C.W.P.No.4704 of 2001 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.4704 of 2001 Date of Decision:- 01.02.2010 Harinder Singh ....Petitioner(s) vs. The Union Territory of Chandigarh and others ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.Ashwani Parashar, Advocate, for the petitioner. Mr.K.K.Gupta, Advocate, for the respondents. *** AUGUSTINE GEORGE MASIH, J. By this order, I propose to decide Civil Writ Petitions No.4704 of 2001 and 12637 of 2009 both titled as Harinder Singh vs. The Union Territory of Chandigarh and others preferred by the same petitioner. In Civil Writ Petition No.4704 of 2001, the petitioner has claimed that after the termination of his services by the respondents vide order dated 21.11.1998 (Annexure P-2) six posts of peon and one post of Chowkidar had been advertised by the respondent-Bank vide advertisement dated February 3-9/2009 in the Employment News and the said advertisement has been issued without complying with the provisions of Section 25-H of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act') and therefore the petitioner has claimed that he has a prior right of appointment and a direction be issued to the respondents to re-employ him as Peon against one of the posts advertised, while in C.W.P.No.12367 of 2009 challenge is to the Award dated 10.12.2008 (Annexure P-8) wherein C.W.P.No.4704 of 2001 -2- the reference made on a demand raised by the petitioner stating therein that the termination of his services from the post of Peon vide order dated 21.11.1998 was not in accordance with law and, therefore, was entitled to reinstatement in service with all consequential benefits, stands answered against him. These writ petitions are being decided together as the sane have been preferred by the same petitioner wherein the facts are inter-twined and in both the writ petitions the claim is under the Industrial Disputes Act, 1947. The facts of the cases in brief are that the petitioner was appointed and he joined as a Peon in the respondent-Bank on probation for one year vide letter dated 3.4.1998. The Board of Directors of the Bank was removed by the Registrar, Cooperative Societies, Union Territory, Chandigarh and an Administrator was appointed. The services of the petitioner were terminated by the respondent-Bank vide order dated 21.11.2008 during the probation period, which was for one year, on the ground that his services were being dispensed with as no longer required, being beyond the sanctioned strength, with immediate effect. Salary of one month was also disbursed to him vide Demand Draft No.072567 dated 21.11.1998 as compensation in lieu of notice. The petitioner issued a demand notice under Section 2-A of the Act dated 11.1.1999. The conciliation proceedings failed and a failure report was submitted by the Assistant Labour Commissioner-cum-Conciliation Officer under Section 12 (4) of the Act to the Government. The demand notice of the petitioner was rejected by the Government vide order dated 24.6.1999 on the ground that the petitioner had worked for less than 240 days. The petitioner challenged C.W.P.No.4704 of 2001 -3- this order by filing C.W.P.No.12760 of 1999 which was allowed by this Court vide order dated 20.11.2000 whereby the order rejecting the demand notice was set aside and the case was remanded to Union Territory, Chandigarh for fresh decision in accordance with law. On receipt of the order passed by the High Court, the matter was referred to the Labour Court which was adjudicated upon and the reference was answered against the workman leading to its challenge through C.W.P.No.12367 of 2009. Counsel for the petitioner as also counsel for the respondent addressed arguments jointly in both the writ petitions and, therefore, are being considered and decided together with the consent of the counsel for the parties. Counsel for the petitioner contends that the termination of the services of the petitioner vide order dated 21.11.1998 is in violation of the terms of his appointment letter so issued to him. He refers to the order of appointment conditions No.1 and 2 to contend that the services of the petitioner could be terminated within the period of probation i.e. one year if his work and conduct was not satisfactory during or at the end of the probation period. No other ground was given in the appointment letter for which the services of the petitioner could be terminated. It was only after the expiry of period of probation, condition No.2 of the appointment letter which stipulated that one month's notice or pay in lieu thereof could be given by either of the parties for terminating the contract of employment. The termination of the services of the petitioner was on the ground that his services were no longer required as they were beyond the sanctioned strength, which was not a part of the condition which could be pressed into service to terminate his services during the period of probation, his services C.W.P.No.4704 of 2001 -4- were illegally terminated and, therefore, he was entitled to reinstatement in service with all consequential benefits. His further contention is that the petitioner was appointed as a Peon and even if it is taken that his services were dispensed with for the reason that he was appointed beyond the sanctioned strength but on availability of the posts which were advertised in the Employment News dated February 3-9/2001, the provisions of Section 25-H of the Act were required to be complied with meaning thereby that the petitioner had a prior right of being appointed to the post and, therefore, the respondents have violated the provisions of the Act entitling the petitioner to re-employment in service as Peon against one of the posts which were available with the Bank. He relies upon a judgment of the Hon'ble Supreme Court in the case of Central Bank of India vs. S.Satyam and others 1996 (4) SCT 143 (SC) to contend that conditions of retrenchment under Section 25-F of the Act are not necessary to be fulfilled for application of Section 25-H in recalling for re-employment as every workman is entitled to the benefit of Section 25-H of the Act subject to his seniority. He, on this basis, prays that the present writ petitions deserve to be allowed and the petitioner be re-employed/reinstated in service with all consequential benefits. On the other hand, counsel for the respondent-Management, submits that the petitioner along with 25 others persons were appointed by the then Managing Director of the Bank without advertisement/without any requisition to the Employment Exchange, beyond the sanctioned strength in the cadre of the Bank and without following the due process of selection on an application submitted by the candidates itself including the petitioner. Orders of appointment were issued at the same time in a totally arbitrary and C.W.P.No.4704 of 2001 -5- illegal manner. As per Rule 3 of the Chandigarh Cooperative Financing Institutions Service Rules (as applicable to respondent No.4-Bank), prior approval of the Registrar, Cooperative Societies was required for determining the substantive strength of a cadre or for any change in the strength of the Bank to be made, however, no prior approval of the Registrar, Cooperative Societies was obtained by the then Managing Director of the Bank and he made the appointments to various posts in utter violation of the aforesaid Rules. As various irregularities were committed by the then Managing Director and the Board of Directors of the respondent-Bank, the Registrar Cooperative Societies, U.T., Chandigarh ordered the removal of the Board of Directors of the Bank and appointed an Administrator for running the affairs of the Bank. On going through the records of the Bank, it had come to light that appointment of the petitioner along with 25 others was made in an illegal manner and in violation of the statutory Rules and principles governing the conditions of service. Accordingly, all these illegal appointments were terminated after giving them one month's salary in lieu of notice. Except the petitioner Harinder Singh, all other 25 other similarly terminated persons challenged the action of the bank by invoking the writ jurisdiction of this Court, through C.W.P.No.17994 of 1998 titled as Jasmer Singh and others vs. Chandigarh State Cooperative Bank Ltd. and another. The said writ petition was dismissed by a Division Bench of this Court vide order dated 18.12.1998. In the said writ petition also, the petitioners had raised one of the points that since the Registrar, Cooperative Societies had sanctioned the various posts vide order dated 3.12.1998, they should be adjusted against these newly created posts but their plea was rejected by this Court. Review C.W.P.No.4704 of 2001 -6- application being R.A.No.66 of 1999 was preferred by the petitioners wherein one of the grounds raised was that their termination from service was in violation of the terms of their appointment, which ground was not accepted by this Court and the said review application too was dismissed vide order dated 5.3.1999. He contends that the Special Leave Petition preferred by the petitioners against the dismissal of the writ petition, stands dismissed by the Hon'ble Supreme Court and thus, the judgment of the High Court has attained finality. Apart from this, counsel for the respondent submits that a similar plea with regard to non-compliance of the provisions of Section 25-H of the Act was raised by one Sh. Abhimanyu along with four others who were similarly placed as the petitioner in C.W.P.No.7273 of 2001, which was also rejected by the learned Single Judge vide order dated 6.11.2001. Letters Patent Appeal No.12 of 2002 was preferred by the petitioners which too was rejected by a Division Bench of this Court vide order dated 31.1.2002. He, on this basis, submits that the present writ petitions have no merit and, therefore, deserve to be dismissed. I have heard counsel for the parties and have gone through the records of the case. The first contention which has been raised by the counsel for the petitioner is that the services of the petitioner was terminated in violation of the terms of his appointment letter and , therefore, the same was illegal and deserves to be set aside. Conditions No.1 and 2 of the appointment letter dated 3.4.1998 read as follows:- “1. You will be on the probation for a period of one year and in case your work and conduct is not found satisfactory, the Management has every right to terminate your services during or at the end of C.W.P.No.4704 of 2001 -7- probation period. 2. After the expiry of the period of probation, in case you intend to leave the job, you shall have to give one month's notice or pay in lieu thereof. Similarly, the Management can also terminate your services by giving one month's notice or pay in lieu thereof.” A perusal of this condition would show that the services of the petitioner could be terminated by the respondents during or at the end of the period of probation of one year, in case the work and conduct was not found satisfactory. After the expiry of period of probation, either of the parties could by giving one month's notice or pay in lieu thereof, for terminating the contract of appointment. In C.W.P.No.17994 of 1998 which was preferred by the employees who were similarly situated as the petitioner and whose services were terminated by the respondent-Bank being beyond the sanctioned strength of the bank, a Division Bench of this Court considered this very aspect of the matter and had in paras 7 and 8 of the judgment reported as Jasmer Singh's case (supra) held as follows:- “7. Still further, it deserves mention that the petitioners had been appointed on probation. It had been observed in the order that “you will be on probation for a period of one year .........”. It was further provided that the Management “has every right to terminate your service during or at the end of the probation period. Having been appointed in April/June 1998, the petitioners had not completed period of probation in November,1998 when their services were terminated. 8. In view of the above, it is clear that sanctioned posts did not, in fact exist at the time when the petitioners were appointed. No process of selection was followed when C.W.P.No.4704 of 2001 -8- the appointments were made. The appointments being illegal were rightly terminated vide orders dated November 21, 1998. Mr. Patwalia, however, contends that the petitioners had a right to be heard. He relies on the decision in Civil Writ Petition No. 13697 of 1996 decided by a Single Bench of this Court on April 8, 1997. In this case the factual position was totally different. The appointments had been made after following the prescribed procedure. The selected candidates were working on the higher posts. Their services were terminated in pursuance of an enquiry conducted by the Government. The petitioners had not been associated with that enquiry. In that situation, it was observed that the petitioners had a right to be heard. However, nothing of the sort has happened in this case. The petitioners have not been appointed after following the prescribed procedure. No sanction for their appointment had been sought. The orders of termination have been passed as sanctioned posts are not available. If the authority had kept quiet and allowed the period of probation to elapse the petitioners may have claimed that they are deemed to be confirmed. The authorities have passed innocuous orders of termination. In this situation, the petitioners were not required to be given a hearing and the action of the authorities in proceeding to pass the orders without any notice cannot be said to be either arbitrary or illegal.” Thereafter, in Review Application No.66 of 1999 which was preferred by the petitioners, the Hon'ble Division Bench while considering the contention of the petitioners with regard to their termination being not in consonance with the terms of their contract, held as follows:- “Secondly, even if this aspect of the matter is over- looked, the term of appointment permitting the employer to terminate the services of the employee during the C.W.P.No.4704 of 2001 -9- period of probation cannot be said to be illegal or unfair. When a person is appointed on a specific condition that he will be on probation, the employer has a right to adjudge the suitability of the employee in the light of his performance. The employee is on trial. If his clear and well-recognised right to terminate the services by passing an innocuous order. This is precisely what had been done in the present case. There is no arbitrariness or infairness in the action.” In the light of the above observations of the Division Bench of this Court, the contention as raised by the counsel for the petitioner cannot be accepted. In any case, a person who is on probation can be terminated from service not merely because his work and conduct was not found satisfactory but also for the reason that his appointment is not in consonance with the statutory rules governing the service. If an appointment to a post is not in accordance with law, the terms and conditions as stipulated in the appointment letter would itself be illegal and cannot be pressed into service by the illegally appointed person that it would be binding on the employer when the employer himself has come to a conclusion that the appointment was not in accordance with law. A contract of an employee which is not in consonance with law, would not confer any legal right upon the employee which could be pressed in a Court of law against the employer that the same has not been complied with by the employer. For a contract to be enforceable, the same should be in accordance with law and if it is not in accordance with law, the same cannot be pressed into service by the parties to take any benefits out of it. The contention, thus, raised by the counsel for the petitioner cannot be accepted and is hereby rejected. As regards the contention of the counsel for the petitioner that C.W.P.No.4704 of 2001 -10- the provisions of Section 25-H of the Act have not been complied with, as the petitioner has not been called upon for re-employment against one of the posts which have become available with the respondents on their creation and the petitioner has a prior right as per the provisions of Section 25-H of the Act, also does not hold good in the light of the fact that this Court in one of the cases of the co-employees i.e. Abhimanyu and others vs. The Union Territory of Chandigarh and others, C.W.P.No.7273 of 2001, rejected vide order dated 6.11.2001 a similar claim. Thereafter, Letters Patent Appeal No.12 of 2002 preferred by the petitioners against the judgment passed by the learned Single Judge was decided by this Court vide order dated 31.1.2002 wherein it has been observed as follows:- “We have heard learned counsel for the appellants and examined the record of this case as also pertaining to Civil Writ Petition No. 17994 of 1998. In Civil Writ Petition No. 17994 of 1998, even though provisions contained in Section 25-H of the Act were not directly the subject matter of decision but at the same time, the contention of the appellants, who were petitioners in Civil Writ Petition No. 17994 of 1998, was that since the posts were available now and the respondents had resolved to create the same, the petitioners should be deemed to have been appointed. This contention was noted and repelled. Even though, therefore, relief may not have been asked under the provisions of Sec. 25-H of the Act as such, it was indeed contended that in view of the availability of posts, the petitioners should be permitted to continue. That being so, it can not be said that the issue involved in this case was not the subject matter of decision in CWP No. 17994 of 1998. That apart, in view of this Court, provisions of Sec. 25-H of the Act can be availed when the posts on C.W.P.No.4704 of 2001 -11- which the employees have been retrenched from service were legally obtained by them. There is a firm finding of fact recorded in C.W.P. No. 17994 of 1998 that the petitioners came to be appointed without any advertisement and at the time when the posts were not even sanctioned. The entry of the petitioners, in other words, was a back-door entry and the same was invalidated. No right of re-employment arises under the provisions of Section 25-H of the Act if the earlier appointment was not in accordance with law. We find no merit in the contention of the learned counsel appearing for the appellants based on provisions of Section 25-H of the Act.” A perusal of the above Division Bench judgment of this Court leaves no manner of doubt that the petitioner has no right to hold the post or re-employment under Section 25-H of the Act. The reason is simple that an employee who has been retrenched from a post which he had obtained by legal means, would only be entitled to the benefit of Section 25-H of the Act. The termination of the services of the petitioner was from a post which he was holding not in accordance with law and, therefore, cannot be held entitled to the benefit of Section 25-H of the Act. The judgment relied upon by the counsel for the petitioner i.e. Central Bank of India (supra) would not be applicable to the facts of the present case in the light of the above observations. In view of the above, I do not find any merit in the two writ petitions preferred by the petitioner and the same stand dismissed. February 01, 2010 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE C.W.P.No.4704 of 2001 -12- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.12367 of 2009 Date of Decision:- 01.02.2010 Harinder Singh ....Petitioner(s) vs. The Chandigarh State Cooperative Bank Limited and another ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.Ashwani Parashar, Advocate, for the petitioner. Mr.K.K.Gupta, Advocate, for the respondents. *** AUGUSTINE GEORGE MASIH, J. (Oral) For orders, see separate detailed order of even date passed in C.W.P.No.4704 of 2001 titled as Harinder Singh vs. The Union Territory of Chandigarh and others. February 01, 2010 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE