Guru Nanak Dev University vs Presiding Officer

Gurmeet Singh Sandhawalia, J.

Civil Misc. No. 17993 of 2013

With the consent of the counsel for the parties, the main case is taken up for hearing. Therefore, no separate order is required to be passed on the application under Section 17-B.

Civil Writ Petition No. 6385 of 1999.

The present writ petition has been filed by the University challenging the order dated 16.4.1998 whereby respondent No. 2-work-man was reinstated with continuity of service but as regards back wages, the workmen was held entitled only 25% back wages from the date of demand notice dated 3.10.1988 (Annexure P-6).

1A. Counsel for the petitioner has vehemently submitted that case is covered under the provisions of Section 2(oo)(bb) of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act") and retrenchment would not include termination of the services of the workman where it is result of non-renewal of the employment. Accordingly, he placed reliance upon the judgment of this Court in Kuldip Singh Mazdoor Sangh v. Presiding Officer, Labour Court, Gurdaspur and others, 2009 (3) RSJ 1 and a Division Bench judgment of this Court in Director, Central Sheep Breeding Farm, Hisar v. President, District Agriculture Workers Union, Hisar and another, 2008 (3) RSJ 552.

On the contrary counsel appearing on behalf of the workman has relied upon the judgment of Hon''ble Apex Court in Devinder Singh Vs. Municipal Council, Sanaur, and Anoop Sharma Vs. Executive Engineer, Public Health Division No. 1 Panipat (Haryana), to contend that the Labour Court has not to see the source of employment and method of recruitment is not to be taken into account.

The facts of the present case make interesting reading and to adjudicate the said issue, it is necessary to dwell deep into the same to find out as to whether the management''s plea under Section 2(oo)(bb) of the Act would be applicable in the facts and circumstances of the present case and as to whether the management was entitled for protection on the ground that termination could not amount to retrenchment in terms of the appointment letter. There is no denying to the fact that the petitioner was appointed vide appointment letter dated 22.4.1987 with effect from 1.4.1987. The appointment letter specifically mentioned that the workman was appointed as attendant in the office of Pro Vice-Chancellor. The letter reads as under:--

"Sub: Appointment as Attendant

You are hereby offered the post of Attendant in the office of the Pro Vice-Chancellor Guru Nanak Dev University, Amritsar on the following terms and conditions:--

You will draw a starting pay of Rs. 300/- p.m. (Rs. Three hundred only) in the pay scale of Rs. 300-5-325/5/-350/10-430 plus allowances as admissible from time to time.

Your appointment is purely temporary on ad hoc basis for a period of six months. Your services can be terminated at any time without any notice.

Your appointment will take effect from the date i.e. 1.4.1987 F.N.

The proforma for Medical Certificate of fitness is enclosed. The same may please be sent to this office after your Medical check up from the University Medical Officer, Guru Nanak Dev University, Amritsar."

It is a matter of fact that in pursuance of the said letter of appointment, the appointment of the workman was extended from 5.10.1987 to 4.4.1988 vide Annexure P/2 (R/2) dated 6.10.1987 which was further extended upto 5.10.1988 on 4.4.1988 (Annexure P-3). However, during the pendency of the said 3rd extension, the term of the Pro Vice-Chancellor expired and vide letter dated 10.9.1988-Annexure P/4 (Annexure R/5), the workman was relieved from duty. The said order reads as under:--

"Consequent upon the expiry of term of the Pro Vice-Chancellor on 10th September, Shri Bhagat Singh, Attendant at the residence of the Pro Vice-Chancellor, is hereby relieved of from his duty with effect from 10.9.1988 (A.N.)."

Thus, from the above said order, it is clear that the workman was retrenched from service and stand of the petitioner university that vide subsequent order dated 1.12.1988, the earlier order was cancelled and he was only relieved on 5.10.1988 as per his order dated 4.4.1988 is without any basis. The Labour Court has correctly analysed and scanned the facts and noticed that demand notice dated 3.10.1988 (Annexure P/6) was served upon the petitioner university. Then Amarjit Singh, Clerk had appeared before the Labour-cum-Conciliation Officer on 28.10.1988 and 9.12.1988 and made a statement that on account of abolition of the post on 10.9.1988, the services of the workman were dispensed with on that day. Once that had been done, it would not lie in the mouth of the university to say that the workman was not retrenched and dispensing with of his services on 10.9.1988 was in terms of his appointment letter dated 22.4.1987 (Annexure P/1). It is also further relevant to mention that as per the appointment letter it is no where provided that the post was to be co-terminus with the post of the Pro Vice-Chancellor and, therefore, it cannot be said that provisions of Section 2(oo)(bb) of the Act would be attracted as so much so that there was such a contract in the appointment letter which provided that the case would fall within the exception and would not amount to retrenchment. This Court is of the opinion that the Labour Court has correctly examined the issue in detail by lifting the veil and has come to a rightful conclusion that being aware of the legal consequences, the subsequent letter was thereafter issued on 1.12.1988 Annexure P/5 (R/6) whereby earlier order retrenching him was cancelled and he was thereafter relieved as per the terms of extension letter dated 4.4.1988. The letter dated 1.12.1988 reads as under:--

"The order with regard to termination of service of Sh. Bhagat Singh, Attendant which were issued vide Endst. No. 14743-50/Estt dated 12.9.1988 vide which he was relieved from service on 10.9.88 (afternoon) from the university are hereby cancelled and in place of the same, he is being relieved from the service of the University on 5.10.1988 (afternoon).

Amritsar, dated 1.12.1988 Registrar"

The fact that the workman was paid the amount subsequently only in March, 1989 by the bill (R/7) would further support the conclusion arrived at by the Labour Court that the act of the university amounted to retrenchment and cannot be faulted with. The judgment in Kuldip Singh Mazdoor Sangh''s case (supra) winch has been relied upon is of no help and rather is against the University. In the said case reference had been answered against the workman. This Court noticed that the workman worked for one year and accordingly thought it appropriate to grant compensation of Rs. 20,000/- to settle equities between the parties. Rather the said judgment goes against the University since in the said case, the termination was on account of workman not participating in the sport event which he was required to do and was found to be totally unjustified as no intimation had been given to him to that effect. Rather it was found that the termination order itself was held not to be inconsonance with the condition as envisaged in the order of appointment and provisions of Section 2(oo)(bb) of the Act would not be attracted.

Similarly reliance upon Director, Central Sheep Breeding Farm''s case (supra) in which it has been observed that the workman not recruited through Employment Exchange or by issuing an advertisement in a newspaper and appointment given de hors the rules and regularisation is liable to be terminated and is covered under Section 2(oo)(bb) of the Act and does not amount to retrenchment is also of no avail because the Hon''ble Supreme Court subsequently in Anoop Sharma''s case (supra) has observed that it is not a consideration which is to be taken into while deciding the issue by the High Court under Industrial Disputes Act, 1947. Reliance on the observations that the workman was engaged on ad hoc basis without following the statutory rules also cannot be taken note of in view of the observations of the Hon''ble Apex Court in Anoop Sharma''s case (supra) subsequently wherein it has been held that whether the appointments were casual, daily wage, temporary or ad hoc, the same should not influence the decision of the High Court while dealing with the award of the Labour Court. Relevant observations of the Apex Court read as under:--

The judgment of the Constitution Bench in Secretary, State of Karnataka and Others Vs. Umadevi and Others, and other decisions in which this Court considered the right of casual, daily wage, temporary and ad hoc employees to be regularised/continued in service or paid salary in the regular time scale, appears to have unduly influenced the High Court''s approach in dealing with the appellant''s challenge to the award of the Labour Court. In our view, none of those judgments has any bearing on the interpretation of Section 25-F of the Act and employer''s obligation to comply with the conditions enumerated in that Section.

At the cost of repetition, we consider it necessary to mention that it was not the pleaded case of the respondent before the Labour Court and even before the High Court that the appellant was engaged/employed without following the statutory rules or Articles 14 and 16 of the Constitution and that was the basis for discontinuing his engagement. Therefore, the High Court was not justified in relying upon the alleged illegality of the engagement/employment of the appellant for upsetting the award of reinstatement."

Rather in Devinder Singh Vs. Municipal Council, Sanaur, wherein the Labour Court had rejected the plea of termination of the appellants service being covered under Section 2(oo)(bb) of the Act was set aside by the Division Bench of this Court after placing reliance upon the Secretary, State of Karnataka and Others Vs. Umadevi and Others, . The Hon''ble Apex Court set aside the judgment of the Division Bench by holding that the definition of the term "retrenchment" is quite comprehensive and covers every type of termination and mode of employment is not relevant. The relevant observations read as under:--

The definition of the term "retrenchment" is quite comprehensive. It covers every type of termination of the service of a workman by the employer for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action. The cases of voluntary retirement of the workman, retirement on reaching the age of superannuation, termination of service as a result of non-renewal of the contract of employment or of such contract being terminated under a stipulation contained therein or termination of the service of a workman on the ground of continued ill health also do not fall within the ambit of retrenchment.

xxx xxx xxx

Section 2(s) contains an exhaustive definition of the term ''workman''. The definition takes within its ambit any person including an apprentice employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward and it is immaterial that the terms of employment are not reduced into writing. The definition also includes a person, who has been dismissed, discharged or retrenched in connection with an industrial dispute or as a consequence of such dispute or whose dismissal, discharge or retrenchment has led to that dispute. The last segment of the definition specifies certain exclusions. A person to whom the Air Force Act, 1950, or the Army Act, 1950, or the Navy Act, 1957, is applicable or who is employed in the police service as an officer or other employee of a prison or who is employed mainly in managerial or administrative capacity or who is employed in a supervisory capacity and is drawing specified wages per mensem or exercises mainly managerial functions does not fall within the definition of the term ''workman''.

The source of employment, the method of recruitment, the terms and conditions of employment/contract of service, the quantum of wages/pay and the mode of payment are not at all relevant for deciding whether or not a person is a workman within the meaning of Section 2(s) of the Act.

It is apposite to observe that the definition of workman also does not make any distinction between full time and part time employee or a person appointed on contract basis. There is nothing in the plain language of Section 2(s) from which it can be inferred that only a person employed on regular basis or a person employed for doing whole time job is a workman and the one employed on temporary, part time or contract basis on fixed wages or as a casual employee or for doing duty for fixed hours is not a workman.

Whenever an employer challenges the maintainability of industrial dispute on the ground that the employee is not a workman within the meaning of Section 2 of the Act, what the Labour Court/Industrial Tribunal is required to consider is whether the person is employed in an industry for hire or reward for doing manual, unskilled, skilled, operational, technical or clerical work in an industry. Once the test of employment for hire or reward for doing the specified type of work is satisfied, the employee would fall within the definition of ''workman''."

Reference can also be made to judgment of Harjinder Singh Vs. Punjab State Warehousing Corporation, , which allowing the appeal against the Division Bench judgment of this Court. The Hon''ble Apex Court laid down the principles regarding the jurisdiction of this Court for interfering with the orders of the Labour Court and accordingly held that this Court is not to sit as a Court of appeal and only where the jurisdiction had been exercised where there was none and where there was a patent error of law committed, award was to be interfered with. The submission that the appointment had made in contravention of the Regulations and in violation of Articles 14 and 16 of the Constitution of India were not to be taken into consideration while deciding the dispute between the workman and the management. The relevant observations read as under:--

"A reading of the impugned order shows that the learned single Judge did not find a jurisdiction error in the award of the Labour Court. He also did not found that the award was vitiated by any error of law apparent on the face of the record or that there was violation of rules of natural justice. As a matter of fact, the learned single Judge rejected the argument of the corporation that termination of the appellant''s service falls within the ambit of Section 2(oo)(bb) of the Act, and expressed unequivocal agreement with the Court that the action taken by the Managing Director of corporation was, contrary to Section 23-G of the Act which embodies the rule of Last Come First Go. Notwithstanding this, the learned single Judge substituted the award of reinstatement of the appellant with compensation of Rs. 87,582/- by assuming that appellant was initially appointed without complying with the equality clause enshrined in Articles 14 and 16 of the Constitution of India and the relevant regulations. While doing so, the learned single Judge failed to notice that in the reply filed on behalf of the corporation before the Labour Court, the appellant''s claim for reinstatement with back wages was not resisted on the ground that his initial appointment was illegal or unconstitutional and that neither any evidence was produced nor any argument was advanced in that regard. Therefore, the Labour Court did not get any opportunity to consider the issue whether reinstatement should be denied to the appellant by applying the new jurisprudence developed by the superior courts in recent years that the court should not pass an award which may result in perpetuation of illegality. This being the position, the learned single Judge was not at all justified in entertaining the new plea raised on behalf of the corporation for the first time during the course of arguments and over turn an otherwise well reasoned award passed by the Labour Court and deprive the appellant of what may be the only source of his own sustenance and that of his family."

It is, however, pertinent to mention that the Labour Court has granted back wages only to the extent of 25% from 3.10.1988 till the reinstatement of the workman and, thus, protected the interest of the petitioner University also. Even the workman would have been entitled to full back wages keeping in view the law laid down by the Apex Court in Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D. Ed.) and Others, wherein it has been held that due to the illegal action of the management, workman should not suffer since he was kept out of employment for the said period and, thus, equity has been balanced inter-se the parties.

Accordingly, keeping in view the above binding precedents of the Hon''ble Apex Court, this Court is of the opinion that there is no scope for interference with the well reasoned award passed by the Labour Court. Accordingly, the writ petition is dismissed.