C.W.P.No.16652 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.16652 of 2009 Date of Decision:- 14.05.2010 Ram Baran ....Petitioner(s) vs. The Presiding Officer, Central Govt. Industrial Tribunal & others ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.Shailendra Sharma, Advocate, for the petitioner. Mr.Puneet Gupta, Advocate, for the respondents. *** AUGUSTINE GEORGE MASIH, J. (Oral) Prayer in the present writ petition is for setting aside of the Award dated 10.11.2006 (Annexure P-5) passed by the Industrial Tribunal- cum-Labour Court-II, Chandigarh, vide which the reference has been answered against the petitioner-workman holding him entitled to no benefits as his appointment was on contractual basis and his termination would not amount to retrenchment, being covered by exception (bb) of Section 2 (oo) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act). Counsel for the petitioner contends that the petitioner was initially appointed as a Gardener on daily wage basis on 9.7.1999. He continued as such till 31.12.1999 and thereafter he worked with the respondent-Managment till 30.2.2002 when his services were terminated. C.W.P.No.16652 of 2009 -2- He contends that at the time of termination of his services, neither any notice nor pay in lieu of notice or retrenchment compensation which is mandated as per the provisions of Section 25-F of the Act was given. The findings recorded by the Labour Court that the petitioner was appointed on contract basis after the initial appointment from 9.7.1999 to 31.12.1999 on daily wage basis, cannot be sustained. This, he submits on the basis of the fact that an application dated 8.11.2005 (Annexure P-4) for summoning of the records was preferred by the petitioner wherein despite an order passed by the Labour Court, the said records were not produced by the Management and, therefore, the adverse inference ought to have been drawn against the Management. His further contention is that the documents Exhibit MW-1/2, MW-1/3 and MW-1/4, which show the appointment of the petitioner to be on contractual basis, are all manufactured documents by the Management at a subsequent stage just to scuttle the rights of the petitioner. He says so on the basis of the fact that the said documents were issued after the alleged contract had already commenced whereas the said letters were issued subsequently and at times, virtually at the fag end of the termination of the contract. Reliance placed by the Labour Court on these documents to return a finding that the appointment of the petitioner-workman is contractual, thus, cannot be sustained. He, thus, prays that the present writ petition be allowed and the Award impugned be set aside thereby ordering reinstatement of the workman in service with all consequential benefits. On the other hand, counsel for the respondents submits that although the initial appointment of the petitioner was on daily wage basis but with effect from 1.1.2000 till the date of his termination, there were C.W.P.No.16652 of 2009 -3- three contracts between the petitioner and the respondent-Management. The first contract was for one year i.e. from 1.1.2000 to 31.12.2000 Exhibit MW-1/2 wherein the petitioner-workman was given a consolidated salary of Rs.2200/-. The second contract between the parties was from 1.1.2001 to 31.12.2001 vide Exhibit MW-1/3. During this contract the consolidated salary of the petitioner was enhanced to Rs.2500/- per month. Thereafter, another contract was entered into between the parties vide which another contractual appointment was given to the petitioner by the respondent- Management for a period of six months i.e. from 1.1.2002 to 30.6.2002 vide Exhibit MW-1/4. Exhibits MW-1/2 and MW-1/3 have been signed by the petitioner himself which shows that the petitioner was aware of the fact that he was being appointed on purely contractual basis. Although Exhibit MW-1/4 does not contain the signatures of the petitioner but still as he continued on the same terms as per contract Exhibit MW-1/3, he was aware of his nature of appointment and, therefore, it cannot be said that he was working in any other capacity except on contract basis. As regards the submission of the counsel for the petitioner that the records were not produced by the Management as was summoned by the petitioner, counsel for the respondents contends that it is not in dispute that the petitioner had worked with the Management from 9.7.1999 till 30.6.2002. It is also not in dispute that the wages for the said period were disbursed to the petitioner and, therefore, the attendance register and the wage details as summoned by the petitioner through his application (Annexure P-4) would not be of any relevance as far as his claim is concerned. Since the evidence overwhelmingly brought on record by the respondent-Management proves that the appointment of the petitioner was C.W.P.No.16652 of 2009 -4- on contractual basis, the finding recorded by the Labour Court does not call for any interference. I have heard counsel for the parties and gone through the records of the case. It is true that the initial appointment of the petitioner was on daily wage basis i.e. from 9.7.1999 to 31.12.1999 but thereafter two documents Exhibit MW-1/2 showing the appointment of the petitioner on contract basis from 1.1.2000 to 31.12.2000 on a consolidated salary of Rs.2200/- which were duly signed by him as also the subsequent contractual engagement of the workman as a Gardener with effect from 1.1.2001 to 31.12.2001 on a consolidated wages of Rs.2500/- per month which again bear the signatures of the petitioner, leave no manner of doubt that the appointment of the petitioner after the initial appointment as a daily wager, was on contractual basis and that too for a specified period and, thus, the petitioner was well aware of his status as a contractual employee. Although the third contractual consignment given to the petitioner from 1.1.2002 to 30.6.2002 Exhibit MW-1/4 does not contain his signatures but still taking in view the nature of appointment of the petitioner as he was working on purely contractual basis, the non-extension of the contract when the same was for a specified period and the termination of his services was due to that, would not fall within the definition of retrenchment as provided under Section 2(oo) of the Act and would be rather covered by the exception thereto by clause (bb). Accordingly, the findings recorded by the Labour Court on this aspect cannot be faulted with. As regards the contention of counsel for the petitioner that the documents Exhibit MW-1/3 and Exhibit MW-1/4 are post-dated, suffice it C.W.P.No.16652 of 2009 -5- to say that all contracts which were issued to the petitioner which were either signed or unsigned or were issued at a subsequent date after the commencement of the contract and, therefore, it cannot be said that the said documents were manufactured at a later stage with an intention to deprive the petitioner of his rights under the Act. Further, no prejudice has been caused to the petitioner for non-production of the records summoned by him before the Labour Court as the respondents have produced the relevant documentary evidence to show the nature of his appointment which was contractual with effect from 1.1.2000. In view of the above, I do not find any merit in the present writ petition and the same stands dismissed. May 14, 2010 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE