IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.4019 of 2009 Date of decision:07.07.2009 Jai Bhagwan ...Petitioner versus The Presiding Officer, Industrial Tribunal-cum-Labour Court, Hisar and another. ...Respondents CORAM: HON'BLE MR. JUSTICE K.KANNAN Present: Ms. Abha Rathore, Advocate, for the petitioner. Mr. Sudhir Mittal, 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 writ petition challenges the award of the Labour Court that dismissed the claim of the workman for reinstatement and for back wages. Admittedly, the workman was appointed as Patwari-cum- Clerk on 10.01.2002. On a resolution of second respondent, a copy of which is exhibited as W-8 (Annexure P-2), the Deputy Commissioner ordered the workman to be fixed on a pay of Rs.2600/- per month and it was expected that approval might be taken from the State Government. According to the workman, he worked for 240 days upto 06.09.2002, but he was not allowed to sign in the Attendance Register only in order that the total number of days did not reckon to 240 days and it fell short by one day. Civil Writ Petition No.4019 of 2009 - 2 - 2. To the claim for reinstatement, the response from the second respondent was that the workman had been employed only on a contractual basis for a period of 89 days to which alone the State Government had given sanction and therefore, the workman was not entitled to any notice of retrenchment in the manner sought and the case was excepted by the provisions of Section 2 (oo) (bb) of the Industrial Disputes Act and that being a contractual employee, he was not entitled to any notice of retrenchment or compensation. The contention was sought to be buttressed with reference to experience certificate which had been given by the Hisar Improvement Trust referring to his engagement as on contractual basis for 89 days. The management sought to take a leaf out of the contention of the workman himself by pointing out to the letter written by the President of the Trust to the Commissioner and Secretary Haryana Government as a reference to the completion of the service of the workman to 239 days and seeking orders for retrenchment of service after giving him a break, but it had also been stated in the same letter that the workman had been appointed on temporary basis and on rates fixed by the Deputy Commissioner on contractual basis. 3. The Labour Court accepted the contention of the second respondent and found that the workman who had been employed on contractual basis, and was not entitled to either notice or retrenchment compensation. 4. Before this Court, it was contended in order that Section 2(oo)(bb) will be attracted the workman who must be put on Civil Writ Petition No.4019 of 2009 - 3 - specific knowledge of the fact that the engagement was only on contractual basis and not as a daily wager simpliciter and as such, the workman's engagement must be specifically apprised and made aware to the terms of employment regarding the commencement and the end of the employment period. Learned counsel appearing for the workman relies upon a decision of Hon'ble the Supreme Court in S.M.Nilajkar and others Versus Telecom District Manager, Karnataka-(2003) 4 Supreme Court Cases 27, where Hon'ble the Supreme Court has made a reference as to how the termination of service of a workman engaged in a scheme or project may not amount to retrenchment within the meaning of 2(oo)(bb), where it set out the following four conditions to be satisfied:- “(i) that the workman was employed in a project or scheme of temporary duration; (ii) the employment was on a contract, and not as a daily- wager simpliciter, which provided inter alia that the employment shall come to an end on the expiry of the scheme or project; (iii) the employment came to an end simultaneously with the termination of the scheme or project and consistently with the terms of the contract; and (iv) the workman ought to have been apprised or made aware of the above said terms by the employer at the commencement of employment.” 5. The learned counsel also pointed out to the fact that the resolution appointing the workman made only reference to the engagement on temporary basis and the workman was never apprised at any point of time that it was only for a period of 89 days. Even the so- called sanction of the State for appointment for a period of 89 days on a Civil Writ Petition No.4019 of 2009 - 4 - contractual basis was not placed before the Labour Court. It was the further contention on behalf of the workman that the second respondent had deliberately disallowed the workman to sign in the Attendance Register in order that he did not complete 240 days that amounted to unfair labour practice. 6. As regards the contention that the workman was engaged on contractual basis, I have no hesitation in rejecting such a contention made by the second respondent in view of the law laid down by the Hon'ble Supreme Court referred to supra and the absence of any proof that the engagement of the services of the workman was only on contractual basis. Even as regards the completion of 240 days, Ex.W/7 clearly spells out that an attempt was made to ensure that the workman did not complete 240 days and it was a ploy to defeat him from the right of obtaining the benefit under Section 25 F of the Industrial Disputes Act. 7. Even while setting aside the order of the Labour Court, it has to be seen that in cases of public employment, no workman can claim a right to be regularized if the post is either not sanctioned or the appointment is not made in the manner provided under the rules or when the appointment was not approved by the Government. The workman would not be entitled to any more than compensation for termination of service without due notice under Section 25-F of the Act. For the period of one year that the workman was employed as a Patwari who admittedly had qualification to work as such and having regard to the technical nature of work that he had performed, in my view, the Civil Writ Petition No.4019 of 2009 - 5 - compensation could be Rs.20,000/- 8. Under the circumstances, the award of the Labour Court is set aside and the workman shall be entitled to compensation of Rs.20,000/- in lieu of notice under Section 25-F of the Industrial Disputes Act. 9. The writ petition is, accordingly, disposed of in the above terms. No costs. (K.KANNAN) JUDGE 07.07.2009 sanjeev