Punjab-Haryana High Court
Smith-Klina Beecham vs Geeta Dass Son Of Shri Raja Ram on 9 May, 2012
Author: K. Kannan
Bench: K. Kannan
CWP No.13663 of 1993(O&M) [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No.13663 of 1993(O&M)
Date of Decision: 09.05.2012
Smith-Klina Beecham, Consumer Brands, Nabha (formerly known as
H.M.M.Limited) District Patiala through S.K. Dua, Factory Manager.
... Petitioner
Versus
Geeta Dass son of Shri Raja Ram, resident of village Alloran Kalan, Tehsil
Nabha, District Patiala, and another.
... Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
Present: Mr. Sumit Mahajan, Senior Advocate with
Mr. Amit Kohar, Advocate,
for the petitioner.
Mr. H.S. Bakhshi, Advocate,
for the respondents.
*****
1. Whether reporters of local papers may be allowed to see the
judgment? YES
2. To be referred to the reporters or not? YES
3. Whether the judgment should be reported in the digest? YES
K. KANNAN, J. (Oral)
1. The Management challenges the order directing reinstatement and back wages to workman, who claimed that he had been illegally terminated from service. The complaint was with reference to an engagement that came through an order issued on 25.06.1984 allowing for the petitioner's appointment as a Temporary WRA (Maintenance) on a consolidated salary of ` 15/- per day in terms of the settlement dated 10.03.1983. Before the Labour Court, it was contended by the Management that the petitioner's termination from service was not retrenchment in the eye of law but an automatic termination on the terms of appointment providing for a tenure upto a CWP No.13663 of 1993(O&M) [2] particular date, namely, till 21.08.1984. The non-engagement from 21.08.1984 did not amount, therefore, to retrenchment.
2. The Labour Court observed that it was an admitted case that the petitioner had been engaged on and of 1979 and he held that even if it was for a particular tenure, so long as the termination of service was not by way of punishment then, such termination could be actionable for a person, who complained that juniors had been re-employed and on the period of engagement coming to an end, the Management did not even maintain a register of employees in the order of their seniority to consider them for re- engagement as and when there was an occasion for re-employment.
3. I am of the view that the Labour Court was in error on a fundamental issue that every termination of service that was not in the manner of punishment after inquiry is actionable. Section 2(oo) definition of 'retrenchment' contains an important exception inserted through an amendment made by the Act 49 of 1984 w.e.f. 18.08.1984. Section 2(oo) reads as follows:
"2(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) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age
of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or [(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 CWP No.13663 of 1993(O&M) [3] expiry or of such contract being terminated under a stipulation in that behalf contained therein; or]
(c) termination of the service of a workman on the ground of continued ill-health;]"
This amendment was actually to conform to the existing state of law, which was applied in several Courts and since there was not a uniform understanding of this provision, the statutory amendment was brought. In this case, the appointment is upto a period of 21.08.1984 and by that time, in any event, the amendment had been brought introducing Section 2(bb) to Section 2(oo). There could be instances where the employer would deliberately provide for limited periods of engagement with artificial breaks to prevent continuity of service. There was not even such a plea that the engagement for a short period was a device to prevent the employee from obtaining continuity of service. The statement of claim filed before the Court will show that the petitioner was complaining of unlawful termination of service without notice on 22.08.1984. If it is translated in legal parlance, it would mean that the workman was complaining of an illegal termination without notice as contemplated under Section 25F, insofar as there was a prayer for reinstatement and re-employment. Section 25F only. Section 25F benefit is possible only to persons, who had completed 240 days of continuous service as defined under Section 25B of the ID Act. Learned counsel appearing on behalf of the workman is prepared to state that there was no such attempt to prove continuous service of 240 days.
4. The counsel, however, would argue that even if the reinstatement is not possible under Section 25F, the employer could not be permitted to pick and choose the persons, who were re-employed at their whims without CWP No.13663 of 1993(O&M) [4] preparing a register of seniority in the manner contemplated under Section 25H. Assuming for a moment that the claim statement was not for reinstatement but for re-employment in the manner contemplated under Section 25H even then, the provision would be attracted only if there was a case of retrenchment defined under Section 2(oo). I have already seen that there existed no retrenchment in the manner defined and, therefore, the application of Section 25H did not arise at all. The Labour Court had found fault with the conduct and attitude of the employer in allowing for temporary workman to collect outside the gate and the practice of the employer in allowing for re-employment without minding the seniority and appointing even juniors to the workman, who was complaining of wrongful termination. In the first place, I have not the evidence that they were juniors, who were re- appointed. In any event, it is irrelevant for a consideration of a case where the employment came after a settlement that recognized two classes of persons; one permanent and another, temporary. The settlement also recorded a fact that there were 600 permanent workmen and admittedly, the petitioner was not one of them. He was a temporary workman admittedly and if that temporary engagement was for a contingency for a particular period then, it is inevitably on the completion of that tenure the service ought to automatically come to an end and stand terminated. In such a situation the claim for reinstatement and back wages simply did not arise.
5. The impugned order is contrary to law and consequently, set aside. The writ petition is allowed.
9th May, 2012 ( K. KANNAN ) rajan JUDGE