Punjab-Haryana High Court
Jaswinder Kaur Wife Of Sh. Gurdev Singh vs The Presiding Officer on 17 February, 2009
Author: Augustine George Masih
Bench: Augustine George Masih
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
C.M. No. 24295 of 2008 and
CWP No. 4278 of 2008
Date of decision: 17.02.2009
Jaswinder Kaur wife of Sh. Gurdev Singh
.....PETITIONERS
VERSUS
The Presiding Officer, Labour Court, Amritsar and others
..... RESPONDENTS
CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
Present: Mr. B.S.Jaswal, Advocate,
for the petitioner.
Mr. Sukhbir Singh, Advocate,
for the respondents.
***
AUGUSTINE GEORGE MASIH, J. (ORAL)
C.M. No. 24295 of 2008 C.M. is allowed. The replication is taken on record.
CWP No. 4278 of 2008 In the present writ petition, the challenge is to the award dated 05.05.2006 (Annexure P-11) passed by the Labour Court, Amritsar, vide which the reference has been answered against the workman.
Counsel for the petitioner contends that the workman was only called once in the 18 months service to participate in the sports camp to be C.M. No. 24295 of 2008 and -2- CWP No. 4278 of 2008 held at Patiala on 06.12.1992. The telegram was sent to her on 03.12.1992 and on receipt of the telegram, she had immediately responded that she is unwell and cannot participate in the camp. In pursuance thereto, she could not participate in the Punjab Championship, which was held from 10.12.1992 to 12.12.1992. He contends that as per the terms of the appointment letter, copy whereof has been appended as Annexure P-1, the petitioner-workman was to participate in sports for a period of three years from the date of joining the duty. But she could not attend the sports camp because of her ill health, therefore, it cannot be taken as a ground to terminate her services. Counsel for the petitioner further contends that it is an admitted case of the respondents as its own witness Sh. Ram Lal, Additional S.E. Grid Maintenance Division No. 7, Amritsar, who appeared as MW1, has admitted that the provisions of Section 25-N have not been complied with, according to which, three months' notice was required to be given, whereas only one month's pay in lieu of one month notice along with retrenchment compensation was forwarded to the workman. He, therefore, contends that the termination of the workman was not in accordance with the Industrial Disputes Act and, therefore, she is required to be put back in service. He further contends that the date of order of termination is 27.04.1993 whereas the money order, according to the statement, was sent to the petitioner on 23.04.1993. He , therefore, contends that it was already a decision, which had been taken to retrench the services of the workman and passing of the order of termination was mere a formality.
On the other hand, counsel for the respondents contends that the workman was appointed on purely ad-hoc/temporary basis, vide order dated 09.09.1991. In the said appointment order, Clause 3 clearly stipulates that in case, the performance of the workman was not up to the C.M. No. 24295 of 2008 and -3- CWP No. 4278 of 2008 mark, her services were liable to be terminated without notice or assigning any reason. It is not the case of the workman that she was not intimated or did not come to know of sports camp, which was to take place nor is it the case of the workman that she had attached some medical certificate along with her request qua non-participation in the camp, which would substantiate her claim with regard to her unwell rather it is an admission before the Labour Court in her cross-examination that no certificate was attached with the application and as there is a clear admission on the part of the workman, therefore, there can be no justification on the part of the workman to contend that she was to continuing in service for three years and her performance was to be assessed thereafter in view of the specific stipulation in the appointment letter itself. He further contends that what has been stated about the money order being sent by the respondents is that the said money order was dated 23.04.1993 but it has not been stated in the affidavit produced before the Labour Court that the same was sent on 23.04.1993. In any case, he submits that as the services of the workman were terminated as per the provisions contained in her appointment letter, the question of retrenchment would not arise as the same would be covered by the provisions of Section 2 (oo) (bb) of the Industrial Disputes Act, which would not, therefore, be a retrenchment entitling the workman the benefit of Section 25-F or Section 25-N of the Industrial Disputes Act. He further contends that the date of termination of the workman is 27.04.1993 whereas the demand notice, which has been preferred by the workman is dated 01.09.2000. There is an inordinate delay of more than seven years in making such demand and, therefore, the reference itself is not maintainable, as by that time, there was no industrial dispute, which would require adjudication by the competent court. He further submits that there is no explanation put forth by the petitioner- C.M. No. 24295 of 2008 and -4- CWP No. 4278 of 2008 workman, which would justify the delay in making the demand notice.
To this assertion, counsel for the petitioner has submitted that the workman has submitted a representation dated 05.10.1997, which came to be decided on 04.03.1999 and, therefore, she was hoping that her representation would be accepted and thus, the delay in filing the demand notice has occurred.
I have considered the submissions put forth by the counsel for the parties and have gone through the records of the case as well as the impugned award. The factual aspect, which has come in the respective submissions put forth by the counsel for the parties, does not need any further elaboration, as the facts would be apparent.
It is not in dispute that the services of the workman were terminated vide order dated 27.04.1993 effective from 30.04.1993. The termination order clearly indicates that the appointment of the workman has been made as per the terms of her appointment letter. It is also not in dispute that the workman was appointed against sports quota and, therefore, it was mandatory that she would participate in the sports for at least three years of her service. The first instance, when the Board called upon the workman to perform the responsibility, on which basis she was given the appointment, the petitioner failed to even participate what to say perform the duties and the explanation, which was given by the petitioner merely stated that she was unwell but the said explanation has not been supported by any medical evidence or any other cogent evidence, which would substantiate her submissions. It is not in dispute that she was called upon to give explanation but the said explanation, which was given by the workman, has not been found satisfactory by the Management. The services having been dispensed with of the workman, as per the terms of her appointment letter, therefore, it would not amount to retrenchment as C.M. No. 24295 of 2008 and -5- CWP No. 4278 of 2008 the same would be covered under the exception of 2 (oo) i.e. Clause (bb) thereof. Since there is no retrenchment, the question of the payment of retrenchment compensation does not arise, therefore, even if the submission, as put forth by the counsel for the petitioner, that the retrenchment compensation has not been given as per the provisions of Section 25-N of the Industrial Disputes Act, the said submission also would not be of any help to the workman nor would it be relevant with regard to the date, when the compensation was sent. However, the affidavit, which has been placed on record, shows that the money order was dated 23.04.1993 and it does not state that the same was dispatched on the same day nor this assertion was put in the cross-examination, which would substantiate the submission, as put forth by the counsel for the petitioner. Therefore, no illegality can be said to have been committed by the Labour Court while passing the impugned award. It would not be out of way to mention here that there is an inordinate delay of more than seven years on the part of the workman to put forth her claim with regard to the dispute, which she alleges had been in existence all through. The explanation, which has been put forth by the workman, is not acceptable as that is neither justified nor cogent and does not explain the delay of a long period of more than seven years.
Finding no merit in the contentions raised by the counsel for the petitioner, the present writ petition stands dismissed.
( AUGUSTINE GEORGE MASIH ) JUDGE February 17, 2009 pj