State of Punjab vs Kuldip Kaur

S.S. Sudhalkar, J.—This writ petition has been filed by the employer-State challenging the award of the Labour Court dated 23.3.1998, copy Annexure P/1, vide which respondent No. 1 was ordered to be re-instated in service with continuity thereof and full back wages.

The case of the respondent is that she was working as Lady Attendant with the petitioners from 9.4.1992 upto 16.6.1994 and was getting Rs. 1691/-per month. She was relieved from the post on 17.6.1994. Juniors to her were retained and new hands were taken in service after her service was terminated. This contention is not admitted by the petitioners. Amongst the other defences taken by the petitioners, the petitioners have stated that the respondent-workman had served the petitioners from 16.4.1992 upto 16.6.1994 and her service was purely on temporary ad hoc basis for 89 days which was extended from time to time and order dispensing her service was issued on 8.6.1994 was served on 17.6.1994 and that the said order is legal.

It is not in dispute that the span of period for which respondent worked is of more than 240 days. The petitioners have taken up a contention that because service of the respondent was temporary and her appointment was as per the appointment orders of 89 days, she could not challenge the termination.

The Labour Court has observed that this is a case of unfair labour practice because she was continuing for a long period with the orders of 89 days appointment.

The learned Counsel for the petitioners has argued that this is not the case of unfair labour practice. Counsel for the respondent argued that as the respondent has completed 240 days of service, she is entitled for the protection under the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act").

Various authorities have been cited by the counsel. Counsel for the respondent has relied on Bhikku Ram v. The Presiding Officer; Industrial Tribunal-cum-Labour Court, Rohtak, 1998 (1) RSJ 703. It has been held by a Division Bench of this Court that if the appointment of the workman for a period of 89 days in the first instance and he was terminated after that period, the re-employment cannot be considered on same terms; and that it was established on record that the petitioner had served for about three years the work against which he was engaged was not of a specified nature or of fixed duration and did not cease to exist on the date of termination. It was held that employer has not exercised his right to terminate the service of the workman in good faith. It is further held that merely because the workman accepted the oppressive, unreasonable and arbitrary conditions of service, he cannot be denied relief despite the fact that the employer committed a patent violation of Section 25-F of the Industrial Disputes Act. The learned Counsel also relied on the case of Simla Devi v. Presiding Officer, Labour Court, Bathinda and Ors., 1998(2) SCT 72 (P&H)(DB) : 1998(2) RSJ 55. The workman in that case had worked for a period of 240 days in 12 months preceding the date of termination of her service. The employer contended that the workman had worked for a specified period and her services stood automatically termianted. It is also a judgment of a Division Bench of this court. This Court held that the employer had not produced any evidence to show that the workman had been engaged for doing a specified job and her services came to an end on the completion of that job. It was held that the workman had been deliberately given break in service with a view to avoid compliance of the provisions of the Act and that the services were terminated on the pretext of contract of non-extension of the term of employment. On the above grounds, this Court found that the impugned order passed by the Labour Court against the workman suffers from error of law on the face of it.

Another case cited by the learned Counsel for the petitioner is of Administrator, Municipal Committee v. Presiding Officer, Labour Court, 1998(3) SCT 57 (P&H)(DB) ; 1998(3) RSJ 144, In that case a Division Bench of this Court held that the source of employment or the period in service, the order of employment, wages and the lenght of period, do not have any significance for determining whether or not a person falls within the definition of workman. A Division Bench of this Court in the case of Gordhan Singh Gulia v. State of Haryana, 1996(3) SCT 412 held that termination of ad hoc employee on expiry of his term of appointment as per conditions in his appointment letter when the posts are existing and persons are required to work on such posts, termination was illegal. It was held that such a condition and the interpretation of the said condition that on the date upto the date of appointment, the service automatically came to an end, or that he would stand relieved, was arbitrary, oppressive, unconscionable and unconstitutional.

In view of the above mentioned position of law, the contention of the petitioner that the respondent''s service was for a period of 89 days only and that she could not challenge her termination is rightly not accepted by the Labour Court. It is not the case of the petitioner that appointment was upto the period of filling up the posts till regular appointments are made. An employer by incorporating such a condition cannot take advantage of the fact that the condition has been accepted by the workman.

No other point has been urged.

In view of the above reasons, I find that this writ petition is without merit. Hence, it is dismissed.

Petition dismissed.