Punjab-Haryana High Court
State Of Punjab vs Sh. Parvesh Kumar And Anr. on 31 March, 1994
Equivalent citations: (1994)107PLR545
ORDER Jawahar Lal Gupta, J.
1. The State of Punjab through these three Civil Writ Petitions Nos. 13631 of 1991,5750 and 9481 of 1993, challenges the three separate awards given by the Labour Court, Chandigarh. Learned counsel for the parties have referred to the facts to Civil Writ Petition No. 9481 of 1993. These may be briefly noticed.
2. The first respondent was recruited as a clerk on November 13, 1981 by the Director, Punjab State Lotteries. This appointment was on 'daily wages'. He continued to work till October 30,1987 when his services were terminated. Aggrieved by the action, he raised an industrial dispute. A reference was made by the appropriate Government to the Labour Court. On the pleadings of the parties, the following issues were framed :-
1. Whether the services of workman were terminated illegally by the management, if so to what effect and to what relief the workman is entitled to, if any ? OPM
2. Whether the Director, Punjab State Lotteries is not an industry and for this reason, the reference is not maintainable ? OPM
3. Whether the reference is vague as alleged in para 2 of the preliminary objection ? OPM.
4. Relief.
3. The Labour Court decided all the issues in favour of the workman and consequently, held that the order of termination was void. It ordered reinstatement of the workman with 50% back wages. Aggrieved by this award, the State of Punjab had filed the present writ petition. It has been inter alia challenged on the ground that the termination was in strict conformity with the terms of appointment and as such, it did not amount to retrenchment in view of the provisions of Section 2(oo)(bb).
4. The respondent-workman has filed a written statement controverting the claim made on behalf of the petitioner.
5. I have heard learned counsel for the parties.
6. On behalf of the petitioner, it has been contended that the Director of Lotteries is not an Industry and that the termination of the services of the respondent-workman does not amount to retrenchment. On the other hand, learned counsel for the respondent-workman has contended that on examination of the evidence, the labour Court has recorded a positive finding of fact that the orders of termination have been passed in violation of the provisions of the Act. In the circumstances, it is contended that no ground for interfering with the award given by the Labour Court, is made out.
7. Regarding the first contention on behalf of the petitioner, it may be mentioned that no factual data has been furnished to show that it is not an Industry. Admittedly, the Directorate is a regular office having a systematic activity. According to Mr. D. S. Dhillon, learned counsel appearing for the petitioner, the number of persons working in the office ranges from 50 to 60. The Directorate is running various lotteries. Its activities are commercial. It is admittedly making profits. In view of the tests laid down by the Apex Court in Bangalore Water Supply v. A. Rajappa, A. I. R. 1978 S. C. 548, it cannot be said that the petitioner is not an Industry. In fact, it has not even been seriously pleaded or argued that the Directorate is discharging any sovereign functions. Consequently, the first contention raised on behalf of the petitioner cannot be accepted.
8. Secondly, it is the admitted position that the respondent workman had worked continuously for a period of almost six years. Admittedly, his services were terminated without the issue of any notice or payment of any compensation. The provisions of Section 25F were not complied with. It has been contended that the appointment of the respondent had been made against a post sanctioned for Pooja Laxmi Lottery Scheme. Since the Scheme itself had been abolished, the service of the respondent who was working on daily wages stood automatically terminated. Even this contention cannot be accepted. It is established on the record that the appointment had not been made against the Pooja Laxmi Lottery Scheme. Learned counsel for the respondent-workman has specifically pointed out that Mr. Amarjit Singh who appeared as MW-1 before the Labour Court, specifically admitted during the course of cross-examination that "the appointment of workman was not against Pooja Laxmi Lottery Scheme." Still further, it cannot be accepted that merely because the appointment was made on daily wages', it would not amount to retrenchment. It is not a case where an appointment had been made for a fixed period for a specific job. The appointment had admittedly continued for almost six years. It has not been established on the record that the post had been abolished or that there was no work. The exception in Section 2 (oo)(bb) cannot, thus, be invoked.
9. In regard to Civil Writ petition No. 5750 of 1993, an additional contention was raised that the workman was guilty of delay and as such, no relief should be granted to him.
10. A perusal of the reply to the demand notice Bled on behalf of the Department before the Assistant Labour Commissioner-cum-Concilation Officer (Annexure P2 with the writ petition) shows that a preliminary objec tion was raised that" the subject matter of the instant Demand Notice is already covered under the earlier reference No. IDR 538/88 which has since been adjudicated upon by the competent court......" The objection regarding delay was also raised. Learned counsel for the respondent has pointed out that initially, the demand notice had been served on the Deputy Director. The reference had been made to the Labour Court in pursuance to that notice. However, later on, the fresh notice had to be issued as the Deputy Director was not the 'employer'. Still further learned counsel for the respondent-workman has pointed out that it is only on account of the delay that the Labour Court has restricted the payment of back wages to the extent of only 70%. This is undoubtedly so. No ground for interference with the discretion exercised by the Labour Court in these circumstances, is made out. Consequently, the plea on behalf of the petitioner is rejected.
11. In Civil Writ Petition No. 13631 of 1993, the only additional plea raised on behalf of the petitioner is that the entire proceedings are vitiated as the appropriate Government had made two references. The first reference was made on October 15, 1988 when the following dispute was referred for adjudication :-
" Whether the services of S/shri Karnail Singh, Paramjit Kaur, Gurdev Singh, Rajni, Nirmal Kaur, Suman Bala and Paramjit Kaur were terminated illegally by the management of Director, Punjab State Lotteries, Punjab Chandigarh, if so, to what effect and to what relief he is entitled to, if any."
12. Thereafter, another reference was made on December 1, 1989 when the following dispute was referred to the Labour Court :-
" Whether the service of Smt. Rajni were terminated illegally by the management of the Director, Punjab State Lotteries, Chandigarh If so, to what effect and to what relief he is entitled to, if any ?
Copies of these orders of reference have been produced, m Annexure P-4 and P-5 with the writ petition. It is contended that there was no valid reference of the dispute to the Labour Court.
13. On a perusal of the order dated October 15, 1988, it is apparent that the administration had made a single reference with regard to the disputes raised by a number of employees. Realising that separate reference were necessary with regard to each employee, the Administration appears to have referred individual disputes to the court. In fact, learned counsel for the respondent-workman have pointed out that this was done in pursuance to the order of the Labour Court passed on July 25,1989. In any event, so far as the respondent-workman is concerned, he cannot be blamed in any manner whatsoever. The plea raised on behalf of the petitioner was rightly rejected by the Labour Court and calls for no interference.
14. There is another aspect of the matter. A copy of the statement of the witness who appeared on behalf of the Department, has been produced by the petitioner as Annexure P-9 with the writ petition, a perusal of the statement shows that even after the termination of the services of the workman, at least 10 persons were appointed as clerks on daily wages. The witness has categorically admitted that "the office order E.A-2 has been issued by only department through which 10 persons were appointed as clerks on daily wages." He further stated that "Ex.A-3 is the office order issued by the department allotting the work to 10 candidates taken into service vide Ex.A.2...." It was also admitted that" the department did not write any letter to the petitioner offering her any appointment after 11.4.1986."
15. In view of this position, it is clear that even the provisions of Section 25-H were not complied with by the petitioner. Taking the totality of the circumstances into consideration, no ground for interference with the awards given by the Labour Court is made out.
16. Accordingly, all the three writ petitions are dismissed. However, in the circumstances of these cases, there will be no order as to costs.