C.W.P No.13821 of 1998 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P No.13821 of 1998 Date of Decision: 21.07.2009 Ram Shankar .....Petitioner Versus Govt. Model Senior Secondary School, Sector 16, Chandigarh through its Principal and another ...Respondents Present: Mr.Vikas Singh, Advocate for the petitioner. None for respondent No.1. 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 petitioner was a Mali employed in a Government School at Chandigarh, whose services were alleged to have been terminated without notice. The adjudication undertaken by the Labour Court on a reference made to it when the workman raised an industrial dispute did not go in his favour. The Labour Court found that he had been employed at various intervals on temporary basis and there had been no sanction for continuance of his engagement by the D.P.I. (Schools) and consequently he was not entitled to any relief. 2. Learned counsel appearing for the petitioner points out that admittedly he had been working from 1988 and the so-called temporary basis was only to ensure that he did not complete 240 days in any one year to deprive him of the benefits under the Industrial0 C.W.P No.13821 of 1998 -2- Disputes Act. To him, the work of Mali in a school was really on regular basis and the management was resorting to unfair labour practice by periodically removing from service and re-engaging him to prevent a continuity of service from accruing to the workman. Even the documents filed by the management Ex.M-9 to M-20 showed that several orders that came to be passed of appointing him and relieving him from duty in periodical intervals were instances of such unfair labour practice. 3. Learned counsel appearing for the petitioner also pointed out that alongside his employment and removal from service, there was yet another person by name Anokhi Devi, who had been appointed as Sweeper in the same school and removed from service on the same day when the workman was removed. The adjudication before the Labour Court that was decided against her was ultimately upturned by this Court in Civil Writ petition No.12688 of 1998 by a judgment dated 29.01.2003. Referring to the reasoning of this Hon'ble Court that the petitioner in that case had been working for about 12 years where the Court found that periodical removal from service and re-engagement to constitute unfair labour practice and when it held that removal from service under such circumstances ought not to be understood as coming within the excepted clause under Section 2(oo) (bb) of Industrial Disputes Act, 1947 as regards the definition of the expression "retrenchment". The finding that termination of service, under such circumstances, without complying with the provisions of Section 25-F was held to be illegal, directed reinstatement. Learned counsel also relied on a decision of the C.W.P No.13821 of 1998 -3- Division Bench of this Court in C.W.P. No.7970 of 1991 where a Division Bench of this Court held of the same school in relation to services of a Sweeper that a direction for reinstatement made by a Labour Court was not liable for intervention. 4. Although the cases pertain to employees of the school employed and terminated at the same time and while some workmen met with success through orders of Court and obtained retention of their jobs, it is not possible to draw strength of either of the decisions in view of the emphatic pronouncements of the Hon'ble Supreme Court and of this Hon'ble Court commencing from the decision in Secretary, State of Karnataka Vs. Uma Devi and others 2006 (4) SCC 1 where the preponderance of judicial opinion is that in matters of public employment, mere length of service shall not grant to a workman a right of reinstatement and if either the entry is through backdoor or the engagement was in a non-sanctioned post or when the appointment did not take place through an approved mode after public advertisement, such a workman shall not be entitled to either regularization or reinstatement. While setting aside the order of the Labour Court that the termination from service did not amount to retrenchment and still finding that the termination effected without following the procedure laid down under Section 25-F was illegal, I cannot direct a reinstatement in view of the fact of definite material placed before the Labour Court that the sanction for continuation of the appointment was not granted by the D.P.I. (Schools) and specific instructions given vide Ex.36 not to engage any daily wage worker and that thereafter, no person was engaged by the department on daily C.W.P No.13821 of 1998 -4- wage basis. 5. The order of the Labour Court is set aside, in so far as it reasoned that the removal from service did not amount to retrenchment. The termination was bad for non-compliance of the requirement of Section 25-F and therefore, the workmen would be entitled to compensation for non-compliance of the said provision, which I estimate, having regard to the number of years that he put in and the long pendency of the case and the nature of employment at Rs.40,000/-. The writ petition is disposed of on the above terms. (K. KANNAN) JUDGE July 21, 2009 Pankaj*