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DIRECTOR, HEALTH AND FAMILY WELFARE DEPA versus AMARJIT KAUR & ANR.

High Court of Punjab and Haryana, Chandigarh

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Director, Health and Family Welfare Depa v. Amarjit Kaur & Anr. - CWP-2829-2005 [2006] RD-P&H 6925 (11 September 2006)

C.W.P. No.2829 of 2005 1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

C.W.P. No.2829 of 2005

DATE OF DECISION: 11.9.2006

***

Director, Health and Family Welfare Department, Punjab & Anr.

..PETITIONERS

VS.

Amarjit Kaur & Anr.

..RESPONDENTS

CORAM: HON'BLE MR. JUSTICE J.S. NARANG.
HON'BLE MR. JUSTICE ARVIND KUMAR,

Present:- Ms. Nirmaljit Kaur, Addl. A.G. Punjab with Ms. Sonia M. Aggarwal, AAG Punjab

for the petitioners.

Mr. Vivek Singla, Advocate

for respondent No.1.

***

ARVIND KUMAR,J.

Challenge in this petition under Articles 226/227 of the Constitution of India is to the award dated 19.1.2004, copy Annexure P-2, ordering re-instatement of respondent No.1 with continuity of service and 50% back wages. The back wages for the month of January and February 2002 were not awarded to her as she was found to be remained gainfully employed during the said period.

We have heard learned counsel for the parties at length and have gone through the paper-book as also the impugned award.

The plea of the petitioner-department is that the appointment of workman was contractual, on 89 days basis, which comes to an end with the efflux of time. The termination of services of workman falls under exceptional clause (bb) to Section 2(oo) of the Industrial Disputes Act, 1947 C.W.P. No.2829 of 2005 2

(for short the Act). Moreover, there was a stipulation in her appointment letter to the effect that her services are liable to be terminated on appointment of regular candidate. As such, there was no violation of any of the provisions of the Act while terminating the services of the workman.

The plea is unsustainable for variety of reasons. It is not in dispute that respondent No.1 was inducted into service by the petitioner- department on 28.7.1995. Her appointment was initially for 89 days. By virtue of various extensions, she served the petitioner-department up to 2.7.1997, when her services were terminated due to appointment of one regular candidate namely Manjit Kaur. However, it transpires from the impugned award that one Bikkar Singh was appointed on 18.10.1995 i.e.

after about 3 months of engagement of the workman. It has also come in the statements of workman herself as WW-1 and Smt. Harbans Kaur WW-2 that said person, junior to the workman, was retained in service when her services were dispensed with by the petitioner-department. Nothing substantial has been produced by the petitioner-department either before the Labour Court or before this Court to controvert the said version of WW-1 & WW-2. Thus, on the strength of this unrebutted version of WW-1 and WW- 2, indicated above, it can be safely said that department has violated the principle of "last come first go" as enumerated in Section 25-G of the Act.

Though it is the case of the petitioner-department that services of the workman were dispensed with on account of appointment of regular incumbent, as per the stipulation contained in her appointment letter, but there is absolutely no explanation forth coming on behalf of the petitioner- department as to why they had adopted the pick and choose policy by retaining the person junior to the workman while terminating her services, C.W.P. No.2829 of 2005 3

due to appointment of regular incumbent. We are of the considered view that it is totally unfair labour practice on the part of the petitioner- department. The collective effect of aforesaid facts led the Labour Court to hold that even though Section 25-F of the Act is not applicable, even then the termination of the services of workman was illegal and unlawful.

While exercising the writ jurisdiction under Article 226/227 of the Constitution of India, this Court would not sit as a Court of appeal over the findings of fact recorded by the Labour Court. Even otherwise, this Court is satisfied that on the basis of evidence on record, the Labour Court has arrived at certain findings of fact, which are neither perverse nor based on no evidence. In these circumstances, it would not be possible to interfere with the award given by the Labour Court The petition is wholly without merit and the same is dismissed accordingly. No costs.

(ARVIND KUMAR)

JUDGE

September 11,2006 (J.S. NARANG)

Jiten JUDGE


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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