C.W.P.No.7355 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.7355 of 2009 Date of Decision:- 26.05.2010 Nagar Panchayat, Rayya ....Petitioner(s) vs. Kuldip Kaur and another ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.Vishal Gupta, Advocate, for the petitioner. Mr.M.K.Dogra, Advocate, for respondent No.1. *** AUGUSTINE GEORGE MASIH, J. (Oral) Prayer in the present writ petition is for setting aside of the Award dated 19.11.2007 (Annexure P-5) passed by the Labour Court, Amritsar, vide which the reference has been answered in favour of the respondent-worklady holding her entitled to reinstatement in service with back wages. As per appointment letter dated 28.11.1994, there was a specific provision provided therein that the Nagar Panchayat, Rayya, shall have the right that they can terminate the services of the respondent at any point of time without assigning any reason for which the respondent would have no objection. After accepting the said terms of contract, the respondent-worklady joined the services of the petitioner on 28.11.1994 on contract basis and continued in service till 31.3.1997 when her services were terminated in accordance with the terms of her appointment C.W.P.No.7355 of 2009 -2- (Annexure P-1). Counsel, therefore, contends that the termination of the respondent-worklady would be covered by exception (bb) to Section 2(oo) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) which would not amount to retrenchment and, therefore, no relief could have been granted to the respondent-worklady by the Labour Court through the impugned Award. On the other hand, counsel for the respondent-worklady contends that the Labour Court has duly considered all the details and the evidence which have been produced before the Court and has also gone into the reasons for termination of services of the respondent-worklady. He contends that the termination of services of the respondent-worklady was not because of non-renewal of the contract as per the terms of her appointment but because of her alleged misconduct of absence from duty and, therefore, it cannot be said that the termination of the services of the respondent-worklady is in consonance with Clause (bb) to Section 2(oo) of the Act. I have heard counsel for the parties and have gone through the records of the case. The Labour Court vide its impugned Award, in paras 9 to 11 thereof, has, in detail, considered all the evidence and different aspects of the case. Paras 9 to 11 of the said Award read as follows:- “9. Ld.AR for the management vehemently argued that workman was employed on contract basis vide appointment letter Ex.R-2 whereunder her services were liable to be terminated at any time without assigning any reason. Since further sanction for the post C.W.P.No.7355 of 2009 -3- which the workman was holding was not accorded in the budget for the year 1997-1998 as is clear from letter dated 07.04.97 Ex.R-3 and a circular Ex.R-4 was issued against appointment of persons on ad hoc basis, so the workman was removed from service. In her view removal of the workman is on the ground of non sanctioning of the post in the budget for the year 1997- 1998 and due to the direction of the govt. in the circular aforesaid and as such the same is perfectly valid. Ld.AR for the workman has however repelled the aforesaid contention on the ground that services of the workman were terminated on the ground of alleged misconduct and not because of non sanctioning of post in the budget or direction of the Govt. as alleged. Position in this respect is clear from the cross examination of the workman herself as WW-1. Since no reasonable opportunity of hearing was given to her before such removal cannot be legally sustained. In support, he has relied upon a ruling of Hon'ble Apex Court in M/s Scooters India Ltd. V/s M.Mohammad Yaqub and another 2001 (1) RSJ 166. He has urged for reinstatement of the workman with full back wages. 10. I have anxiously considered rival contentions aforesaid in the light of evidence on record and have found the contention of the Ld. AR for the workman as factually correct and legally maintainable. It is not C.W.P.No.7355 of 2009 -4- disputed that workman had worked from November 1994 till 31.03.1997 for more than two years and four months. No formal order of her removal was passed from which reasons for removal can be made out. The contention of her removal in view of non sanctioning of post in the budget in the year 1997-98 and due to the direction of the Govt. vide circular Ex.R-4 is not supported by documents. Workman was removed from service on 01.04.1997 whereas letter dated 07.01.1997 concerning budget appears to have been received by the management on 21.04.1997 as per diary No.230 noted thereupon. Circular letter Ex. R-4 also appears to have been received on 04.04.1997 in view of diary No.223 noted thereupon. It is also noticeable that Ex.R-4 is in a respect of ad hoc employees appointed on 89 days basis. Therefore, Ex.R- 3 and R-4 are not attracted to the case of the workman. On the other hand, the contention of Ld.AR for the workman that she was removed on the basis of alleged misconduct which is supported from the following extract of cross examination of the workman herself as WW-1:- “It is incorrect to suggest that after joining my service with the respondent, I had proceeded in leave for 3 months without informing the authorities. It is correct that Batala is at a distance of 35/40 kms from Rayya. It is correct that I was married to a person belonging to C.W.P.No.7355 of 2009 -5- Batala. It is incorrect to suggest that due to my marriage at Batala, I had not been attending the office in time and this conduct of mine had also given to rise to various complaints.” 11. From the above extract it is clear beyond doubt that the workman was removed from service for her alleged misconduct. Workman specifically pleaded in her demand notice dated 23.10.2001 that person junior to her are still working in the management. No reply to this allegation is forthcoming in the written statement filed by the management. No record has been produced to show that other ad hoc employees employed by the management were also removed on the same date on which the workman was removed. MW-1 evaded the query in this respect by simply stating in his cross examination that he cannot say how many clerks were on the roll when the services of the workman were terminated and her contract was not renewed. Further, no period of contract was mentioned in her appointment letter Ex.R-2. Therefore, the question of non renewal of the contract does not arise at all. Evidently, this is not a case of disengagement of workman by non renewal of her contract but her removal is based on her alleged misconduct. Since workman was not given opportunity of hearing in respect of her misconduct before her removal so her removal/termination is proved to be C.W.P.No.7355 of 2009 -6- arbitrary and illegal and the same cannot be said to be justified in any manner whatsoever and resultantly the workman is held entitled to reinstatement on her old job. This view stands supported by principle laid down by the Hon'ble Apex Court in the authority relied upon by the Ld. AR for the workman.” A perusal of the above leaves no manner of doubt that the termination of the services of the respondent-worklady was not in consonance with the terms of the contract but was based upon her alleged misconduct. The findings recorded by the Labour Court and the relief granted to the respondent-worklady is in accordance with law. There is no merit in the present writ petition and, therefore, the same stands dismissed. May 26, 2010 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE