C.W.P. No.8669 of 1993 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.8669 of 1993 Date of Decision: 19.11.2009 Haryana State Cooperative Apex Bank Limited, Bank Square, Sector 17-B, Chandigarh through its Managing Director .....Petitioner Versus The Presiding Officer, Labour Court, U.T. and another ....Respondents Present: Mr. Subhash Ahuja, Advocate for the petitioner. Mr. Gaurav Singla, Advoate for Mr. Sanjiv Gupta, Advocate for respondent No.2. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? -.- K. KANNAN J.(ORAL) 1. The award of the Labour Court that is challenged is a direction for reinstatement with continuity of service and back wages, which is restricted to 70%. The claim of the workman was that he had been employed on 04.09.1985 for an initial spell of 89 days, which period was renewed periodically, as contemplated in Entry 10, Schedule V of the Industrial Disputes Act, which provides for an assistance of "unfair labour practice" viz., “to employ workmen as badlis, casuals or temporaries and to continue them as such for years with the object depriving them of the status and privileges of permanent workmen.” If the workman had C.W.P. No.8669 of 1993 -2- completed 240 days and the contractual employment was to be a mere ploy to defeat the rights of the workman, the inevitable consequence is that the termination, which was effected without following the statutory mandate of Section 25-F was bad in law. 2. The issues, therefore, were whether the workman had completed 240 days, whether the case of unfair labour practice and whether entitled to reinstatement in service. The Labour Court found that this device of contract of specific periods of engagement was an unfair labour practice and also found the workman to have completed more than 240 days of continuous service. I confirm the findings. 3. It is a trite law that a workman shall not be entitled to reinstatement only by virtue of the fact that there had been a violation of Section 25-F of the Industrial Disputes Act. The relief of reinstatement shall be considered in the light of such circumstances like availability of work, the period of engagement, the number of years of service that he had and the abolition of any particular post. All these parameters will have to be examined in the context of pleadings and they cannot be merely matters of presumption that a post in a Scheduled Bank will not be available or that the engagement was against any statutory rules. The management had not taken any such plea that there had been no work available or that any regular appointment had been done, which resulted in the need to terminate the service. The several decisions, which the learned counsel refers to namely State of C.W.P. No.8669 of 1993 -3- Rajasthan Vs. Rameshwar Lal Gahlot 1996 (1) SCC 595 and two of the decisions of this Hon'ble Court in Kartar Singh Vs. State of Haryana and others 1995(1) RSJ 806 and Guru Jambeshwar University, Hisar Vs. Presiding Officer, Industrial Tribunal-cum- Labour Court, Hissar and another 2003(4) RSJ 727 address issues which are wholly different. In the decision in State of Rajasthan Vs. Rameshwar Lal Gahlot, the Hon'ble Supreme Court was dealing with the situation where the engagement was for a fixed term and the Court found that it was squarely covered under Section 2(oo)(bb) of the Industrial Disputes Act. There was no finding in the judgment that the contract was a ploy and that it amounted to unfair labour practice, which in this case is precisely the issue and the Labour Court has also found that the management was indulging in unfair labour practice. The decision in Kartar Singh Vs. State of Haryana and others was also a case where in relation to an engagement and termination that resulted from the circumstances covered under Section 2(oo)(bb), the Division Bench held that it did not amount to retrenchment to which the provisions of Section 25-F would apply. Same is also the situation in Guru Jambeshwar University, Hisar Vs. Presiding Officer, Industrial Tribunal-cum-Labour Court, Hissar and another where the Hon'ble Supreme Court dealt with the case of termination of service that resulted from the application of Section 2(oo)(bb) of the Industrial Disputes Act. These instances are wholly alien to the subject that we are dealing with where there is a specific finding C.W.P. No.8669 of 1993 -4- that the contractual engagement was a farce and the workman had been engaged for two years continuously deliberately to prevent him from claiming the benefits under the provisions of the Industrial Disputes Act, 4. Learned counsel appearing for the petitioner states that the management had kept Rs.1625/- ready through a notice dated 15.09.1987 and that was more than what he was entitled to. This contention is only stated to be rejected for, if the termination were to be effected on 10.07.1987, the amount of compensation shall have to be paid on the same day when the termination is effected, which would cover the notice period prescribed under the Act as well as reckoning to be made on the basis of salary for 15 days for every year of service. The workman had admittedly two years of complete service and he was, therefore, required to be paid one months salary plus the salary for the notice period, which would mean two months salary on the whole. It is not seen how an offer to pay Rs.1625/-, two months after the date of termination from service, constitutes any compliance of the statutory requirement. That contention is again without any basis or merit. 5. The relief which has been granted by the Labour Court accords with law and there is no scope for interference. The writ petition is dismissed with costs assessed at Rs.5,000/- awarded in favour of the workman. (K. KANNAN) JUDGE November 19, 2009 Pankaj*