Punjab-Haryana High Court
Jasbir Singh vs Presiding Officer Industrial Tribunal ... on 26 August, 2014
Author: G.S.Sandhawalia
Bench: G.S.Sandhawalia
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No. 17363 of 2014
Date of decision: 26.08.2014
Jasbir Singh ...Petitioner(s)
Versus
Presiding Officer, Industrial Tribunal, Patiala and others
...Respondent(s)
CORAM: HON'BLE MR. JUSTICE G.S.SANDHAWALIA
Present: Mr. N.K. Nagar, Advocate,
for the petitioner.
G.S.SANDHAWALIA, J. (Oral)
The present writ petition has been filed challenging the Award dated 11.02.2014 (Annexure P-18) passed by the Industrial Tribunal, Patiala whereby, the reference was decided against him on the ground that his appointment was for a fixed term and his services were discontinued after completion of the fixed period.
Counsel for the petitioner has vehemently argued that the petitioner was appointed through a proper selection process and persons junior to him, who were appointed after him, have been retained in service and thereafter been regularized and, therefore, the Labour Court has failed to take into consideration the provisions of Sections 25-G and 25-H of the Industrial Disputes Act, 1947 (in short 'the Act').
A perusal of the paper book would go on to show that the petitioner was appointed as a Clerk-cum-Typist on 21.03.1983 (Annexure P-4) by the Selection Board on ad hoc basis against a temporary leave vacancy for a period of 3 months. He was relieved on 21.09.1983 and a demand notice was issued on 29.11.2003, after more than 20 years. Gupta Shivani 2014.09.01 15:19 I attest to the accuracy and integrity of this document Chandigarh
In his statement of claim, his claim was that he had worked against one Daljinder Singh, Clerk-cum-Typist and the said person had never attended the duty thereafter and, therefore, the work and conduct of the petitioner being satisfactory, his services were wrongly terminated without following proper procedure, issuing show cause notice, charge sheet, inquiry etc. Sunita Rani, Meena Gupta and Naresh Kumari were appointed after him and they have been retained and regularized and thus, there was violation of Sections 25-G and 25-H of the Act. He had made several representations to the higher Authorities but no reply had been received. His wife had remained under treatment of various authorized Medical Practitioners/Doctors from the period from 1986 to 2004 and had remained in depression.
The defence of the department was that dispute was raised after more than 20 years and the workman had never completed 240 days. The appointment was for a period of 3 months on temporary basis against a leave vacancy. Sunita Rani had joined on 01.03.1983, well before the appointment of the applicant and Meena Gupta and Naresh Kumari had no relevancy with the workman as their appointment was on compassionate grounds due to vacation of the post of their father and brother respectively.
The Labour Court, keeping in view the evidence brought on record by WW-1 Kunti Devi, Sr. Assistant and the deposition of the workman as WW-2 alongwith the statement of management witness Puran Chand, Clerk as MW-1, came to a factual finding that firstly the workman had not completed 240 days and, therefore, there was no violation of Section 25-F of the Act. The appointment letter was also taken into consideration to hold that the appointment was against a leave vacancy. The appointment letters of Meena Gupta and Naresh Kumari were also Gupta Shivani 2014.09.01 15:19 I attest to the accuracy and integrity of this document Chandigarh taken into consideration to hold that their appointment was made after due selection and the case of the workman could not be equated with them and accordingly, the reference was rejected, as noticed above. The present case is a case of inordinate delay and the workman worked only from March, 1983 to September, 1983. The appointment letter dated 21.03.1983 (Annexure P-4) of the workman reads thus:-
"Shri Jasbir Singh S/o Sh. Harcharan Singh was selected as Clerk-cum-Typist in the selection Board held on 10.3.1982 is hereby appointed as Clerk-Cum- Typist in the scale of Rs. 400-600 on a ad hoc basis against a temporary leave vacancy for a period of three months of till the joining of the incumbent whichever is earlier.
His services are liable to be discontinued any time without giving any notice or assigning any reason. He is posted in Head Office."
Perusal of the same would go on to show that the appointment was against a specific temporary leave vacancy for a period of 3 months or till the joining of the incumbent, whichever is earlier. In pursuance of the above said letter, his services were dispensed with and he was relieved on 21.09.1983 (Annexure P-5). The provisions of Section 2(oo)(bb) of the Act specifically provide that there is an exception where a person is appointed as per the terms of contract of his appointment. The workman was thus appointed for a limited purpose for a specific period. Even if he continued beyond the said period, he never had completed 240 days and, therefore, the provisions of Section 25-F of the Act would not come into play. It is also a matter of fact that the petitioner himself only issued the demand notice on 09.11.2003, after a period of 20 years and sought to raise an industrial dispute which never existed. Though the Labour Court has given the benefit to the petitioner by holding that there is no limitation Gupta Shivani 2014.09.01 15:19 I attest to the accuracy and integrity of this document Chandigarh provided, the observations of the Apex Court in Nedungadi Bank Ltd. vs. K.P. Madhavankutty, 2000 (2) SCC 455 have to be kept in mind, which read thus:-
"6. Law does not prescribe any time limit for the appropriate government to exercise its powers under Section 10 of the Act It is not that this power can be exercised at any point of time and to revive matters which had since been settled Power is to be exercised reasonably and in a rational manner. There appears to us to be no rational basis on which the Central Government has exercised powers in this case after lapse of about seven years of order dismissing the respondent from service. At the time reference was made no industrial dispute existed or could be even said to have been apprehended. A dispute which is stale could not be the subject-matter of reference under Section 10 of the Act. As to when a dispute can be said to be stale would depend on the facts and circumstances of each case. When the matter has become final, it appears to us to be rather incongruous that the reference be made under Section 10 of the Act in the circumstances like the present one. In fact it could be said that there was no dispute pending at the time When the reference in question was made. The only ground advanced by the respondent was that two other employees who were dismissed from service were reinstated. Under what circumstances they were dismissed and subsequently reinstated is nowhere mentioned. Demand raised by the respondent for raising industrial dispute was ex facie bad and incompetent.
7. In the present appeal it is not the case of the respondent that the disciplinary proceedings, which resulted in his dismissal, were in any way illegal or there was even any irregularity. He availed his remedy Gupta Shivani 2014.09.01 15:19 I attest to the accuracy and integrity of this document Chandigarh of appeal under the rules governing his conditions of service. It could not be said that in the circumstances industrial dispute did arise or was even apprehended after lapse of about seven years of the dismissal of the respondent. Whenever a workman raises some dispute it does not become industrial dispute and appropriate government cannot in a mechanical fashion make the reference of the alleged dispute terming as industrial dispute. Central Government lacked power to make reference both on the ground of delay in invoking the power under section 10 of the Act and there being no industrial dispute existing or even apprehended. The pur-pose of reference is to keep industrial peace in an establishment. The present reference is destructive to the industrial peace and defeats the very object and purpose of the Act. Bank was justified in thus moving the High Court seeking an order to quash the reference in question."
The defence regarding the other two employees was categoric that they were appointed on compassionate grounds and their case was different and they were not as such considered as juniors. The petitioner now after 20 years cannot allege that the principles of Sections 25-G and 25-H of the Act were not complied with and claim reinstatement having worked only for 6 months. A perusal of the appointment letter of Naresh Kumari would show that she was appointed on ad hoc basis on 22.03.1984 and her services were regularized on 22.03.1985. Similarly, Meena Gupta was appointed on 03.10.1983 and her services were regularized on 03.10.1984, as per Annexure P-7 itself. The petitioner, in such circumstances, now cannot turn around and submit that the Award passed by the Labour Court is not justified and he is entitled for reinstatement on the strength of having worked only for 6 months against a leave vacancy in view of the provisions of Section 2(oo)(bb) of the Act. Gupta Shivani 2014.09.01 15:19 I attest to the accuracy and integrity of this document Chandigarh
Accordingly, no fault can be found in the well reasoned Award passed by the Labour Court and the present writ petition is dismissed in limine.
26.08.2014 (G.S. SANDHAWALIA)
shivani JUDGE
Gupta Shivani
2014.09.01 15:19
I attest to the accuracy and
integrity of this document
Chandigarh