IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.18422 of 2006 Date of Decision:- 16.02.2009 Jagan Nath ....Petitioner(s) vs. Presiding Officer, Labour Court and others ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.J.C.Verma, Sr. Advocate with Ms.Meenakshi Verma, Advocate for the petitioner. Mr.D.S.Patwalia, Advocate for respondents No.2 and 3. *** AUGUSTINE GEORGE MASIH, J. (Oral) In the present writ petition, challenge is to the award passed by the Labour Court, Amritsar, dated 3.3.2006 (Annexure p-3) vide which the reference has been declined by the Court. Counsel for the petitioner contends that the petitioner-workman was appointed on contract basis for 89 days and on completion of the said contract, fresh appointments on contract basis were being given from time to time. In this way, the petitioner-workman had completed 2 years and 1 month of service i.e. from 29.5.1995 till 30.6.1997. Counsel contends that this would amount to unfair labour practice and the finding recorded by the Labour Court that it would be covered under the provisions of clause (bb) of Section 2 (oo) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) is contrary to the judgment of the Hon'ble Supreme Court in the case of Haryana State Electronics Development Corporation Ltd. C.W.P.No.18422 of 2006 -2- vs. Mamni, 2006 (3) RSJ 130, wherein the Hon'ble Supreme Court has said that successive re-appointments after a gap of one or two days of the workman on 89 days basis would not amount to the same being governed by Section 2 (oo) (bb) of the Act and this provision is not attracted as it would defeat the very object of the Act. The Hon'ble Supreme Court further went on to say that as the initial appointment was de hors the Rules, the workman would be entitled to compensation only. On the other hand, counsel for the respondent-University contends that there were specific contracts for a specified period for which the workman had worked and there was a specific stipulation therein that his services could be terminated at any time during the period specified in the contract. He further contends that the workman did not fulfill the basic qualification as prescribed for the post and, therefore, could not be reinstated in service and his termination will not be said to be in violation of the Act . Counsel for the respondent-University relies upon a judgment of the Hon'ble Supreme Court in the case of M/s. Haryana State FCCW Store Ltd. and another, vs. Ram Niwas and another, 2002 (5) SLR 277, and a Division Bench judgment of this Court in the case of Executive Engineer TRW (Works), UHBVN vs. Presiding Officer, Labour Court and another, 2009 (1) SCT 363, to contend that the workman would not be entitled to reinstatement and further that since the period of contract was for a specified period and the workman was dis-engaged as per the terms of the Contract, it would not amount to retrenchment. He further states that it will be covered by the provisions of Section 2 (oo) (bb) of the Act and, thus, no benefit can be granted to the workman. He, accordingly, submits that the C.W.P.No.18422 of 2006 -3- award deserves to be upheld. Counsel for the petitioner-workman in response to the submission made by the counsel for the respondent to the effect that the workman did not fulfill the qualification(s) and, therefore, was not entitled to the benefit of the Act, submits that when the workman was appointed initially on 17.5.1995, he did fulfill the requisite qualification(s) and it was during the continuance of his appointment that the University in its meeting dated 18.11.1995 changed the qualification(s) for the post rendering the workman unqualified for the post. Counsel states that it could not be given retrospective effect so as to deprive the workman of the benefit of re-appointment. I have given my thoughtful consideration to the submissions put-forth by the counsel for the parties and have gone through the judgments referred to by the parties. It is not in dispute that the finding recorded by the Labour Court that the stipulation as provided in the appointment letter that the services could be terminated on appointment of regular employees, is not borne out from the record. The appointment letters which have been placed on record as Annexures A-1 to A-5 do not indicate that such a stipulation was there. The only point, therefore, left out for consideration is as to whether the termination of the workman would be covered by the provisions of Section 2 (oo) (bb) of the Act so as to dis- entitle him of the relief of reinstatement with continuity of service and if the said termination is not covered by the provisions of Section 2 (oo) (bb) of the Act, to what relief the workman would be entitled to? A perusal of the judgment passed by the Hon'ble Supreme C.W.P.No.18422 of 2006 -4- Court in Mamni's case (supra), would show that the factual position with regard to the grant of successive reappointments after a gap of one or two days of the workman on 89 days elapsed after termination of service was termed by the Hon'ble Supreme Court to be not in accordance with the provisions as contained in Section 2 (oo) (bb) of the Act. The Hon'ble Supreme Court has held therein that the services of the workman had been terminated on regular basis and she had been reappointed after a gap of one or two days and such a course of action was adopted by the appellant with a view to defeat the object of the Act. The Hon'ble Supreme Court further said that Section 2 (oo) (bb) of the Act, therefore, would not be attracted to such like cases. The only distinction which can be drawn by the learned counsel for the respondent is that the petitioner-workman did not fulfill the qualification(s) on the date of his termination and therefore, could not be reinstated. Even if this contention of the learned counsel for the respondent is taken to be correct, then also in view of the fact that at the time of his initial appointment the workman did fulfill the qualification(s) till the non- renewal of his contract as alleged by the respondent, and was holding the post for which he was fully qualified, although the same may not be in accordance with the statutory Rules but still as the provisions of Section 25-F were not complied with, which is an admitted fact, and the termination being not as per exception (bb) to Section 2(oo), the termination is in violation of the Act. Therefore, the judgment relied upon by the counsel for the respondents i.e. in Ram Niwas's case (supra) would not be of any help to the respondents. C.W.P.No.18422 of 2006 -5- In view of the judgment of the Hon'ble Supreme Court in Mamni's case (supra), the workman would be entitled to compensation which is assessed as Rs.20,000/- as the workman has worked for 2 years. The impugned award dated 3.3.2006 passed by the Presiding Officer, Labour Court, Amritsar, is modified in the manner indicated above. The writ petition stands disposed of accordingly. February 16, 2009 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE Whether referred to Reporters ________ Yes/No