Punjab-Haryana High Court
Jaswinder Singh vs State Of Punjab on 6 July, 2000
Author: K.C. Gupta
Bench: K.C. Gupta
JUDGMENT R.S. Mongia, J.
1. This judgment will dispose of CWP Nos. 7383 of 1998, 11072 of 1998 and 11561 of 1998 as these petitions have been filed against identical awards given by Labour Court. The facts are being taken from CWP No. 7383 of 1998.
2. Briefly the facts are that on 25.1.1995 the petitioner was appointed on ad hoe basis as Steno-typist after his name was sponsored by the Employment Ex change. It was mentioned in the appointment order dated 25.1.1995 Annexure P-1 that:
"This appointment is made on ad hoc basis for 89 days period or till the joining of the regular candi date whichever is earlier."
3. On expiry of the first term of appointment, another appointment letter dated 2.5.1995 was issued to the effect that petitioner had again been selected for appointment as Steno-typist. This appointment was made again on ad hoc basis from 3.5.1995 to 28.7.1995 or till the date of joining of regular candidate. Yet another appointment letter was issued on 3.8.1995 again mentioning that petitioner had been again selected for appointment as Steno- typist on ad hoc basis from 3.8.1995 to 31.8.1995 or till the regular incumbent join, whichever was earlier.
4. The case of the petitioner is that after the expiry of aforesaid date of appointment i.e. 31.8.1995, fresh appointments of the private respondents were made on ad hoc basis which were in violation of provisions of Section 25H of the Industrial Disputes Act. The petitioner raised an industrial dispute which was referred by the government for adjudication to the Labour Court. The Labour Court vide its award dated 25.3.1998, copy Annexure P-17, has declined the reference. Hence the present petition.
5. The case of the respondents, as is also clear from the reading of the award of the Labour Court, is that when the private respondents were given appoint ments, the petitioners were also given opportunity to sit in the type test and it was only on the basis of the re sult of the type test that the private respondents were appointed, though on ad hoc basis. Regular appoint ments had not been made when private respondents were appointed.
6. The first question that has been raised by the counsel for the petitioners, as was raised before the Labour Court, is that the provisions of Section 25H have been violated by appointing private respondents on ad hoc basis and not giving appointment to the petitioners. According to the counsel for the petitioners, the petitioner should have been given an opportunity of being appointed on ad hoc basis without calling upon other candidates like the private respondents to compete for the post in question. It will be apposite at this state to notice to provisions of Section 25H as well as Section 2(oo)(bb) of the Industrial Disputes Act, 1947:
25(H) "Where any workmen are retrenched and the employer proposes to take into his employment any persons, he shall in such manner as may be prescribed give an opportunity (to the retrenched workmen who are citizens of India to offer themselves for re-employment and such retrenched workmen) who offer themselves for re-employment shall have preference over other persons."
Section 2(oo)" retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include -
a) xxxxx
b) xxxxx bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or
c) xxxxx From the reading of the provisions of the aforesaid Sections it will be evident that the first finding that had to be recorded was whether the petitioners can be said to be retrenched employees. According to us, as per the definition of retrenchment under Section 2(oo)(bb), if the tenure of appointment is fixed then on the expiry of the fixed term the services stand terminated automatically. In such a case it would not amount to retrenchment. Can it be said that the petitioners' appointment was for fixed term ? According to us the answer has to be in affirmative. The termination of services of the petitioners by the afflux of the fixed period can not be said to be retrenchment and, therefore, the question of invoking the provisions of Section 25H would not arise.
7. Faced with this situation, the learned counsel for the petitioners submitted that if the job requirements are there and despite that the period in the appointment order is fixed shorter than the job requirement then in such a case even on the afflux of tenure, the termination would still be a retrenchment. In support of this contention, the learned counsel has cited Central Inland Water Transport Corporation v. Brojonath Ganguly, AIR 1986 SC 1571. We have perused this authority. In a case where the requirement of the job is more than term fixed in the appointment letter, the Apex Court observed that it may be inferred that the shorter term was given in the appointment letter with some ulterior motive so that the employee may not able to complete 240 days or may not claim retrenchment. In the present case there was no fixed term of job requirement. A stop-gap arrangement was being made from time to time to await the regular appointees to join. Since to make regular appointments the authorities were taking their own time the ad hoc appointments were being given from time to time. This cannot be said that it was being done with an oblique motive. From the evidence, as has been discussed by the La-
bour Court, it is evident that the Director has been writing to the concerned authorities to make regular appointments.
8. Even assuming for sake of argument, that Section 25H is applicable, even as per petitioners own showing they were also given opportunity for fresh ad hoc appointments when they were put to type test. Merely asking some others also to join foncompeting for ad hoc appointment does not in any way run counter to the provisions of Section 25H as every time fresh ad hoc appointments were being made.
For the foregoing reasons, we do not find any ground to interfere with the award of the Labour Court.
Dismissed.
9. Petition dismissed.