Punjab-Haryana High Court
The Haryana State Federation Of ... vs The Presiding Officer And Another on 26 April, 2013
Author: Amol Rattan Singh
Bench: Amol Rattan Singh
CWP No.13913 of 1994 -1-
IN THE HIGH COURT FOR THE STATESOF PUNJAB AND
HARYANA AT CHANDIGARH
CWP No.13913 of 1994
Date of Decision: April 26, 2013
The Haryana State Federation of Consumers Cooperative Wholesale
Stores Ltd.
...Petitioner
Versus
The Presiding Officer and another
...Respondents
CORAM: HON'BLE MR. JUSTICE AMOL RATTAN SINGH
Present: Mr. Aseem Rai, Advocate
for the petitioner.
Mr. Namit Kumar, Advocate
for respondent No.2.
***
Amol Rattan Singh, J.
The petitioner in this case is the Haryana State Federation of Consumers Cooperative Wholesale Stores Limited, (hereinafter to be referred to as "CONFED"). It is aggrieved of the award passed by the learned Presiding Officer, Industrial Tribunal-cum-Labour Court, Gurgaon (hereinafter to be referred as the "Labour Court"), dated 06.05.1994, by which respondent No.2 (Brahma Nand) was ordered to be reinstated as a Clerk, w.e.f. the date of his termination, i.e. 01.12.1986 with continuity of service and full backwages.
2. The facts of the case are that, respondent No.2 was initially appointed as a Salesman in the petitioner-federation (CONFED), on 15.01.1981, on a consolidated salary of `300/- per month.
Subsequently, he was given ad hoc appointment as a Clerk, w.e.f. 02.03.1984 (misprinted as 02.12.1986 in the petition as a CWP No.13913 of 1994 -2- typographical/clerical error), for a period of 89 days, in the pay scale of ` 400-600/-. After the expiry of the said period, he was again appointed on ad hoc basis on the same post for a period of 6 months, which tenure was extended from time to time for six months each. The last extension was given on 03.06.1986 up to 02.12.1986.
3. As per the CONFED, the last extension was actually given on the request of respondent No.2-workman, after he had been relieved on 30.05.1986. On 01.12.1986, he was ordered to be relieved from the post of Clerk w.e.f. 02.12.1986.
Thus, the action of CONFED in relieving respondent No.2- workman, from the post of Clerk w.e.f. 02.12.1986, was challenged by issuing a demand notice. Subsequently, after receipt of the demand notice, vide order dated 18.12.1986, he was ordered to be reverted to his previous post of Salesman, stating therein that his lien on the said post had been retained at the time of his ad hoc appointment as a Clerk. This fact was admitted before the Labour Court by the petitioner- federation (CONFED).
4. The stand taken by the petitioner-federation (CONFED) before the Labour Court, was that, since the sanction for the post of Clerk was not received from the competent authorities, hence, he could not be continued as such on the said post.
5. The Labour Court recorded a finding that there is nothing on record with regard to the fact that respondent No.2 had any lien on the post of Salesman, owing to which he was reverted to the said post, nor was any proof given with regard to the abolition of the post of Clerk, leading to termination of respondent No.2's services. CWP No.13913 of 1994 -3-
6. Initially, no stay had been granted by the Division Bench, while issuing notice in this case, on 28.09.1994; however, at the time when it was admitted to regular hearing on 07.04.1995, the operation of the award was stayed, subject to the provisions of Section 17B of the Industrial Disputes Act, 1947 (in short, "the Act").
7. As per the record produced by the petitioner-federation (CONFED) in Court, it is seen that the petitioner-federation decided to reinstate respondent No.2 to the post of Clerk, instead of paying him wages under Section 17B of the Act. The decision to this effect is on the file produced and is dated 16.06.1995. Consequent upon this, the respondent No.2 joined as such on 03.07.1995.
8. When the case was taken up for hearing on 02.01.2013, the learned counsel for respondent No.2-workman, had submitted that respondent No.2 has already attained the age of superannuation on 05.03.2012 and has actually been issued a retirement order dated 12.03.2012.
9. The issue, therefore, is whether or not he would be entitled to wages for the period that he remained out of service, between 02.12.1986 till the date of his re-instatement on 16.06.1995.
Towards that, to determine the same, it is first to be determined, as to whether respondent No.2-workman would be covered under the exception carved out in sub-clause (bb) of Clause (oo) of Section 2 of the Act, i.e. whether the nature of his appointment as a Clerk was contractual or not?
10. Sh. Aseem Rai, learned counsel for the petitioner- CONFED, relied upon a judgment of the Hon'ble Supreme Court in Madhyamik Siksha Parishad, U.P. Vs. Anil Kumar Mishra and CWP No.13913 of 1994 -4- others, AIR 1994 SC 1638, to submit that where the appointment is on ad hoc basis or the post had spent itself out, reinstatement cannot be ordered.
11. On the other hand, Sh. Namit Kumar, learned counsel for respondent No.2, relied upon judgments of this Court and the Hon'ble Supreme Court to submit that, firstly, where the workman had been continued in service with notional breaks, while giving him appointment for 89 days on each occasion, the management cannot take shelter of Section 2(oo) (bb) of the Act, and once it is shown that the workman had completed 240 days in the 12 Calendar months preceding the date of his removal, he is entitled to benefit of Section 25F of the Act and, on non-compliance thereof, he would be entitled to reinstatement and continuity of service, with full back wages. Towards this, he has placed reliance on the case of Devinder Singh Vs. Municipal Council, Sanaur, 2011 (3) SCT-139, decided by the Hon'ble Supreme Court, as also on two Division Bench judgments of this Court in Chairman, The Mewat Development Agency, Nuh Vs. Ravinder Balwan and another, 2012 (3) SCT 154, and Director, Health & Family Welfare, Punjab, Chandigarh and others Vs. Baljinder Singh and another, 2006 (2) SCT 105. In the last case cited, it was held as under:
"...From a perusal of the facts narrated hereinabove, it is apparent that the respondent-workman was repeatedly appointed on 89 days basis. Such an act of repeated appointments with notional breaks amounts to an unfair labour practice. The Labour Court was fully justified in recording such a conclusion on the basis of the facts and circumstances of the present case."
Again in Chairman, The Mewat Development Agency's case (supra), it was held as under:
CWP No.13913 of 1994 -5-
"...The issue of appointment for 89 days on consolidated salary was not germane in the context of compliance of mandatory provisions of Section 25F of the Act regarding prior notice and payment of retrenchment compensation. In the present case they had to be complied with. The philosophy behind payment of retrenchment compensation is to protect a workman against sudden dislocation and to put some money in his pocket to tide over immediate hardship and save him till he finds another job to sustain himself and his family."
12. With regard to the second issue, as to whether, upon non- receipt of sanction of post, the workman can be reinstated or not, as opposed to the judgment cited by Sh. Aseem Rai, (wherein it was held that where no sanctioned post is in existence after the ad hoc assessment had spent itself out, there could be no reinstatement to such a post), Sh. Namit Kumar has cited the judgment of the Supreme Court in Anoop Sharma Vs. Executive Engineer Public Health Division No.1, Panipta (Haryana), 2010 (3) SCT 319, to state, that simply on account of non-sanctioning of a post, a workman could not be denied the benefit of Section 25F of the Act, and as such, non-compliance thereof would necessarily entitle him to reinstatement and full back wages. Towards this argument, he placed reliance on para 13 of the said judgment, which is reproduced hereunder:
"...13. An analysis of the above reproduced provisions shows that no workman employed in any industry who has been in continuous service for not less than one year under an employer can be retrenched by that employer until the conditions enumerated in Clauses (a) and
(b) of Section 25F of the Act are satisfied. In terms of Clause (a), the employer is required to give to the workman one month's notice in writing indicating the reasons for retrenchment or pay him wages in lieu of the notice. Clause (b) casts a duty upon the employer to pay to the workman at the time of retrenchment, compensation equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months. This Court has repeatedly held that Section 25F(a) and (b) of the Act is mandatory CWP No.13913 of 1994 -6- and non-compliance thereof renders the retrenchment of an employee nullity- State of Bombay v. Hospital Mazdoor Sabha AIR 1960 SC 610, Bombay Union of Journalists v. State of Bombay (1964) 6 SCR 22, State Bank of India v. N. Sundara Money (1976) 1 SCC 822, Santosh Gupta v. State Bank of Patiala (1980) 3 SCC 340, Mohan Lal v. Management of M/s Bharat Electronics Ltd. (1981) 3 SCC 225, L. Robert D'souza v. Executive Engineer, Southern Railway (1982) 1 SCC 645, Surendra Kumar Verma v. Industrial Tribunal (1980) 4 SCC 443, Gammon India Ltd. v. Niranjan Das (1984) 1 SCC 509, Gurmail Singh v. State of Punjab 1991 (3) SCT 608: (1991) 1 SCC 189 and Pramod Jha v. State of Bihar 2003(2) SCT 296: (2003) 4 SCC 619. This Court has used different expressions for describing the consequence of terminating a workman's service/employment/ engagement by way of retrenchment without complying with the mandate of Section 25F of the Act.
Sometimes it has been termed as ab initio void, sometimes as illegal per se, sometimes as nullity and sometimes as non est. Leaving aside the legal semantics, we have no hesitation to hold that termination of service of an employee by way of retrenchment without complying with the requirement of giving one month's notice or pay in lieu thereof and compensation in terms of Section 25F(a) and (b) has the effect of rendering the action of the employer as nullity and the employee is entitled to continue in employment as if his service was not terminated."
13. Having cited the case law, we now come to the subsequent developments that have taken place as regards the facts in this case.
When this case was taken up for hearing now on 22.03.2013, learned counsel for the petitioner-federation (CONFED) very fairly placed on record the file of the entire case and brought my attention to the order dated 29.10.2002, which was not earlier in his knowledge, by which the services of respondent No.2 have been regularized w.e.f. 25.02.1985 and his seniority as Clerk has also been fixed w.e.f. the said date, by the Managing Director of the petitioner- federation (CONFED). Consequent upon this, he has been granted CWP No.13913 of 1994 -7- increments also from year to year and finally had been issued a retirement order on 12.03.2012 to be operative w.e.f. 31.03.2012. Obviously, in view of above, respondent No.2 would be entitled to all benefits of service from the date of his regularization, in any case.
However, why the merits of the case, including the detailed facts thereof, have been discussed, despite the regularization granted to him w.e.f. from a date prior to the date from his termination (date of regularization being w.e.f. 25.02.1985 and date of relieving from the post of Clerk actually being 02.12.1986), is because no wages on the post of clerk are stated to have been paid for the period from 02.12.1986 till his reinstatement on 16.06.1995.
14. Hence, the issue of back wages for this period and the effects of the service rendered in ad hoc capacity, would still need to be decided.
15. In view of what has been cited by learned counsel for respondent No.2 on the issue of retrenchment after continuous extension of service, as also on the issue of retrenchment simply on account of non-sanction of post, I am unable to accept the submission made on behalf of the petitioner-federation.
In any case, the issue of retrenchment need not be gone into for the simple reason that the respondent No.2 was actually reinstated in the year 1995 and thereafter regularized on 29.10.2002, w.e.f. 25.02.1985. Still, on the issue of backwages, in view of the judgments cited, to the effect that once a workman has completed 240 days in a calendar year, after extension of service from time to time, the plea of CWP No.13913 of 1994 -8- contractual appointment and shelter of Section 2(oo) (bb), cannot be taken by the management.
16. As regards non-sanction of the post leading to his termination/relieving on 02.12.1986, the Labour Court recorded a finding of fact that no material was placed on record to show that the post in question had been abolished/not sanctioned in 2012. Even in this writ petition, other than the bald submission that no sanction has been received for continuation of the post of Clerk, no material has been placed on record to show that this post requires to be sanctioned from time to time and as a consequence of such non-receipt of sanction, respondent No.2 was relieved from the same. In fact, a perusal of Annexures P-3 and P-4, dated 01.12.1986 and 18.12.1986, the orders of relieving, and the orders of appointment (by reversion) as a Salesman respectively, shows that the only reason given for non continuation of the respondent as a clerk, was on account of his term having expired. There is not even a whisper in either of the two orders with regard to non-sanctioning of the post. No doubt, his appointment to such post was in an ad hoc capacity; however, there is nothing to show that the post itself was abolished or not sanctioned.
Further, in the judgment in the case of Devinder Singh (supra) cited by Sh. Namit Kumar, learned counsel for respondent No.2, the specific plea taken by the management in that case was, that the appellant-workman had been engaged on contract basis and his services were terminated because the Director, Local Government, did not give the approval to the resolution passed for his appointment. CWP No.13913 of 1994 -9-
17. Negating the said plea, it was held by their Lordhsips as under:
"...25. In furtherance of the aforesaid resolution, the respondent engaged the appellant who was already in its employment, as a Clerk for a period of six months on contract basis on consolidated salary of Rs.1,000/- per month. At the end of six months, the respondent passed another resolution dated 30.11.1995 and again employed the appellant for a period of six months from 01.11.1995 to 20.04.1996. This exercise was repeated in 1996 and the appellant's term was extended for six months from 01.05.1996. However, his engagement was discontinued w.e.f. 30.09.1996 without giving any notice or pay in lieu thereof and compensation as per the requirement of clause (a) and (b) of Section 25F of the Act. It is true that the engagement of the appellant was not preceded by an advertisement and consideration of the competing claims of other eligible persons but that exercise could not be undertaken by the respondent because of the ban imposed by the State Government. It is surprising that the Division Bench of the High Court did not notice this important facet of the employment of the appellant and decided the writ petition by assuming that his appointment/engagement was contrary to the recruitment rules and Articles 14 and 16 of the Constitution. We may also add that 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 appellant and that too without complying with the mandate of Section 25F(a) and (b).
Thus, non sanction of a post, does not relieve the management of its obligations to comply with the provisions of Section 25F of the Industrial Disputes Act, 1947.
18. In view of the above, this writ petition is dismissed. The award of the Labout Court dated 06.05.1994 is upheld and respondent No.2 would consequently be entitled to full back wages, from 02.12.1986 to 03.07.1995, if not already paid. The same would also reflect and enure towards all claims of retiral benefits and other service benefits, including Assured Career Progression (ACP) scales etc., CWP No.13913 of 1994 -10- during the period of his service. Arrears of pay and other benefits would be paid to respondent No.2, along with back wages, within a period of one month from the date of receipt of a copy of this order.
(AMOL RATTAN SINGH) JUDGE April 26, 2013 vcgarg