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FARIDABAD COMPLEX ADMINISTRATION,THROUGH versus THE PRESIDING OFFICER, LABOUR COURT,

High Court of Punjab and Haryana, Chandigarh

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Faridabad Complex Administration,through v. The Presiding Officer, Labour Court, - CWP-199-1989 [2006] RD-P&H 9222 (26 October 2006)

In the High Court of Punjab & Haryana at Chandigarh.

1. Civil Writ Petition No.199 of 1989. Faridabad Complex Administration,

through Chief Administrator, Faridabad ... Petitioner vs

The Presiding Officer, Labour Court, .... Respondents Faridabad, and Shri Sukhbir Singh.

2. Civil Writ Petition No.200 of 1989. Faridabad Complex Administration,

through Chief Administrator, Faridabad ... Petitioner vs

The Presiding Officer, Labour Court, .... Respondents Faridabad, and Shri Om Parkash.

3. Civil Writ Petition No.201 of 1989. Faridabad Complex Administration,

through Chief Administrator, Faridabad ... Petitioner vs

The Presiding Officer, Labour Court, .... Respondents Faridabad, and Shri Khushal Singh.

Date of Decision : 23rd October, 2006.

Coram Hon'ble Ms. Justice Kiran Anand Lall.

Present: Mr.Manoj K. Sood,Advocate,for the petitioner.

Mrs.Abha Rathore,Advocate,for the respondents.

Judgment.

Kiran Anand Lall, J.

Three references, viz. no.589, 590, and 591 of 1985 were made by the Governor of Haryana, in exercise of powers conferred by Clause (c) of sub-section (1) of Section 10 of the Industrial Disputes Act, 1947 (to be referred as "the Act"), regarding an identical service dispute between three workmen, Sarvshri Om Parkash, Sukhbir Singh, and Khushal Singh, on one hand, and the management of M/s. Chief Administrator, Faridabad Complex *****

Administration, Faridabad, on the other, for adjudication, to the Labour Court, Faridabad, vide Haryana Government Gazette Notifications No.39138-43, 39145-50, 39152-57, all dated 20.9.1985. Reference No.589 of 1985 pertained to Om Parkash who was appointed by the petitioner- herein, on 22.4.1982, as a Road-Roller Driver, on monthly wages of Rs.810/-. Reference No.590 of 1985 was in respect of Sukhbir Singh who had been appointed by the petitioner-herein, on 21.4.1984, as a Fire-Brigade Driver, on monthly wages of Rs.830/-. The third reference bearing no.591 of 1985 pertained to Khushal Singh whose appointment was made by the petitioner-herein on 29.5.1984 as a Fire-Brigade Driver and his monthly wages were Rs.810/-. The case of the respondents (workmen) was that their services were terminated by the petitioner, vide separate identical letters dated 28.2.1985, on the ground that the Haryana Government had refused to approve their appointments. According to the respondents, termination of their services was illegal as it was in violation of the Industrial Disputes Act and also the Haryana Civil Services Rules, as they having already put in more than one year continuous service, they could not have been shunted out, in an arbitrary manner. Neither any notice was served upon them, nor one month pay was paid in lieu thereof. No retrenchment compensation was paid, either. They, therefore, prayed for their reinstatement into the job, with continuity of service and full back wages.

The material ground on the basis of which the petitioner contested the references was that the respondents did not possess the required educational qualification of matriculation, prescribed for the posts of drivers of Fire-Brigade and Road-Roller. Their cases had been referred to the Haryana Government for relaxation of this qualification but the *****

Government did not agree, and as such, the only option was to dispense with their services.

The Labour Court, accordingly, framed issues arising out of the respective references, and recorded evidence of both parties, led in respect thereof. At the stage of arguments, however, none appeared on behalf of the petitioner-herein (management). As such, ex-parte proceedings were taken against the petitioner-herein, and arguments addressed by the representatives of the respondents-workmen were heard. All the references were, ultimately, decided in favour of the workmen, ordering quashing of termination orders and their reinstatement into jobs with continuity of service, full back wages, and other future benefits also. A common award was recorded, by the Labour Court, in this regard.

Feeling aggrieved against the Labour Court award, the petitioner challenged it, by filing Civil Writ Petition No.199 of 1989 against reference no.590 of 1985, Civil Writ Petition No.200 of 1989 against reference no.589 of 1985, and Civil Writ Petition No.201 of 1989 against reference no.591 of 1985.

Since all the three writ petitions arise out of a common award, these are being disposed of, by recording a common order.

I have heard arguments addressed by Mr.Manoj K.Sood, learned counsel for the petitioner, and Mrs.Abha Rathore, learned counsel for the respondents,and have carefully gone through the records.

It is admitted case of the parties that the respondents are workmen. It is also not in dispute that their services were terminated, without giving any notice or pay in lieu of such notice, or the retrenchment compensation. The fact that they had been in the service of the petitioner for *****

more than one year, continuously, has also not been disputed. All these being admitted facts, the provisions of Section 25-F of the Act, would, in my view, definitely get attracted. This section reads as under; "No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until- (a) the workman has been given one

month's notice in writing indicating the reasons for retrenchment and the period

of notice has expired, or the workman

has been paid in lieu of such notice,

wages for the period of the notice;

(b) the workman has been paid, at the time of retrenchment, compensation which

shall be equivalent to fifteen days'

average pay [for every completed year

of continuous service] or any part

thereof in excess of six months; and

(c) xx xx xx xx xx xx"

(emphasis added)

Concededly, neither of the said two conditions was complied with, before doing away with the services of the respondents-herein. But, contention of the learned counsel for the petitioner is that the case of respondents would be covered under sub-section (bb) of Section 2 (oo) of the Act, and as such, termination of their services cannot be termed as "retrenchment". He relied upon upon 1994 (2) Supreme Court Cases 323 *****

M.Venugopal vs. Divisional Manager, Life Insurance Corporation of India, Machilipatnam, A.P. and another, in this regard.

Section 2 (oo) of the Act defines "retrenchment" as under:- "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) xx xx xx

(b) xx xx xx

[(bb) termination of the service of the workman as a result ..... ..... .... .... of such contract being terminated under a stipulation in that behalf contained therein; or]

(c) xx xx xx

Learned counsel for the petitioner contended that services of the respondents having been terminated during the probation period, their case would fall under sub-section (bb) of Section 2 and such termination would not amount to "retrenchment" within the meaning of sub-section (oo) of Section 2. He referred to para 2 of the appointment letter, Annexure P1, (it was not disputed that appointment letters of all the three respondents were identical) in this regard, which, inter-alia, provided that the appointee would be on probation for a period of two years with effect from the date of joining or to such period as may be extended and his services would be liable to be terminated during this period without any reason or notice with immediate effect. In this connection, it is material to note that the termination order dated 28.2.1985 (in all the three petitions) does not *****

indicate that the termination of respondents was the result of any inefficient, unsuitable work, or defect, of any other kind found in the respondents at any point of time, but it was result of refusal on the part of the Haryana Government to relax the prescribed qualification of matriculation. A reference to the appointment letter, Annexure P1 (identical in all three petitions), reveals that the appointments were not conditional viz. these had not been made subject to fulfillment of any specific condition or relaxation of any such condition by the Government. That being so, it cannot be said, by any method of interpretation, that services of the respondents were "terminated under a stipulation in that behalf" contained in their appointment letters.

M.Venugopal's judgment (supra), relied upon by the learned counsel for the petitioner, has no applicability to the facts of the cases in hand, as in that case, there was a stipulation in Clause 10 of the order of appointment that the confirmation of the appellant was dependent, inter-alia, upon the fulfillment of the minimum business guarantee set out in para 10 of his order of appointment. And, since the appellant did not reach the minimum target fixed under clause 10 of the order of appointment and his service was found not to the satisfaction of the competent authority, the contract of employment was, "terminated under a stipulation in that behalf, contained" in the order of appointment itself, and as such, it was found covered by sub-section (bb) of Section 2 (oo) of the Act. In the case of the respondents before this court, there was no stipulation in their appointment letters that the prescribed qualification of the posts against which they were being appointed, was matriculation, or that if the government refused to relax any such educational qualification, their services would be liable to be *****

terminated.

Learned counsel for the petitioner also contended that as it was an ex-parte award against the petitioner, the same be set aside and cases be remanded to the Labour court for fresh decision, after affording an opportunity of hearing to them. In this connection, it may be stated that the petitioner-herein was proceeded ex-parte, only at the stage of final arguments. Thereafter, the management-petitioner did apply for setting aside the ex-parte awards, but, undisputedly, in that application, too, none put in appearance on its behalf, and as such, that application was dismissed in default, with special costs. It does not, therefore, now, lie in the mouth of the petitioner to contend that it was not afforded an opportunity of hearing.

In any case, all contentions which the petitioner wanted to raise before the Labour Court, have been raised before this court and the same have been duly dealt with. On this ground also, there is no reason for which the cases should be remanded to the Labour court, for fresh decision.

In view of the above, all the three writ petitions shall stand dismissed with costs.

23rd October, 2006. (Kiran Anand Lall)

vs. 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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