Punjab-Haryana High Court
The Chief Administrator, Haryana Urban ... vs Presiding Officer, Industrial ... on 3 February, 1994
Equivalent citations: (1994)107PLR46
JUDGMENT N.K. Kapoor, J.
1. The Chief Administrator, Haryana urban Development Authority, has sought quashing of the award dated 6.10.1993, Annexure P-3, whereby respondent No. 2 has been ordered to be reinstated w.e.f. the date of his termination of service with continuity of service as well as has been awarded 50% of the back wages.
2. The primary contention of the counsel is that the Tribunal erred in law in invoking the provisions of Section 25F of the Industrial Disputes Act as it was not a case of termination of service. The respondent-workman was appointed each time for 89 days and his services stood automatically expired on completion of 89 days and so such a case will come within the purview of Section 2(oo)(bb) of the Industrial Disputes Act (for short 'the Act'). Besides this, it urged that the HUDA was not an industry and so the workman was not covered under the definition of workman. Examined thus, the award of the Labour Court is contrary to the provisions of the Act and thus unsustainable in law. In support of his submission, the counsel relied upon the judicial pronouncements of this Court in cases reported as State of Punjab v. Ram, (1991-3) Service Cases Today, 127 and Surendra Kumar Gyani v. State of Rajasthan, 1992 (3) Service Cases Today, 498.
3. Before examining the legal submission made, it would be appropriate to keep In mind the facts which led to the referring of the dispute to the Industrial Tribunal-cum-Labour Court Under Section 10(1)(c) of the Act. The respondent-workman sought reference of the dispute on the ground that he had been working as a Clerk in the office of the Haryana Urban Development Authority at Panipat from 8.9.3987 to 10.8.1988 and had been getting salary at Rs. 1196/- per month till his services were terminated on August 10, 1988 without any notice and without any information. It was further stated that he has completed 240 days without any break in service and otherwise too his work was found to be satisfactory as per experience certificate issued by the authority concerned. This way the order of termination is malafide, without jurisdiction, illegal and thus liable to be set aside. Accordingly, the workman prayed for reinstatement with retrospective effect with back wages and continuity of service.
4. Pursuance to the notice issued by the Labour Court, HUDA put in appearance and filed written statement giving in detail the period during which the workman performed his duty as Clerk. It was stated that each time he had been employed for a particular period i.e. for 89 days and each time there had been a gap of six days or more during each period of employment. It was denied that the petitioner had worked for more than 240 days in a calendar year. According to the HUDA authorities, the workman was appointed as a stop gap arrangement as per terms and conditions of employment. It was further stated that the HUDA is not an industry and so this reference is totally misconceived.
5. On the pleadings of the parties, following issues were framed by the Labour Court:-
1. Whether the termination of service of Jadish Chander is not just and legal? OPM
2. Whether HUDA is not an industry? OPM
3. Whether the workman's case is covered Under Section 2(oo)(bb) of Industrial Disputes Act? OPM.
4. Relief.
6. Issue No. 1 was decided in favour of the workman whereas issue No. 2 was decided against the management. Significantly issue No. 3 was not pressed. In view of the finding under issue No.1, reinstatement of the workman was ordered with continuity of service with 50% of back wages till his re-employment by the management. The Tribunal on the basis of the evidence has come to the conclusion that the workman worked for a period of 265 days during the calendar year i.e. more than 240 days. Since, admittedly, there had been non compliance of Section 25F of the Act, so the termination was held to be illegal . Working for 265 days during the calendar year is not being disputed. All the same, it has been urged that since it was a term appointment, the Tribunal erred in law in invoking the provision of Section 25F of the Act. According to the counsel, the workman each time had been employed for a fixed term and with the end of the term he could not be said to have been retrenched within the meaning of the Act and so there was no need to comply with the provisions of Section 25F of the Act as termination of an employee on account of non renewal of the contract of employment has been specifically excluded from the definition of retrenchment as per Section 2(oo)(bb) of the Act. The appointment letter has not been adduced in evidence, so its exact term is not known. All the same, there is no denying the fact that the workman had been employed each lime for a period of 89 days during the calendar year he had worked for 265 days. Whether his services were terminated on completion of work assigned or this device was employed to deprive him of the benefits which accrue to a person on account of his long service has been the subject matter of enquiry before various judicial forums. At times it has been found that this device is employed i.e. of giving employment for a particular period and again for identical period after a gap of about 5-6 days so as to disrupt the continuity of his service. The Courts after examining the facts of a particular case at times have held to be an unfair practice. Thus, it is to be seen whether in the present case the action of the HUDA authorities can be termed as malafide and as an unfair labour practice or the same stands justified in the facts of the present case. Admittedly, the workman-respondent had been performing the job of a Clerk to the satisfaction of his superiors. He had an experience certificate in this regard. Reference to which has been made by the Labour Court. No tangible reasons have been given, or assigned for terminating the services of the petitioner. It is not a case that his services were no more required as work assigned to him had completed. It is also not a case where the whole department has been closed on account of a particular assignment for which it has been established. In the absence of the same the action of the HUDA authorities can be clearly held to be mala fide which was solely intended to deprive the respondent-workman of his valuable right to remain in employment unless his service are terminated according to law, No doubt, the decision of this Court in Ram Murti's case (supra) supports the contention raised by the petitioner, but as per facts of the present case we are unable to agree with the view taken by our learned brother N.K. Sodhi, J.
7. In a case reported as Balbir Sigh v. The Kurukshetra Central Co-operative Bank Limited, 1989(2) R.S.J. 55 brother Amarjeet Chaudhary, J., while interpreting Sub- clause (bb) of Clause (oo) of Section 2 of the Act held as under:-
"Sub-clause (BB) of Clause (oo) of Section 2 of the Act, which was added in 1984 by an amendment cannot be so construed as to drastically restrict the orbit of the term of "retrenchment" Clause (bb) is an exception which must be interpreted narrowly. It cannot be given meanings which may nullify or curtail the ambit of their principal clause. No doubt, the intention of the Parliament in enacting Clause (bb) was to exclude certain categories of workers from the term of retrenchment but there is nothing in this clause which allows an outlet to unscrupulour employers to shunt out workers in the garb of non-renewal of their contract even when the work subsists. This Clause as a whole has to be construed strictly in favour of the workman as far as possible as to ensure that the Act is implemented in letter and spirit. If the termination is meant to exploit an employee or to increase the bargaining power of the employer, then it has to be excluded from the ambit of Clause (bb) and the definition of term 'retrenchment' has to be given full meaning. The contractual clause enshrined in Clause (bb) cannot be resorted to frustrate the claim of the employee against his uncalled for retrenchment or for denying other benefits. It cannot be so interpreted as to enable for employer to resort to the policy of hire and fire......"
8. We agree with the reasoning of the aforesaid judgment. Since Section 2(oo)(bb) of the Act is in the nature of an exception it has to be construed strictly.
9. The other judgment in Surendra Kumar Gyani's case (supra) cited by the counsel has no applicability on the facts of this case. The catch words of this judgment read by the counsel are rather misleading. The Court has not examined the case from the provisions contained in the Industrial Disputes Act. Salient facts are that some lower Division Clerks were temporarily appointed as a stop gap arrangement till the persons found suitable by the Rajasthan Public Service Commission became available. It is when such persons were recommended for employment that the services of the temporary employees were terminated who sought their absorption through the intervention of the Court. It is in these circumstances it was held that since their services were liable to be terminated as and when properly recruited persons became available, their services were rightly terminated (para 14 of the judgment). This case has hardly any applicability to the facts of the present case.
10. In fact, somewhat identical proposition came up for consideration before this Court in case reported as Kapurthala Central Cooperative Bank Ltd. Kapurthala v. Presiding Officer, Labour Court, 1984 (2) I.L.R. 333 (DB). Facts: Services of workmen terminated when each of them completed 230 days. No departmental enquiries were held or charge-sheets were issued to determine their fault or misconduct. No retrenchment compensation was given. The plea of the Bank was that services were for a specified period and that too with notional breaks and thus the workers were neither entitled to any retrenchment compensation nor reinstatement. The Court after dilating upon various aspects of the matter held that the attempt of the employer to disperse with the services of the workman so as to deprive him continuity of service for a specified period i.e. 240 days as envisaged Under Section 25B and 25F of the Act amounts to an unfair labour practice unless it is found that the conduct and service of the workman was unsatisfactory - The present case is on a better footing. The respondent-workman has worked for more than 240 days and his work has been found to be satisfactory by the concerned authorities as per certificate given in this regard. Examined thus, we find that the award of the Labour Court is perfectly just and legal and does not call for interference in the writ jurisdiction of this Court and consequently dismiss the same.