Punjab-Haryana High Court
The Faridabad Complex Administration vs The Presiding Officers, Industrial ... on 6 January, 1997
Equivalent citations: (1997)117PLR147
Author: R.L. Anand
Bench: R.L. Anand
JUDGMENT R.L. Anand, J.
1. The Faridabad Complex Administration, Faridabad, through its Chief Administrator, has filed the present-writ petition under Articles 226/227 of the Constitution of India for quashing the impugned award passed by respondent No.1, in reference No. 313 of 1979, dated 3.12.1980, published in Haryana Govt. Gazette dated 3.2.1981 (Annexure P.2) against Remphal son of Rameshwar Dass, Ex. Fireman.
2. It has been alleged by the petitioner that respondent No.2 Ram Phal was appointed to the post of Fireman in the Faridabad Complex Administration on 30.7.1975 vide appointment letter of even date, Annexure P.1 In accordance with the terms and conditions of the appointment respondent No.2 was appointed on probation for a period of two years w.e.f. the dale of joining of his service without assigning any reason or notice. It was also provided in the appointment letter that respondent No.2 would be governed by the Haryana Civil Services Rules to the ex tent enforced by the then Municipal Committee and other Rules framed and adopted from time to time by Faridabad Complex Administration. In pursuance of the said appointment letter, respondent No.2 joined his duties on 4.8.1975. The services of respondent No.2 were terminated in accordance with the terms and conditions of the said appointment letter. During the probation period without assigning any reason in accordance with the terms and conditions of the appointment letter on 25.8.77. Respondent No.2 moved the appropriate Govt. for referring the dispute regarding termination of services to the Labour Court under Section 10 of the Industrial Disputes Act, and the Labour Court gave the impugned award dated 3.12.1980 which was published in the Haryana Govt. Gazette dated 3.2.1981. The challenge to the said award has been given by the petitioner on the grounds that the Labour Court committed a legal error while interpreting the provisions of Section 2(oo) of the Industrial Dispute Act. According to the petitioner, respondent No.2 was appointed on probation for 2 years and his services were governed by Haryana Civil Services Rules as applicable to the employees of Faridabad Complex Ad ministration and the services of the workman had been terminated on the ground of unsatisfactory record during probation period. The petitioner was fully justified in terminating the services of respondent No.2 during probation period without assigning any reason in terms of the conditions of appointment letter. This aspect of the case has not been rightly appreciated by the Labour Court in the impugned award. In the given circumstance of the case, the provisions of Section 25-F of Industrial Disputes Act were not applicable and with the passing of the impugned award An nexure P.2 which is illegal and void, a serious prejudice has been caused to the petitioner.
3. Notice of the writ petition was given to the respondents. No written reply has been filed to the writ petition which is being disposed of with the assistance of Mr. Gopi Chand, appearing on behalf of the petitioner and Mr. K.S. Kanwar, Advocate, who gave appearance on behalf of the respondents.
4. The case set up by the petitioner is that the services of the respondent No.2 can be on probation for a period of 2 years. On account of the unsatisfactory performance of respondent No.2, his services were terminated as per the terms of appointment letter and this action on the part of the petitioner does not amount to retrenchment within the meaning of Section 2(oo) of the Industrial Disputes Act. Rather proviso of Section 2(oo) would be applicable to the present case and it does not amount to retrenchment and, therefore, the provisions of Section 25-F of the Industrial Disputes Act are not applicable. Annexure P.1 is the letter of appointment which would show that respondent No.2 was appointed as Fireman and it was specifically mentioned that his services will be on probation for a period of 2 years w.e.f. the date of joining the service. This letter further contemplates that services of respondent No.2 could be terminated during the period of probation without any reason or notice with immediate effect. Respondent No.2 accepted the terms of the appointment letter. The Labour Court has not dealt with this aspect in the award but has proceeded from a different angle by holding that the workman was in the employment of management from July, 1975 up to 25.8.1977 and that he had completed more than 2 years of service. Therefore, the provisions of Section 25-F of the Industrial Disputes Act are applicable and compliance of the same has not been done by the management and the action on the part of the management in terminating the services of the workman was bad in law and accordingly it was set aside. It may be useful for me to refer to the operative portion of the award passed by the Labour Court which runs as follows;-
"I have gone through the document produced by the parties. I find that the workman was in the employment of the management from July, 1975 and till 25th August, 1977. It is admitted by the parties that the workman had continued in service of more than two years. As regards the status of the workman that he was probationer and still unconfirmed makes no difference under the Industrial Disputes Act because according to Section 2(s) "Workman" means:-
"Any person (including an apprentice) employed in any industry to do any skilled or unskilled, manual, supervisory technical or clerical work for hire or on reward, whether the terms of employment be expressed or implied and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, Discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge, or retrenchment has led to that dispute" Ruling cited by the representative for the workman was fully applicable to the present case. Their Lordships of the Supreme Court have held:-
"If the definition of "retrenchment" is looked at unaided and unhampered by precedent, one is at once struck by the remarkably wide language employed and particularly by the use of the words "termination".....for any reason whatsoever". The definition expressly excludes termination of service as a "punishment inflicted by way of disciplinary action". The definition does not include, so it expressly says, voluntary retirement of a workman or retrenchment of the workmen on reaching the age of superannuation or termination of the service of the workmen on the ground of continuous ill health. Voluntary retirement of a workman or retrenchment of the workman on reaching the age of superannuation can hardly be described as termination, by the employer of the service of a workman. Yet the Legislature took special care to mention that they were not included within the meaning of "termination by the employer of the service" of a workman for any reason whatsoever". This is admitted fact that the workman had completed more than 240 days of service as provided by Section 25(F) but the compliance of the same was not done by the management. Therefore, their action in terminating the services was bad in law. I set aside the termination of the workman and order his reinstatement with continuity of service with full back wages".
5. The above operative portion of the award would show that the Labour Court fell in patent error and did not appreciate the provisions of Section 2(oo)(bb) of the Industrial Disputes Act, which lays down that a retrenchment does not include if the workman had been terminated from services as a result of non-renewal of contract of employment between the employer and workman concerned on its expiry or that such contract being terminated under a stipulation in that behalf contained therein. If this condition of Section 2(oo)(bb) is satisfied it does not amount to retrenchment. In this regard a reference of the appointment letter Annexure P.1 can be made. The petitioner was placed on probation for a period of two years. He joined the duties on 4.8.1975. His contract of service was not renewed and he stood relieved from service w.e.f. 25.8.77 and in this manner the case of the workman fell within the provisions of Section 2(oo)(bb) of the Industrial Disputes Act irrespective of the fact that the respondent had served for few days more than that of two years. Once the services of respondent No.2 had been terminated in accordance with the contract of service, the provision of Section 25-F of the Industrial Disputes Act would not come into play. The action on the part of the management was within its domain and a great prejudice has been caused to the management with the passing of the impugned award dated 3.12.1980 which is hereby set aside and it is held that the services of respondent No.2 had been rightly terminated by the management in accordance with the provisions of Section 2(oo)(bb) of the Industrial Disputes Act and respondent No.2 was not entitled to any retrenchment compensation nor he was entitled to be reinstated into service.
6. Resultantly, the writ petition is hereby allowed and the impugned award Annexure P.2 is hereby set aside with no order as to costs.