Punjab-Haryana High Court
Hari Niwas vs Presiding Officer on 19 February, 2014
Author: G.S.Sandhawalia
Bench: G.S.Sandhawalia
CWP No. 25832 of 2013 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No. 25832 of 2013
Date of decision: 19.02.2014
Hari Niwas ...Petitioner(s)
Versus
Presiding Officer, Industrial Tribunal-cum Labour Court, Hisar and others
...Respondent(s)
CORAM: HON'BLE MR. JUSTICE G.S.SANDHAWALIA
Present: Mr. Rose Gupta, Advocate,
for the petitioner.
G.S.SANDHAWALIA, J. (Oral)
The present writ petition has been filed against the award dated 04.02.2013 (Annexure P-11) passed by the Labour Court, Hisar, whereby his claim for reinstatement has been rejected on the ground that the termination of the services would come within the exception of retrenchment as defined under Section 2(oo)(bb) of the Industrial Disputes Act, 1947 (in short 'the Act') and, therefore, he was not entitled for the benefit of the provisions contained under Section 25-F and 25-H of the Act since his contractual service was not further renewed.
The case of the petitioner was as per his demand notice dated 05.02.2010 (Annexure P-5) that by virtue of an advertisement, he had been appointed as Computer Operator/Data Entry Operator with the Municipal Committee, Narnaund-respondent no. 2. He worked upto 10.10.2009 under the outsourcing policy and his work was appreciated but his services were Gupta Shivani 2014.03.03 14:42 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 25832 of 2013 2 terminated without assigning any reason. No show cause notice was issued and no inquiry was held and the provisions of the Act were violated.
In the reply filed to the said demand notice, the stand taken by the Municipal Council was that the appointment was for a period of six months on the basis of the outsourcing policy of the Government on a contract basis for monthly wages of `5,500/- and his appointment had been extended and the post was on contract basis and the same was not vacant currently. One Sh. Sandeep Kumar had been appointed as Data Entry Operator from 21.12.2010 to 20.06.2011. His appointment had never been regularized.
On the basis of the said demand notice, the matter was referred to the Labour Court, wherein the claim petition was filed on the same set of allegations and was refuted by the Municipal Council. After examining the evidence produced by the petitioner which was in the form of his own deposition as WW-2 and of Suresh Kumar, Clerk from the office of the Municipal Committee as WW-1, the Labour Court came to the opinion that the appointment was done for a period of six months under the outsourcing policy of the Government Ex. M-1. The workman was selected for a period of six months on the fixed salary of `5,590/- and his period of appointment was six months as per the appointment letter Ex. M-3 (Annexure P-2 herein). The service was extended for a further period of six months two times till 10.10.2009 and the documents were Exs. M-4 to M-6. After the expiry of the contractual period, he was relieved and other persons were appointed from time to time for a period of six months under the said policy. Provisions of Section 2(oo)(bb) of the Act were examined and it was held that as per the letter of appointment, the case of the petitioner could not be Gupta Shivani 2014.03.03 14:42 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 25832 of 2013 3 covered under the definition of retrenchment since his contractual service was not further renewed and accordingly, the reference was declined.
Counsel for the petitioner has vehemently submitted that he had completed 240 days and, therefore, the finding of the labour Court was not justified. No compensation was paid nor any notice had been given and, therefore, he was entitled for reinstatement. Reliance was placed upon judgment of the Apex Court in Devinder Singh vs. Municipal Council, Sanaur, 2011 (6) SCC 584 to contend that even persons appointed on contract basis were entitled for the protection.
After hearing counsel for the petitioner, this Court is of the opinion that there is no merit in the present petition.
A perusal of the appointment letter (Annexure P-2) dated 10.04.2008 would go on to show that the appointment was only for a period of six months under the outsourcing policy of the Government. The period of work could be increased or decreased, as per instructions of the Deputy Commissioner, Hisar under Clause 5. The appointment letter reads thus:-
"Sub: Appointment of Computer Operator/ Data Entry Operator under the policy for outsourcing of Service.
Reference Letter No. 1742/LF dated 20.03.2008 of Deputy Commissioner, Hisar on the subject cited above.
On the subject the appointment of Computer Operator/Data Entry Operator in Municipal Committee, Narnaund for the period of 6 months under the Policy for outsourcing of services which is authorized by the Deputy Commissioner, Hisar. For the same an advertisement was published in the Daily Newspaper Hari Bhumi on 08.04.2008 and the Gupta Shivani 2014.03.03 14:42 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 25832 of 2013 4 interview of the same post was organized at 10 AM on 10.04.2008, and you are eligible candidate for the above post. So on the basis of terms and conditions of the Municipal committee,. Narnaund, you are given an appointment letter for the post of computer Operator/Data Entry Operator.
1. This appointment is for a contract period of 6 months of Outsource Policy of Government.
2. You will be paid Rs. 5590/- per month as per the rate decided by DC, Hisar. The DC rates will applicable to you.
3. That you will be terminated if your work found unsatisfactory.
4. That you will never claim as Regular Post for this post.
5. That the period of work can be increase or decrease by the instructions of the Deputy Commissioner, Hisar.
If you are agree with the above terms and conditions, then mark your presence to the secretary, Municipal Committee, Narnaund within 10 days otherwise this appointment will be cancelled."
That a factual finding has already been recorded that in pursuance of the said appointment, the petitioner's contract was extended twice and he continued to work till 10.10.2009 under the said extension. Once he was well aware of the terms of his contract, he would be bound by the same. The Apex Court in Municipal Council, Samrala vs. Raj Kumar, (2006) 3 SCC 81, while examining the provisions of Section 2(oo)(bb) of the Act, held that the said Section contains an exception and there are two parts wherein the first part pertains to the non-renewal of the contract of employment whereas the second part pertains to termination of the said Gupta Shivani 2014.03.03 14:42 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 25832 of 2013 5 contract of employment in terms of the stipulations contained in that part. Thus, the petitioner was well aware that his appointment was for a short period and that his services could be terminated as per his contract. The Labour Court has found that his termination and his contractual service was not further renewed and thus, was under the first part. The relevant observations of the Apex Court in Municipal Council, Samrala's case (supra) read thus:-
"10. Clause (oo)(bb) of Section 2 contains an exception. It is in two parts. The first part contemplates termination of service of the workman as a result of the non-renewal of the contract of employment or on its expiry; whereas the second part postulates termination of such contract of employment in terms of stipulation contained in that behalf. The learned Presiding Officer of the Labour Court as also the High Court arrived at their respective findings upon taking into consideration the first part of Section 2(oo) (bb) and not the second part thereof. The circumstances in which the respondent came to be appointed have been noticed by us hereinbefore.
11. The appellant is a Municipal Council. It is governed by the provisions of a statute. The matter relating to the appointment of employees as also the terms and conditions of their services indisputably are governed by the provisions of the relevant Municipal Act and/or the Rules framed thereunder. Furthermore, there is no doubt that the matter relating to the employment in the Municipal Council should be governed by the statutory provisions and thus such offer of appointment must be made by a person authorised therefor. The agenda in question was placed before the Executive Council with a view to obtain requisite Gupta Shivani 2014.03.03 14:42 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 25832 of 2013 6 direction from it wherefor the said letter was written.
The reason for such appointment on contract basis has explicitly been stated therein, namely, that one post was vacant and two employees were on leave and in that view of the matter, services of a person were immediately required in the Council. Thus, keeping in view the exigency of the situation, the respondent came to be appointed on the terms and conditions approved by the Municipal Council.
12. We have noticed hereinbefore that the respondent understood that his appointment would be short-lived. He furthermore understood that his services could be terminated at any point of time as it was on a contract basis. It is only in that view of the matter, as noticed hereinbefore, that he affirmed an affidavit stating that the Municipal Council of Samrala could dispense with his services and that they have a right to do so."
Reliance placed upon Devinder Singh's case (supra) by the counsel for the petitioner would be of no assistance. In the said case, the Labour Court had directed reinstatement and rejected the plea of the management by holding that there was no evidence produced by the management that it was a case of termination of service in accordance of terms of contract of employment. The High Court had thereafter allowed the writ petition on the ground that the appointment was not as per the Rules. It was in such circumstances, the Apex Court allowed the appeal by holding that it was never the case of the management before the Labour Court and the failure of the Director, Local Self Government, Punjab to convey his approval to the resolution of the respondent could not be made a ground for bringing an end to the engagement of the workman. Thus, the Gupta Shivani 2014.03.03 14:42 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 25832 of 2013 7 said judgment is not applicable to the facts and circumstances of the present case.
The facts in the present case would go on to show that the Municipal Council set up a specific plea and from the appointment letter reproduced above, it would be clear that the appointment was in the nature of contract of specific period, which was extended as per the terms of the appointment letter. Thereafter, after the expiry of the extensions, the contract was not renewed. The non-renewal of the contract would not give a cause of action to the workman to say that the provisions of Sections 25-F and 25-H were violated. The award of the Labour Court is well reasoned and this Court is of the opinion that there is no scope for interference as it is settled principle that this Court is not sitting as a Court of appeal and is only to see whether there is any illegality in the reasons given by the Labour Court.
It has time and again been held by the Apex Court that while exercising the powers of writ jurisdiction under Article 226 of the Constitution of India, this Court is to exercise its power only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice has taken place. The High Court will not convert itself into a Court of appeal and indulge, appreciate or evaluate evidence and correct errors in drawing inferences or correct errors of mere formal or technical character. The said principle was laid down in Surya Dev Rai vs. Ram Chander Rai and others, 2003 (6) SCC 675. It is where the Tribunal has acted illegally in exercise of jurisdiction conferred on it and decides a question without giving an opportunity to be heard to the party affected by the order or where the procedure adopted in dealing with Gupta Shivani 2014.03.03 14:42 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 25832 of 2013 8 the dispute is opposed to the principles of natural justice, this Court would interfere. The error of law has to be apparent on the face of the record and it has to be manifestly clear that the conclusion of law recorded by the Tribunal is in misinterpretation of the relevant statutory provisions or in ignorance in regard of the same. Thus, what can be corrected is an error of law, which would be of such character which is apparent on the face of the record and if the statutory provision is capable of two constructions and one of it had been adopted by the Tribunal, it may not be desirable to correct the same by way of writ of certiorari.
In the present case, no such error of law or fact has been shown which would warrant interference by this Court while exercising jurisdiction under Article 226 of the Constitution of India. Accordingly, there is no scope for interference in the well reasoned order of Labour Court and the writ petition is dismissed in limine.
19.02.2014 (G.S. SANDHAWALIA)
shivani JUDGE
Gupta Shivani
2014.03.03 14:42
I attest to the accuracy and
integrity of this document
High Court Chandigarh