CWP No.3817 of 2008 and CWP No. 5113 of 2009 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH CWP No.3817 of 2008 Date of decision July 15, 2009 Sonia Sharma w/o Sh. Santosh Sharma, r/o 993 Sector 9, Faridabad ....... Petitioner Versus The Presiding Officer, Labour Court-II, Faridabad and another ........ Respondents CWP No.5113 of 2009 M/s Bhartia Cuttler Hammer, ....... Petitioner Versus The Presiding Officer, Labour Court-II, Faridabad and another ........ Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:- Mr. Gaurav Kathuria, Advocate for the petitioner in CWP No. 3817 of 2008 and for respondent No.2 in CWP No. 5113 of 2009. Mr. Manu K. Bhandari , Advocate for respondent No.2. In CWP No. 3817 of 2008 and for the petitioner in CWP 5113 of 2009. **** 1. Whether reporters of local newspapers 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 two writ petitions arise out of the same award passed by the Labour Court answering a reference partially in favour of the workman and directing compensation of Rs.25,000/- after finding that the retrenchment was illegal and contrary to the provisions of Section 25-F of the Industrial Disputes Act, 1947. 2. The admitted case was that the workman had CWP No.3817 of 2008 and CWP No. 5113 of 2009 2 been offered service in the Factory on 24.8.1996 as a trainee-typist-cum- receptionist for a period of three months. Her services were retained by periodically extending the alleged training up to 28.2.1999. The workman challenged her termination by means of a Civil suit and when it was dismissed she sought for a reference to the Labour Court. The suit was filed on the verge of termination and it was dismissed by the time the workman had been terminated from service and she sought reference of the dispute to the Labour Court and adjudication came to be done under such circumstances. 3. The Labour Court found that the periodical extensions which the employer was giving in the post of typist-cum- receptionist was unfair labour practice and held that she had worked for more than 240 days and the termination was illegal. However, there were other findings which were inconsistent with his own finding of the illegal termination. For instance, the Labour Court also found that since she was a trainee, a salary of more than Rs.1600/- could not have been given. By the definition of ' workman' contained in Section 2(s), the Labour Court was under the assumption that clause (iv) of Section 2(s) excepted from the definition of workman a person employed in a supervisory capacity drawing wages exceeding Rs.1600/- per month and hence the petitioner could not be a 'workman'. It was no body's case that the person was employed under supervisory capacity held powers of managerial nature. Having held that the periodical extensions as the trainee was unfair labour practice the Labour Court was not justified in stating in another portion of the judgment that she was not a workman. 4. There were other inconsistencies in the judgment as well. The Labour Court also stated that merely because the termination was not in compliance to the directions under Section 25-F a person could CWP No.3817 of 2008 and CWP No. 5113 of 2009 3 not be directed to be regularized or reinstated. To such a conclusion the Labour Court came by reference to several decisions. The Hon'ble Supreme Court had dealt with cases of Public employment and how violation of Article 14 and 16 in the matter of appointments where workman sought back door entry and against recruitment rules were not entitled to be regularized. The Labour Court failed to note that it was not adjudicating a case of public employment but was trying to resolve a reference that dealt with employment with a private employer. 5. Learned counsel appearing for the Management challenging the award of compensation in CWP No. 5113 of 2009 states although the judgment in State of Karnatka Vs. Uma Devi and others dealt with public appointments, still the law was that if a private employer cannot be compelled to reinstate even if the Court found that there was a illegal termination and there was non-compliance of Section 25-F. He refers me to the decision in Hon'ble Supreme Court reported in Gangadhar Pillai Vs. M/s Siemens Ltd. 2007 (1) LLJ 717 that dealt with the case of a workman who had completed 240 days of service explaining the philosophy of Section 25-F, the Hon'ble Supreme Court had held “ it is not a law that on completion of 240 days of continuous service in a year employee becomes entitled to regularization. The concept of 240 days was introduced to fasten a statutory liability on employer to pay compensation to be computed in manner specified in Section 25-F of Industrial Disputes Act and not for any other purpose”. The Hon'ble Supreme Court was actually dealing with the case of a person who had been appointed on projects and found that on completion of a project such an employee could be terminated from service even if the person had worked for more than 240 days. The case of a person working on a project for a particular period and the termination that results on the completion of CWP No.3817 of 2008 and CWP No. 5113 of 2009 4 that period can afford no guiding principle to this case for in the former case, even the expression retrenchment might not used and a termination of service on the completion of a contract period would be excepted by Section 2 (oo) (bb) of the Act. Learned counsel for the petitioner refers me to Escorts Limited Vs. Presiding Officer and another (1997) 11 SCC that dealt with the case of appointment for a specified period of two months and the power to terminate the service even before the completion of the period was held not to amount to retrenchment. Reserve Bank of India Vs. Gopinath Sharma 2006 (3) SCT 591(SC) that dealt with the case of a probationer whose services had been terminated before the end of probation without assigning any reason. 6. In this case, the periodical extensions which the workman had been granted by themselves cannot mean that the employment had been for a specific period and that the termination resulted in the manner which law contemplated under Section 2 (oo) (bb). On the other hand, there is a specific finding in this case that such peridocial extensions by purporting to keep her on training was unfair labour practice. The Management had not placed any evidence before me to suggest that the workman had been really undergoing any form of training. The very nature of job being a typist may not admit of a training for a period of three years and there was again no evidence that any special training had been given for the workman during the period of three years. Admittedly, the appointment order itself limited the training initially for a period of three months and it was understandable. If there is a justification for extending such period there ought to have been an explanation given that the workman was not up to the mark and she required consistent training. There is no such evidence on record. It is not possible for me to accept the contention on behalf of the Management that CWP No.3817 of 2008 and CWP No. 5113 of 2009 5 the workman was only a trainee and her services had been terminated before the completion of the period for which she was engaged. 7. In view of the finding of the Labour Court, which I affirm, that the appellant had been deliberately employed by the Management as a trainee to keep her on tenter-hooks, I reject the contention that her termination did not amount to retrenchment under Section 25-F. The denial of the right by the Labour Court was unjustified. 8. In some measure, the 'workman' had precipitated her problems and contributed to the position that she is in. An institution of a suit before she was terminated was really in the nature of a attempt to enforce a contract of service which the Civil Court could not have evidently granted. Even while directing reinstatement, I do not think it would be proper to award to her the entire back wages and it would accord with justice that she is given only 25% of the back wages. The order of the Labour Court is set aside and modified to the extent that the 'workman' is entitled to reinstatement with continuity of service and would also be entitled to 25% back wages. There shall however, be no direction as to costs. CWP No.3817 of 2008 is allowed and CWP No. 5113 of 2009 is dismissed. (K. KANNAN) JUDGE July 15, 2009 archana