IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 11568 of 2006 Date of decision: 22nd May, 2008 Executive Engineer, Provincial Division, PWD (B&R), Narnaul. … Petitioner Versus Ram Dhari Singh and another … Respondents CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Sunil Nehra, Assistant Advocate General, Haryana for the petitioner. Mr. R.N.Lohan, Advocate for respondent No.1. KANWALJIT SINGH AHLUWALIA, J. In the present writ petition preferred by Executive Engineer, Provincial Division, PWD (B&R), Narnaul, quashing of impugned award dated 15th February, 2006 (Annexure P-1) has been sought, whereby respondent-workman has been reinstated on his previous post with continuity of service and 50 per cent back wages from the date of demand notice, i.e. 4th September, 2001. In the writ petition two arguments have been raised before us. Firstly, that the respondent-workman was holding the post of Patwari therefore, cannot be termed as workman and secondly, the appointment of workman vide appointment letter (Annexure P-11 and P-12) was for a Civil Writ Petition No. 11568 of 2006 period of 89 days and he was a contractual employee. Therefore also, learned Labour Court erred in holding him to be entitled to reinstatement. A perusal of various documents would show that Ram Dhari Singh (workman-respondent No.1) had preferred a civil writ petition No. 841 of 2001 and same was disposed off by this Court on January 18, 2001 and the following order was passed: “C.W.P. No. 841 of 2001 Present : Mr. Ajay Kaushik, Advocate for Mr. Arun Jain, Advocate for the petitioner. *** Heard learned counsel for the petitioner. The petitioner has already sent a representation to the respondents for the relief as sought in this petition. However, no action has been taken on the same. It is appropriate for the respondents to take a conscious decision on the claim of the petitioner before he can be allowed to approach this Court by way of writ petition. The writ petition is disposed of finally with a direction to the concerned authority to consider and decide the representation, Annexure P-7 of the petitioner, in accordance with law, by a speaking order, within six months of the receipt of a certified copy of this order. Sd/- A.S. Gill Judge Sd/- V.S. Aggarwal Judge” In pursuance to the orders passed by this Court in CWP No. 841 of 2001, the Superintending Engineer, Bhiwani Circle vide Annexure P- 4, set aside the representation and observed as under: 2 Civil Writ Petition No. 11568 of 2006 “You were engaged as a work charged Patwari (on temporary basis) for 89 days from 3.5.1994 to 30.7.1994 vide this office No. 4402 dated 29.4.1994 for specific work for preparation of land acquisition papers under Section 4 & 6 of various roads of Provl. Divn. Narnaul. You worked upto 30.7.1994 against that sanction. Similarly you were engaged during the period 7.1.1995 to 31.10.2000. Thereafter not continuously but with several breaks. The sanction was accorded for a specific period as and when required by the Executive Engineer, Narnaul for specific work. After that there was no work left for preparation of L.A. papers where Patwari could be engaged and there is no regular sanctioned post of Patwari against which you could be engaged, As per direction of Hon'ble Punjab and Haryana High Court at Chandigarh dated 18.1.2001. Your representation is hereby disposed off and it is mentioned here that your claims for the post of Patwari is not tenable as you were engaged only for a specific period for a specific purpose purely on temporary basis.” After the decision of the representation vide Annexure P-4, the workman served a demand notice (Annexure P-5) and stated therein that he was appointed as Patwari on 25.01.1994 on daily wages against a vacant and permanent post for three months, thereafter, he has been made work-charge employee and had continuously worked upto 31.10.2000. The demand notice served by the workman was rejected by the Government of Haryana holding that his services were temporary under Section 2(oo) (bb) of the Industrial Disputes Act and therefore his demand notice cannot be sent for adjudication. Aggrieved against the same, workman had preferred appeal (Annexure P-7) and thereafter, the matter was referred to learned Labour Court. Learned Labour Court had not examined the question 3 Civil Writ Petition No. 11568 of 2006 whether Patwari is a workman or not. Even though, in written statement to the claim statement (Annexure P-9), it was averred as under: “The applicant was engaged as Patwari and was drawing pay of Rs.4179/- per month. The employee being in supervisory capacity and drawing wages exceeding one thousand six hundred rupees per mensem and was performing the nature of duty attached to the office do not come in the definition of workman as defined in Industrial Disputes Act-1947 Clause 2(S) iv.” Mr. Sunil Nehra, Assistant Advocate General, Haryana has brought to our notice Chapter VI of Punjab Land Records Manual, which defines various duties of the Patwari. The duties include making of survey, field investigation, records of crops, revision of maps/ reports relating to mutations, partitions, revenue or rent, takavi or other circumstances of his circle that he may be ordered to make by the Revenue Officers. He has also brought to our notice that a Patwari has also to submit reports to the Government regarding various epidemics/ calamities. He has also brought to our notice para 3.18, which deals with the police duties of the Patwari, which prescribe legal obligations as owners and occupiers of land, in the matter of reporting crime, and the reporting of speeches made at meetings held within the limits of their circles. He has also brought to our notice para 3.20 regarding functions of Patwari in revenue collections. Relying upon various functions and duties, which are enumerated in the Punjab Land Records Manual, Mr.Nehra has contended that Patwari is a responsible officer of the Government and he cannot be termed as workman. We have perused the duties of Patwari, which have been mentioned in the Punjab Land Records Manual. The very nature of the service of Patwari exclude him from the definition of a workman. We are of 4 Civil Writ Petition No. 11568 of 2006 the view that from the definition of the workman, as contained in Section 2- S of the Industrial Disputes Act and functions of Patwari are more in nature of administrative and supervisory capacity. Therefore, he cannot be held to be a workman. Learned counsel for the petitioner-State has further relied on judgment of this Court in Suresh Kumar Sharma v. Presiding Officer, Labour Court, U.T. Chandigarh and another 2006(4) Service Cases Today 672, wherein it was held that retrenchment has been defined in Section 2(oo) of the Act but the same does not include exception under Section 2(oo)(bb). Termination of the service of workman as a result of non-renewal of the contract or employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation shall not amount to retrenchment and Section 25-F compliance is not required. In the above said judgment, it has been held as under:- “...Therefore, the question of workman taking the plea that the matter falls within the purview of Section 25-F of the Act does not arise. It is not a case where the workman was continuously appointed with artificial gap of one day or so to say that the management was prone to unfair labour practice. A conjoint reading of the said offer and the extensions thereof (Anneuxres P-1 to P-3) clearly shows that they were contractual and were for a fixed term. In this backdrop the case of the petitioner-workman falls within the said exception of Clause (bb). It is thus imperative to conclude that the termination of the workman did not amount to retrenchment as the same was in consequence with the terms and conditions of his appointment/extensions. Thus, the services of petitioner have come to an end with efflux of time. Once the conclusion logically so arrived is that the termination of the workman from 5 Civil Writ Petition No. 11568 of 2006 the employment did not constitute retrenchment within the meaning of Section 2(oo) of the Act, in our view there is no question of application of Section 25-F of the Act. Our this view finds support from a decision rendered by Hon'ble the Apex Court in the case of Haryana State Agricultural Marketing Board v. Subhash Chand and another, 2006(2) SCT 23 (SC): 2006 (2) Law Herald (SC) 1053. The Labour Court has rightly considered this aspect of the matter that the services of petitioner-workman were discontinued after the expiry of fixed term and it is not open to him to raise dispute under the Act by taking the plea of applicability of Section 25-F of the Act”. We find merit in both the contentions of the petitioner- management that Patwari being a contractual employee, respondent- workman cannot be termed as a workman. Hence, the present writ petition is accepted and award dated 15th February, 2006 (Annexure P-1) is quashed as in the present case Clause (bb) of Section 2(oo) of the Act is attracted and respondent No.1- workman is not entitled to the relief granted vide impugned award. [KANWALJIT SINGH AHLUWALIA] JUDGE [ASHUTOSH MOHUNTA] JUDGE May 22, 2008 rps 6