High Court of Punjab and Haryana, Chandigarh
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DIRECTOR, HEALTH & FAMILY WELFARE, PUNJA v. BALJINDER SINGH & Anr - CWP-20166-2005  RD-P&H 261 (13 December 2005)
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CWP No.20166 of 2005
Date of decision: 23.12.2005
Director, Health & Family Welfare, Punjab, Chandigarh and others ... Petitioners.
Baljinder Singh and another ..Respondents.
CORAM: HON'BLE MR. JUSTICE J.S. KHEHAR
HON'BLE MR. JUSTICE S.N. AGGARWAL
Present:- Mr. C.M. Munjal, Sr. Addl. A.G. Punjab, for the petitioners.
J.S. Khehar, J.
The petitioner-management inducted the respondent-workman Baljinder Singh into Class-IV service by an appointment letter dated 9.3.1995. A perusal of the appointment letter, which has been placed on the record of this case as Annexure P2, reveals that the appointment of the respondent-workman was on 89 days basis, and that, his services would come to an end on the expiry of 89 days. It was also explicit in the letter of appointment, that in case a regular employee joins the service of the petitioner-management against the post held by the respondent-workman, then his services would be terminated. In furtherance of the aforesaid appointment letter, the respondent-workman assumed his duties on 15.3.1995 and was relieved on completion of 89 days on 11.6.1995. By an CWP No.20166 of 2005 2
order dated 21.6.1995 the respondent-workman was again engaged on 89 days basis. He again assumed his duties as a class IV employee on 22.6.1995 and was relieved on completion of 89 days service on 18.9.1995.
In the same fashion, the respondent-workman was repeatedly appointed on 89 days basis from time to time i.e. by an order dated 27.9.1995 (which commenced on 29.9.1995 and concluded on 26.12.1995), and by another letter order dated 28.12.1995 (which commenced on 29.12.1995 and continued till 27.3.1996) and by yet another order dated 9.4.1996 (which commenced on 9.4.1996 and concluded on 7.7.1996).
Since the employment of the respondent-workman was not extended after the last engagement vide order dated 9.4.1996, and because, his services were dispensed with on 7.7.1996, he impugned the action of the petitioner-management in terminating his services by issuing a demand notice under section 2A of the Industrial Disputes Act, 1947 (hereinafter referred to as `the Act') dated 3.6.2001. On the failure of the conciliation proceedings, the dispute raised by the respondent-workman was referred for adjudication to the Presiding Officer, Labour Court, Bathinda (hereinfter referred to as the Labour Court).. The Labour Court answered the reference in favour of the respondent-workman on 16.8.2005. The Labour Court by its aforestated award, while holding that the termination of the services of the respondent-workman with effect from 7.7.1996 was in violation of the provisions of the Act, ordered the reinstatement of the respondent-workman CWP No.20166 of 2005 3
with continuity in service and 40 percent back wages with effect from the date of issuance of the demand notice i.e. with effect from 3.6.2001. The award of the Labour Court dated 16.8.2005 (Annexure P1) is subject matter of challenge through the instant writ petition.
The primary contention of the learned counsel for the petitioner is, that the respondent-workman was appointed as a class IV employee for specified tenure, and that his services were dispensed with on the culmination of the specified tenure. Thus viewed, it is submitted that the termination of the services of the respondent-workman cannot constitute retrenchment within the meaning of section 2(oo)(bb) of the Act. It is not possible for us to accept the instant contention for two reasons. 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.
Additionally, it would be pertinent to mention that the last tenure of appointment of the respondent-workman was based on an appointment letter dated 9.4.1996. The said appointment commenced on 9.4.1996 itself and culminated on 7.7.1996 i.e. well beyond the period of 89 days specified in the said letter. In the facts and circumstances of the present case, it is not open to the petitioner-management even to allege that the services of the CWP No.20166 of 2005 4
respondent-workman had been dispensed with according to the terms and conditions of his appointment, since the tenure of 89 days envisaged in the last letter of appointment dated 9.4.1996 had culminated well before 7.7.1996, when the respondent-workman was relieved from service. For the reasons recorded above, it is not possible for us to accept the claim of the petitioner-management on the basis of section 2(oo)(bb) of the Act.
It is not a matter of dispute that the respondent-workman actually and factually rendered service in excess of 240 days in the 12 calendar months preceding the date of his retrenchment. It is also not a matter of dispute, that at the time of his retrenchment, he was neither issued the mandatory notice envisaged under section 25F of the Act, nor paid compensation in lieu thereof, and further, he was not paid any retrenchment compensation in terms of the mandate of section 25F of the Act. It is, therefore, apparent that the termination of the service of the respondent- workman was in clear violation of the mandatory provisions of the Act.
For the reasons recorded above, we find no infirmity in the impugned award of the Labour Court dated 16.8.2005 (Annexure P1).
( J.S. Khehar )
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