Punjab-Haryana High Court
Balbir Singh vs Kurukshetra Central Coop. Bank Ltd. And ... on 18 January, 1989
Equivalent citations: (1990)ILLJ443P&H
JUDGMENT Amarjeet Chaudhary, J.
1. The petitioner was appointed as a clerk in the respondent-Bank on temporary ad hoc basis for a period of 89 days vide letter dated 19/21st May 1986 and he joined as such on May 21, 1986. The petitioner continued to be in the employment of the respondent-Bank upto August 22, 1987 with notional breaks. There were 62 posts of Clerks available with the Bank, despite that the petitioner's contract for employment was not renewed. Rather, the Bank issued an advertisement which appeared in daily 'Indian Express' dated January 10, 1987 calling applications for the post of clerk.
2. It was contended that even after the initial appointment, the Bank had appointed more clerks and they are still continuing service.
3. Mr. Tacoria, learned counsel for the petitioner, contended that the respondent-Bank is an Industry and the petitioner is a workman as defined under Section 2(j) and 2(s) of the Industrial Disputes Act (hereinafter referred to as 'the Act'), termination of services of the petitioner would amount to retrenchment as defined in Section 2(oo) of the Act which is in violation of the provisions of Section 25F of the Act. '
4. It was also contended that earlier some employees of the respondent Bank approached this Court in Paramjit Chopra v. The Kurukshetra Central Co-operative Bank Ltd., Kurukshetra and Anr. , CWP No. 7959 of 1987, on September 1, 1988, and the matter is squarely covered by that decision.
5. Learned counsel for the respondent-Bank has fairly admitted that the matter is squarely covered by the decision in Paramjit Chopra's case (supra) but he contended that in an earlier writ petition provisions of Clause (bb) of Section 2(oo) of the Act were not taken into consideration. The learned counsel contends that it is a case of termination of contract of employment in terms of Clause (bb) of Section 2(oo) of the Act.
6. I have considered the arguments of the learned counsel for the parties and find that the matter is entirely covered by the decision rendered in Paramjit Chopra's case (supra). In that case it was held that a workman who had rendered continuous service with notional break for a period of one year under Section 25B(2) of the Act during a period of 12 calendar months preceding the date of termination of services of the petitioner who had actually worked with the Bank for not less than 240 days, shall be treated to have been in regular employment of the Bank. The termination of services without complying with the provisions of Section 25F of the Act was held to be illegal.
7. I.R. Malik has raised an additional legal issue other than those taken in Paramjit Chopra's case (supra). This is with regard to the provision of Section 2(oo)(bb) of the Act as amended, which reads as under:-
''(oo) "retrenchment" means the termination by the employer of the sendee of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include-
(a) voluntary retirement of the workman;
(b) ................................................
(bb) terminanion 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 ............................................."
Sub-clause (bb) to Clause (oo) of Section 2 of the Act, which was added in 1984 by an amendment, cannot be so construed as to drastically restrict the orbit of the term of "retrenchment". Clause (bb) is an exception which must be interpreted narrowly. It cannot be given meanings which may nullify or curtail the ambit of the principal clause. No doubt, the intention of the Parliament in enacting clause (bb) was to exclude certain categories of workers from the term of retrenchment but there is nothing in this clause which allows an outlet to unscrupulous employers to shunt out workers in the garb of non-renewal of their contract even when the work subsists. This clause as a whole has to be construed strictly in favour of the workman as far as possible as to ensure that the Act is implemented in letter and spirit. If the termination is meant to exploit an employee or to increase the bargaining power of the empoyer, then it has to be excluded from the ambit of clause (bb) and the definition of term 'retrenchment' has to be given full meaning. The contractual clause enshrined in Clause (bb) cannot be resorted to frustrate the claim of the employee against his uncalled for retrenchment or for denying other benefits. It cannot be so interpreted as to enable an employer to resort to the policy of hire and fire and to confer unguided power on the employer to renew or not to renew the contract irrespective of circumstances in which it was entered into or ignore the nature and extent of work for, which he was employed.
8. In fact clause (bb), which is an exception, is to be so interpreted as to limit it to cases where the work itself has been accomplished and the agreement of hiring for a specific period was genuine. If the work continues the non-renewal of the contract on the face of it has to be dubbed as malafide. It would be fraud in law if it is interpreted otherwise.
9. In the case before me the vacancies are still available with the Bank. Even the Bank had advertised to fill up the same. It cannot be said that the services of the petitioner were terminated due to non-existence of vacancy.
10. In view of what has been stated above, I find no substance in the argument of the learned counsel for the respondents.
11. As a result, the petition is allowed. The termination of the petitioner is held to be illegal. He is ordered to be reinstated in service. However, it is made clear that the petitioner shall not be entitled for back salary for the period he remained out of the employment of the Bank. This order is to be complied within one month from today. However, there will be no order as to costs.