State of Haryana vs Shri Hari Pal and Another

G.S. Sandhawalia, J.—The present writ petition is directed against the award dated 2.4.1993 passed by the Presiding Officer, Industrial Tribunal-cum-Labour Court, Rohtak vide which respondent no. 1 has been held to be entitled to reinstatement with continuity of service and full back wages. The legal issue which arises for consideration is that a person who was appointed against leave vacancy and his service were terminated on joining of regular employee against whom he was appointed would be entitled for reinstatement on the ground that he had worked 240 days and, therefore, whether the procedure u/s 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act") had to be followed or not.

Section 2(oo)(bb) of the Act provides that where service of a workman as a result of the renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf would not amount to retrenchment.

The facts in the present case are that respondent was appointed as Peon-cum-Chowkidar on a fixed salary of Rs. 500/- on 21.3.1984 and he continued to work till 1.3.1985 and thereafter his services were terminated. He raised demand for his reinstatement on 3.11.1988 which was rejected by the Labour Department on 28.2.1989 on the ground that such a demand was being made after four years and was not justified. However, on 18.1.1990, the matter was referred to the Labour Court as to whether the termination of services of the workman were justified and in order and if not to what relief he was entitled?

The management contested the claim mainly on the ground that he was appointed as Peon-cum-Chowkidar by the Sub Divisional Education Officer, Rohtak against leave vacancy of Ram Parkash, Peon-cum-Chowkidar in the pay scale of Rs. 300-430/-. On 1.3.1985 said Ram Parkash joined his duty after availing his leave and thereafter, the petitioner was relieved as per terms and conditions of his appointment letter and, therefore, no notice was required to be given to him before his relieving. The other pleas were also taken that the Education Department was not an industry and the case of the petitioner was governed by the Punjab Civil Services Rules as applicable to the State of Haryana.

The Labour Court after taking into consideration the evidence of the workman and the management witness MW-1 Jagat Singh, Head Master came to the finding that the workman was appointed as Peon-cum-Chowkidar with the management against leave vacancy of Ram Parkash, and had completed 240 days of service preceding 12 calendar months from the date of his termination. Therefore, the defence that the action did not amount to retrenchment as defined in Section 2(oo)(bb) of the Act, was repelled on the strength of the judgment of this Court in Municipal Committee Vs. Labour Court and Another, and accordingly the Labour Court came to the conclusion that even if person has been appointed against the leave vacancy then the termination would amount to retrenchment. Therefore, the procedure u/s 25-F of the Act having not been complied with, the said retrenchment was held to be illegal and void. Accordingly, the workman was given the benefit of reinstatement with continuity of service and full back wages and the reference was accordingly answered.

The operation of the impugned award was stayed by a Division Bench of this Court on 4.6.1993 and thereafter an application was filed for vacation of stay. The said order was made absolute subject to the provisions of Section 17-B of the Act. However, it was ordered that the workman shall not be paid any wages for the period from 13.12.1985 to 16.4.1986, the period during which he remained gainfully employed. Accordingly, wages in terms of Section 17-B of the Act would be paid to him, if he filed an affidavit that he was not gainfully employed during the relevant period.

Notice of the present writ petition thereafter was also sent to the respondent no. 1-workman vide order dated 31.10.2011. Office report shows that respondent no. 1-workman has been duly served but none has put in appearance on his behalf.

A perusal of Section 2(oo)(bb) of the Act would go on to show that exceptions have been provided under the said provisions wherein termination of the employee would not amount to retrenchment. Exception (bb) provides that where the termination of the service of the workman as a result of non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein, then in such a case termination would not amount to retrenchment as per the Act itself. Section 2(oo)(bb) of the Act reads as under:-

Definitions:- In this Act, unless there is anything repugnant in the subject or context:-

(oo) "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include:-

(a) xxx xxx xxx

(b) xxx xxx xxx

(bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein or

(c) xxx xxx xxx

From the facts of the present case, it would be clear that the appointment of respondent No. 1 was only against a leave vacancy of one Ram Parkash, Peon-cum-Chowkidar. The moment said Ram Parkash joined his duty, services of respondent no. 1 were dispensed with on 1.3.1985. In such circumstances, the Labour Court did not examine the said provisions even though a specific defence had been raised and, thus, had committed grave illegality. Though the Labour Court had relied upon a judgment of this Court in Municipal Committee, Amloh''s case (supra), on reading of the said judgment which also pertains to leave vacancy would go on to show that the provisions of Section 2(oo)(bb) of the Act were never a subject matter of consideration.

The Hon''ble Supreme Court in Municipal Council, Samrala Vs. Raj Kumar 2006(3) SCC 81 had occasion to deal with this issue. In the said case, in similar circumstances post was vacant as some employees were on leave and the workman Raj Kumar was employed in such circumstances on contract basis. His services were later on dispensed with and the Labour Court passed a direction for reinstatement with 25% back wages. The said award was upheld by this Court. The appeal filed by the management was allowed after discussing the provisions of Section 2(oo)(bb) of the Act. It was held as under:-

Clause (oo)(bb) of Section 2 contains an exception. It is in two parts. The first part contemplates termination of service of the workman as a result of the non-renewal of the contract of employment or on its expiry; whereas the second part postulates termination of such contract of employment in terms of stipulation contained in that behalf. The learned Presiding Officer of the Labour Court as also the High Court arrived at their respective findings upon taking into consideration the first part of Section 2(oo)(bb) and not the second part thereof. The circumstances in which the respondent came to be appointed have been noticed by us hereinbefore.

The appellant is a Municipal Council. It is governed by the provisions of a statute. The matter relating to the appointment of employees as also the terms and conditions of their services indisputably are governed by the provisions of the relevant Municipal Act and/or the rules framed thereunder. Furthermore, there is no doubt that the matter relating to the employment in the Municipal Council should be governed by the statutory provisions and thus such offer of appointment must be made by a person authorised therefor. The agenda in question was placed before the Executive Council with a view to obtain requisite direction from it where for the said letter was written. The reason for such appointment on contract basis has explicitly been stated therein, namely, that one post was vacant and two employees were on leave and in that view of the matter, services of a person were immediately required in the Council. Thus, keeping in view the exigency of the situation, the respondent came to be appointed on the terms and conditions approved by the Municipal Council.

xxx xxx xxx

There is neither any doubt nor any dispute that the terms and conditions contained in the offer of appointment on both the spells were the same. So far as the employment of a person in a Municipal Council which is "State" in the meaning of Article 12 is concerned, the same must be done in terms of the provisions of the statute and/or rules framed thereunder. The respondent therefore was not appointed on a permanent or a temporary basis. It is not the case of the respondent that while making an offer of appointment, the Municipal Council had complied with the requirements laid down in the statute or statutory rules or even otherwise the same was in conformity with Articles 14 and 16 of the Constitution.

For the reasons aforementioned we are of the opinion that the instant case is covered by the second part of Section 2(oo)(bb) of the said Act.

The facts of the present case are also similar to the aforesaid case and controversy in the present case is covered under the said decision. As discussed above, once the appointment of the workman was only against the leave vacancy and the person against whose leave vacancy the workman was appointed joined back on his duty, the services of the workman were dispensed with. In such circumstances, the case of the workman would be covered under the exception provided u/s 2(oo)(bb) of the Act and it could not amount to retrenchment and there would be no violation of Section 25-F of the Act as has been held by the Hon''ble Supreme Court in Municipal Council, Samrala''s case (supra). Accordingly, the impugned award of the labour Court which suffers from illegality and irregularity is set aside and the present writ petition is allowed.