LPA No. 1413 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No. 1413 of 2009 Date of Decision 20.07.2010 Tarsem Lal -----Appellant Versus Haryana Land Reclamation and Development Corporation Limited and others ---Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE A.N. JINDAL Present: Mr. O.P. Gupta, Advocate for the appellant. Mr. Saurav Goyal, Advocate for Mr. Govind Goyal, Advocate for the appellant. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. Kumar, J. The instant appeal filed under Clause X of the Letters Patent is directed against the judgment dated 12.08.2009 passed by the learned Single Judge in C.W.P. No. 5841 of 2000. The learned Single Judge has recorded a categorical finding that the appellant had worked for less than 240 days. He was appointed as Accounts Clerk on 14.05.1990 on adhoc basis. After his appointment, one Jarnail Singh had been appointed on 16.07.1990 on regular basis. The services of the appellant were terminated on 11.09.1990. The LPA No. 1413 of 2009 -2- pleaded case of the appellant is that on retention of Jarnail Singh who was appointed later on would result into violation of principle of “last come first go” as incorporated by Section 25-G of the Industrial Disputes Act, 1947 (for brevity 'the Act'). The stand of the management-corporation before the Labour Court was that the case of Jarnail Singh is not comparable with that of the appellant as Jarnail Singh was appointed on regular basis whereas the appellant was appointed on adhoc basis for a period of 89 days. The extension granted to him after 89 days on 20.08.1990 was with a specific stipulation that he was not to be retained after regular appointment had been made. On account of regular appointment having been made his service were dispensed with and therefore, his termination was covered by exception as laid down under Section 2 (oo)(bb)of the Act. The Labour Court as well as the learned Single Judge has found that the appellant had completed less than 240 days and in any case Section 2(oo)(bb) of the Act was attracted to his case, which is an exception to Section 25-F. The view of the learned Single Judge is evident from para 6 of his order, which reads thus: “6. I do not think that any of the decisions will come to the aid of the petitioner in view of the fact it is not merely a case of a workman who though had not completed 240 days had been retrenched in violation of the principle enshrined in Section 25-H. In order the said provision is applied, first of all it should be proved LPA No. 1413 of 2009 -3- that the workman had been 'retrenched'. In this case, the order of appointment is for for a specific period of 89 days and the extension which he obtained on his written request specifically provided that further extension was given only till the appointment of another regular person. Such a regular person namely Jarnail Singh had been appointed, is admitted even by the workman. Section 2(oo)(bb) is an exception to the term 'retrenchment' when it states that it shall not include 'termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein....”. I have already pointed out that the extension was given to him on a specific stipulation that the re-engagement was being done only till a regular employee was appointed. This stipulation is specifically excepted under the proviso contained in Section 2(oo)(bb) and therefore, the workman cannot assert any right under Section 25-H of the Industrial Disputes Act. This situation is squarely covered by a decision of the Hon'ble Supreme Court in Punjab State Electricity Board v. Darbara Singh- (2006) 1 SCC 121. In order that the workman is attracted to the provisions of Section 25-H, he shall be a LPA No. 1413 of 2009 -4- person who is retrenched and if the termination of service of a workman results otherwise than by such retrenchment, there is no scope for an adjudication that the termination was bad in law.” Mr. O.P. Gupta, learned counsel for the appellant has argued that from the record produced before the Labour Court, it transpired that there was another workman with the name of Surender Kumar, who was appointed later than the appellant. According to the learned counsel for the appellant, the claim of the appellant cannot be rejected merely because there was no pleading either in the demand notice or in the statement of claims filed before the Labour Court. On the other hand, Mr. Goyal, learned counsel for the respondent Nos. 1 and 2 has argued that neither the case of Jarnail Singh nor the case of Surender Kumar are applicable to the appellant because both of them stood on different footing. Those cases are not comparable with the case of the appellant. Having heard learned counsel for the parties and after perusal of the record, we are of the considered view that the instant appeal lacks merit and does not merit admission. The appellant did not complete even 240 days and his extension is found to be subject to a specific stipulation that as and when regular incumbent would join, his services were to be terminated. Therefore, the Labour Court as well as the learned Single Judge, have rightly held that it was a contractual appointment within the meaning of Section 2(oo) LPA No. 1413 of 2009 -5- (bb) of the Act. The case of the Jarnail Singh is not comparable to that of the appellant because he was appointed on regular basis and both are not comparable. The case of the Surender Kumar, which has been found from the record would also not come to the rescue of the appellant because there was no pleading set up by the appellant with regard to nature of his employment and as to whether it was contractual or regular. In the absence of specific pleadings, it cannot be conjecturally submitted that the appellant has been illegally dismissed from service. In the absence of particulars of the aforesaid Surender Kumar, it was not possible either for the Labour Court or for the Learned Single Judge to record any finding. Accordingly, the appeal is liable to be rejected. As a sequel to the above discussions, the appeal fails and order of the learned Single Judge is upheld. Consequently, the appeal is dismissed. (M.M. KUMAR) JUDGE (A.N. JINDAL) JUDGE July 20, 2010 Atul