C.W.P.No.12767 of 1998 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.12767 of 1998 Date of Decision:- 25.01.2010 Naresh Kumar ....Petitioner(s) vs. The Presiding Officer and another ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.D.S.Nalwa, Advocate, for the petitioner. Mr.Ravi Sodhi, Advocate, for respondent No.2. *** AUGUSTINE GEORGE MASIH, J. (Oral) Prayer in the present petition is for quashing of the award dated 12.3.1998 (Annexure P-12) passed by the Presiding Officer, Industrial Tribunal-cum-Labour Court, U.T., Chandigarh. Counsel for the petitioner contends that the findings as recorded by the Labour Court that the services of the petitioner-workman were not terminated and he was only reverted to his parent Department and, therefore, his case would fall within the purview of exception (bb) to Section 2(oo) of the Industrial Disputes Act as the terms and conditions of his employment were governed by the contract of employment as contained in Exhibits W-1 and W-2, cannot be sustained. He contends that either Exhibit W-1 or Exhibit W-2, (which have been placed on record as Annexures P-1 and P-2) would be applicable but both cannot be made C.W.P.No.12767 of 1998 -2- applicable to the case of the petitioner simultaneously. He further contends that these observations of the Labour Court are not sustainable as the appointment letter dated 24.9.1991 (Annexure P-1) stipulated that the appointment of the petitioner was purely on ad hoc basis for six months in the first instance which was likely to be followed by a regular appointment in accordance with the relevant Rules if his work and conduct was found satisfactory and it was only in a contingency where his work and conduct was not found satisfactory that he was liable to be reverted to his parent department without any notice. After having regularized the services of the petitioner on the post of Dark Room Attendant with effect from 27.9.1991 vide order dated 11.5.1992 (Annexure P-2) which provided for fresh terms of contract, the initial contract of appointment dated 24.9.1991 (Annexure P-1) would cease to exist and his conditions of service would be governed by the order dated 11.5.1992 (Annexure P-2). He contends that the terms and conditions as stipulated in the order Annexure P-2 do not envisage or talk of reversion to the parent department. The option for leaving service and for termination of the services of the petitioner was stipulated in this order and even if the stand of the respondent-management is accepted to be correct, then also the work and conduct of the petitioner was not satisfactory, the only recourse which the respondent-management could have resorted to, was to terminate the services of the petitioner, which as a matter of fact, the respondent-management has done by passing an order dated 22.9.1993 (Annexure P-3) thereby reverting him to the parent department with effect from 22.9.1993. An effort has been made on behalf of the respondent-management to circumvent the terms of the contract by using a terminology of reverting the petitioner to his parent C.W.P.No.12767 of 1998 -3- department whereas the result and effect thereof is termination of his services. He further contends that since the respondent-management has not complied with the provisions as contained under the Act nor it is the stand of the respondent-management that the services of the petitioner have been terminated, the award passed by the Labour Court relying upon Exhibits W-1 and W-2 jointly for holding that the termination of the services of the petitioner falls within the exception of Section 2(oo) (bb) of the Act, cannot be sustained. Counsel for the petitioner further contends that even if Annexure P-3 is taken to be an order of reversion to the parent department still it is not mentioned therein that due to unsatisfactory work and conduct of the petitioner, the step of reversion to his parent department is being taken. He, on this basis, contends that it being not the stand of the respondent-management that petitioner's work and conduct was not good or satisfactory, they could not now be allowed to take such a stand before the Labour Court. On the other hand, counsel for the respondent submits that the findings recorded by the Labour Court are fully justified as sufficient evidence has been produced on record by the respondent-management showing the work and conduct of the petitioner as unsatisfactory. The documents have been placed on record as Exhibits M-1 to M-5, M-9, M-10, M-13 and M-14. He further contends that since there is no retrenchment of the services of the petitioner-workman, therefore, there is no termination. The petitioner has been reverted back to his parent department as per the terms of condition stipulated in letter dated 24.9.1991 (Annexure P-1) which is the appointment letter. With the passing of the order dated 11.5.1992 (Annexure P-2), i.e. the order of regularization, the order C.W.P.No.12767 of 1998 -4- Annexure P-1 would still continue to operate. He, thus, contends that when Annexures P-1 and P-2 are read together, the respondent had the authority to revert the petitioner in case his work and conduct was not satisfactory. While supporting the findings as recorded by the Labour Court, counsel has further placed reliance upon a Division Bench judgment of this Court in the case of Kartar Singh vs. State of Haryana and others 1994 (4) SCT 652. On this basis, the impugned award passed by the Labour Court is being sought to be supported by the counsel for the respondents. I have heard counsel for the parties and have gone through the records of the case. Letter dated 24.9.1991 (Annexure P-1) is the letter of appointment of the petitioner to the post of Dark Room Attendant with the respondent-Chandigarh College of Architecture. The relevant terms of appointment read as follows:- “The appointment of Shri Naresh Kumar will be purely on ad hoc basis for six months, in the first instance. This may be followed by regular appointment in accordance with the relevant rules, if his work and conduct are found satisfactory. In the event of his failure to come up to the expectations of the Appointing Authority either in work or conduct or both, he will be liable to be reverted to his parent department at any time without notice.” This letter of appointment was followed by the order dated 11.5.1992 (Annexure P-2) regularizing the services of the petitioner. The terms of service of the petitioner as stipulated in the order dated 11.5.1992 read as follows:- “The Principal, Chandigarh College of Architecture, is C.W.P.No.12767 of 1998 -5- pleased to regularise the services of Shri Naresh Kumar on the post of Dark Room Attendant w.e.f.27-9-1991, in the pay scale of Rs.950-25-1200-30-1560-40-1800 plus usual allowances as sanctioned by the Government from time to time subject to the following terms and conditions:- 1. The post is temporary, for the present upto 28-2- 1993 but likely to continue thereafter; 2. You will be on probation for a period of two years; 3. The services are terminable on one month's notice on either side, unless the post is brought under reduction for which no notice will be required; 4. In case you desire to leave service without notice you will have to deposit one month's pay and allowances in lieu of notice or for such period by which notice falls short of; 5. In case of mis-conduct, in efficiency or any other serious contravention of Government servants conduct Rules, your services are liable to be terminated without notice; 6. You will have to produce medical certificate of fitness from the competent medical authority before joining your duty in accordance with the rules on the subject if not already done; 7. Your appointment is subject to verification of good character and antecedents by the Police authorities in due C.W.P.No.12767 of 1998 -6- course; 8. On joining the department, you will have to take oath of allegiance to the Indian Republic; 9. No T.A. is admissible to join the post; 10. You will have to produce a character certificate from a Gazetted Officer; 11. In case you are married, you have only one living wife; 12. You will have to furnish attested copies of certificate of qualifications, experience etc. Sd/- Principal Chandigarh College of Architecture.” A perusal of the above two documents, relevant portion whereof has been reproduced above, would show that initial appointment of the petitioner was purely on ad hoc basis for a period of six months at the first instance and regular appointment was to follow in accordance with the relevant Rules if his work and conduct was found satisfactory. In case he did not fulfil the stipulation as mentioned above, the appointing Authority had the powers to revert the petitioner to the parent department at any time without any notice. The services of the petitioner were regularized vide order dated 11.5.1992 (Annexure P-2) which obviously means that the work and conduct of the petitioner was found satisfactory by the competent Authority. The effect thereof was that the stipulation and the authority with which the appointing Authority decided to revert the petitioner back to the parent department stood extinguished. As a consequence of passing of the C.W.P.No.12767 of 1998 -7- order dated 11.5.1992, fresh conditions of service were imposed with the coming into force of the new contract between the parties and both the parties were bound by the same. Even if the stand of respondent- management is taken into consideration that the work and conduct of the petitioner was not satisfactory, the only consequence thereof would be termination of the services of the petitioner as per the stipulation contained in the contract of service. Strangely enough, the respondent-management resorted to an exercise of power of reversion to the parent department which authority it had ceased to contain in the light of the order dated 11.5.1992. Order dated 22.9.1993 Annexure P-3, therefore, passed by the respondent- management is without any authority and jurisdiction and, thus, cannot be sustained. Even if it is assumed that the order dated 22.9.1993 amounts to termination of the services of the petitioner-workman even then no reasons whatsoever have been assigned for such termination. It is not the case of the respondent-management that the appointment of the petitioner was de hors the rules or he did not fulfil the required qualification for the post. As a matter of fact, after regularization of the services of the petitioner, the services of the petitioner if were to be terminated, the same could be done in accordance with the order dated 11.5.1992 which the respondent- management has failed to comply with. It is an admitted position that the provisions as contained under the Act have not been complied with as no retrenchment compensation has been paid to the petitioner-workman and admittedly the petitioner-workman had completed more than 240 days in service in the twelve preceding months from the date of his termination. Since the termination of the services of the petitioner-workman were not in accordance with the provisions as contained under the Act, the findings as C.W.P.No.12767 of 1998 -8- recorded by the Labour Court cannot be sustained and, therefore, the award deserves to be set aside. Ordered accordingly. The question which now requires consideration by this Court is as to whether the petitioner on his reinstatement in service would be entitled to back-wages. Keeping in view the totality of the facts and circumstances of the case, and also keeping in view the fact that the petitioner himself has not even stated that he was not been gainfully employed after his termination, it would be just and appropriate that no back wages are granted to the petitioner. The present writ petition is allowed. Award dated 12.3.1998 (Annexure P-12) passed by the Presiding Officer-cum-Labour Court, U.T., Chandigarh is hereby set aside. The petitioner is directed to be reinstated in service with all consequential benefits except the back-wages. January 25, 2010 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE