitions are disposed of as above.\n<\/p>\n<\/p>\n
                                                            (K.KANNAN)
\n                                                               JUDGE
\n19.08.2009
\nsanjeev\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court The Karnal Central Cooperative … vs State Of Haryana And Others on 19 August, 2009 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 […]<\/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-215804","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nThe Karnal Central Cooperative ... vs State Of Haryana And Others on 19 August, 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\/the-karnal-central-cooperative-vs-state-of-haryana-and-others-on-19-august-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Karnal Central Cooperative ... vs State Of Haryana And Others on 19 August, 2009 - 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