IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.3618 of 1997 Date of decision:15.07.2009 Haryana Seeds Development Corporation Limited ...Petitioner versus The Presiding Officer, Labour Court, Ambala ...Respondents and another. CORAM: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. Vishal Gupta, Advocate, for the petitioner Mr.Shireesh Gupta, Advocate, for respondent No.2. --- 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 impugned is a direction by the Labour Court regarding justification for termination of services, when the Labour Court held that the workman was entitled to be reinstated in service with back wages and continuity of service. 2. The Haryana Seeds Development Corporation, a public body, which is the employer, challenges the award of the Labour Court on four grounds: Firstly, the workman had previously applied to the High Court for a similar relief questioning the very same order of termination and the writ petition had been dismissed as belated. An application for review was also dismissed. After the dismissal of the Civil Writ Petition No.3618 of 1997 - 2 - case by the High Court, it should be understood that the decision was on merits and a petition before the Labour Court was, therefore, barred by res judicata. Secondly, even before the Labour Court, the reference had been made nearly five years after the initial order of termination and therefore, the claim was belated and the Labour Court could not have entertained and granted no relief. Thirdly, the claimant did not fulfil the status as a workman within the definition of Section 2(s) of the Industrial Disputes Act. He was Seeds Development Assistant and was not a workman and therefore, he could not have any remedy under the Industrial Disputes Act. The fourth point that was argued was that the engagement was in ad hoc post and the services being terminable without assigning reasons, had in fact been terminated on the ground that the services were no longer required. According to him, even the initial engagement was not as per law and the appointment being violative of Articles 14 and 16 of the Constitution, the workman did not have a right to regularization. 3. As regards the plea that the claim is barred by res judicata, the Labour Court had dealt with the objection by reference to a Full Bench ruling of this Court in Teja Singh Versus Union Territory- 1981(1) SLR 274. The same issue has been dealt in a different fashion in the judgment of another decision of the Hon’ble Supreme Court in Haryana State Cooperative Land Development Bank Versus Neelam- 2005 (2) RSJ 439, that dealt with an action by a writ petition before the High Court seeking for issuance of writ of mandamus directing Civil Writ Petition No.3618 of 1997 - 3 - reinstatement. Though the petition was filed within a period of three years from the date when the cause of action arose, ultimately the workman had the writ petition dismissed as withdrawn and sought an adjudication before the Labour Court on a reference which was undertaken seven years after the order of termination. There had been two objections by the management: firstly, the petition before the Labour Court was barred by res judicata; and secondly, the claim has belated. The Labour Court had found the claim to be barred and the High Court set aside that finding. The Hon’ble Supreme Court, however, stated that although the principle of res judicata could not be applied even the principle of abandonment provided under Order 23 Rule 1 which lays down a rule of public policy shall not applicable to a case of this nature. It pointed out that a writ petition which could have been dismissed even on the ground of alternative remedy which was more efficacious, without going into the disputed questions of fact cannot operate to bar remedy by approaching the Labour Court. What the Hon’ble Supreme Court said with reference to Order 23 Rule 1 CPC shall apply as well for an adjudication rendered not on merits but by a dismissal on the ground of laches. 4. What was possible for a writ Court to apply as a ground of dismissal may not still be relevant in a case before the Labour Court where a greater latitude discretion is available and the Labour Court had exercised its discretion in admitting the claim. The decision of the Hon’ble Supreme Court referred to above is also an authority for the proposition that if a discretion is exercised in a particular fashion by Civil Writ Petition No.3618 of 1997 - 4 - taking note of the relevant factors, the High Court shall not interfere in the matter of such discretionary exercise. Therefore, I reject the contention, that there is a bar of limitation or that the claimed is belated. 5. Even as regards the contention that the workman did not fulfil his status as such, it has to be pointed out that no effort had been made by the management to take a specific plea as regards the status. The sweeping statement that the petition was not maintainable was sought to be urged as a point that was broad enough to accommodate a defence that the workman did not have such a status. The pointed attention of the Labour Court or the party could not have been brought to bear upon the conduct of parties to direct appropriate evidence in that regard. Even so, it shall be always the workman who claimed the status as a workman to establish his status as such and in view of contentions so raised disputing the status of the workman, the counsel for the respondent points out to the documentary evidence that had been produced along with the written statement. It is seen that the job profile of the workman is stated to be the allocation of various vegetables seeds of different sizes to be packed as shown in the statement (R-2/1, dated 21.10.1985). The other communications also refers only to the date for packing the vegetables seeds. Evidently the nature of activity that had been assigned to the petitioner was purely manual that fell within the definition of workman under Section 2(s) of the Industrial Disputes Act. I therefore also reject the contention that the petition before the Labour Court was not maintainable. Civil Writ Petition No.3618 of 1997 - 5 - 6. The last contention that requires a focus is whether the workman established the termination to be unlawful and whether he was entitled to reinstatement. The justification to the removal as proffered in the objection before the Labour Court was with reference to the appointment order that stipulated as follows:- “Sh.Jai Narain S/o Sh. Ram Chander is offered an appointment as S.P.A. on adhoc basis in the pay scale of Rs.600-1100/- w.e.f. the date he takes over as such and posted at H.S.D.C., Tohana. It is made clear to him that his appointment is purely on adhoc basis as stop gap arrangement till a regular candidate from employment exchange or Govt. is available, and terminable at any time without any notice and reason.” 7. The learned counsel appearing for the workman states that it contemplated that he could be displaced only by a regular candidate sponsored through Employment Exchange or Government. According to him, the post was never advertised nor any regular candidate was appointed and therefore, he was entitled to be continued in the same post. It was his further contention that the order of termination that was effected on 26.11.1986, did not state anywhere that the contingency by appointment of a regular candidate from Employment Exchange or Government had come into effect and that the termination was effected only on such contingency. The learned counsel for the workman also assails the termination order made without setting out any reason to be invalid. The learned counsel for the respondent also seeks to place reliance on a judgment of this Court as regards another workman in the same cadre who obtained the same relief in CWP No.1561 of 1989 Civil Writ Petition No.3618 of 1997 - 6 - where this Court by reference to judgment of Hon’ble the Supreme Court in Executive Engineer CPWD, Indore Versus Madhukar Purshottam Kolharkar and another-(2002) 9 Supreme Court Cases 622, held that even if a workman had been engaged on daily wages on purely temporary basis and that his service could be terminated any time, the appointment could not be taken as one falling with the exception mentioned under Section 2 (oo)(bb) of the Industrial Disputes Act. I also held that without specific orders by prescribing the period of appointment it shall not be permissible to invoke the provisions of Section 2 (oo)(bb). After the decision of this Court mentioned above, there has been a paradigm shift in the judicial approach following the decision of the Consitution Bench of the Hon'ble Supreme Court in State of Karnataka Versus Uma Devi-(2006) 4 SCC 1, that dealt with the case of public employment. The Bench held that mere length of service shall not determine whether a person is entitled to regularization or not. The Hon’ble Supreme Court also held that back door entry is anathema to the constitutional scheme enshrined through Articles 14 and 16 and appointments made without reference to recruitment rules would be illegal. The Haryana Seeds Development Corporation is a public body and it shall not be possible for the persons to be engaged in service on ad hoc basis on stop gap arrangement, pending regular appointments. The very tenor of language applied in the appointment orders spells out its illegality as well. In the dispensation that has come about through pronouncement of the Hon’ble Supreme Court and several decisions that followed it, it shall not be possible to follow what was laid down in the Civil Writ Petition No.3618 of 1997 - 7 - decision of this Court referred to above. I respectfully disagree with a view expressed in Executive Engineer CPWD case (supra) in view of the subsequent pronouncement of the Hon’ble Supreme Court in the Constitutional Bench. 9. Admittedly, the workman had been employed for 240 days before the date of termination and the termination was effected without any previous notice as required under Section 25-F of the Industrial Disputes Act. The statutory non-compliance enables a workman to claim compensation for the termination that has entailed. The workman has completed two years of service and in my view, compensation of Rs.25,000/- shall meet the justice. It is brought to my attention by the learned counsel appearing for the workman that the order of the Labour Court was given effect to and he was reinstated in service by express orders of this Court as an interim measure. By the very nature of things, an order that is passed interim, shall subscribe to the final dispensation and the workman cannot obtain any privilege for continuation in employment. The writ petition is, therefore, allowed in the manner indicated above. No costs. (K.KANNAN) JUDGE 15.07.2009 sanjeev