IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.9141 of 2001 Date of decision: 19.11.2009 Municipal Council, Dina Nagar ....Petitioner versus Presiding Officer, Labour Court, Gurdaspur and another. ...Respondents II. Civil Writ Petition No.9145 of 2001 Municipal Council, Dina Nagar ....Petitioner versus Presiding Officer, Labour Court, Gurdaspur and another. ...Respondents III. Civil Writ Petition No.9146 of 2001 Municipal Council, Dina Nagar ....Petitioner versus Presiding Officer, Labour Court, Gurdaspur and another. ...Respondents IV. Civil Writ Petition No.9162 of 2001 Municipal Council, Dina Nagar ....Petitioner versus Presiding Officer, Labour Court, Gurdaspur and another. ...Respondents V. Civil Writ Petition No.9181 of 2001 Municipal Council, Dina Nagar ....Petitioner versus Presiding Officer, Labour Court, Gurdaspur and another. ...Respondents Civil Writ Petition No.9141 of 2001 - 2 - VI. Civil Writ Petition No.9182 of 2001 Municipal Council, Dina Nagar ....Petitioner versus Presiding Officer, Labour Court, Gurdaspur and another. ...Respondents VII. Civil Writ Petition No.9385 of 2001 Municipal Council, Dina Nagar ....Petitioner versus Presiding Officer, Labour Court, Gurdaspur and another. ...Respondents VIII. Civil Writ Petition No.10263 of 2003 Deepak Kumar and others ....Petitioners versus Presiding Officer, Labour Court, Gurdaspur and others. ...Respondents IX. Civil Writ Petition No.10502 of 2003 Hardeep Sharma ....Petitioner versus Presiding Officer, Labour Court, Gurdaspur and others. ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. H.S.Bakshi, Advocate, for the petitioner. Mr. K.L.Arora, Advocate, with Ms.Priya Narayan, Advocate (in C.W.P. No.10263 and 10502 of 2003) for respondent No.2. Mr. Mandeep Bedi, Senior Advocate, with Mr. Gagneshwal Walia, Advocate, for the respondent (in CWP Nos.9141, 9145, 9146, 9162, 9181, 9182 and 9385 of 2001). ---- Civil Writ Petition No.9141 of 2001 - 3 - 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. 1. The above batch of cases address the same issue relating to whether the workmen, who had been working in the office of the Municipal Council, Dina Nagar, had been merely on contracts for specific periods so that when the terminations were effected well past alleged respective the contract periods, the workmen were entitled to treat such termination as constituting illegal retrenchment from service in violation of Section 25-F of the Industrial Disputes Act and claim reinstatements. The batch of cases again makes a curious mix in that emanating from the same set of facts some persons were directed to be reinstated with back wages while in respect of two workmen, the respective orders of termination of service had been upheld. 2. The learned counsel appearing for the Municipal Council took me through various communications that had come about between the Executive Officer of the Municipal Council and the Government represented through the Regional Deputy Director which, according to him, showed that the Government was merely approving the appointment of octroi Clerks on contract basis and that the sanction had been granted by the Government only for 4 posts purely on contract basis but the Executive Officer had exceeded his jurisdiction by appointing several persons without going through any form of selection process. The learned counsel stated that the relevant rules in Punjab Municipal Service Civil Writ Petition No.9141 of 2001 - 4 - Recruitment and Conditions of Service Rules, 1975 provided that the recruitment was to be made only through a Selection Committee, but all the appointments had been made by a mere resolution of the Municipal Council. The appointments, according to the learned counsel, was also illegal and by resolution No.50, dated 26.03.1997, the matter was placed before the Municipal Council. The resolution itself states those employed on contract basis would have to be only through Employment Exchange and after the expiry of the contract period, it would become essential to enter into agreement with the employees so that the matter was to be presented before the Municipal Council for his consideration and decision. By virtue of the resolution ultimately it was unanimously decided that the Clerks and Peons employed on contract basis should be relieved after 31.03.1997. 3. The learned counsel appearing for the Municipal Council further argued that the award failed to properly appreciate the nature of engagement in that the file which had been produced containing 40 pages and exhibited as M-2 had not been properly examined for they contained reference to the fact that the workmen had been engaged only on contract basis. According to him, the observation of the Labour Court that there had been no proof adduced by the management that they all had been employed only on contractual basis for a specified period, was clearly wrong, in that it did not properly acquainted itself about the documents filed before the Court. 4. The learned counsel appearing for the workmen Shri H.S.Bakshi in the batch of writ petitions that directed reinstatement and Civil Writ Petition No.9141 of 2001 - 5 - Shri Arora in two cases that found the workmen were not entitled to the relief, contended that the Labour Court had itself discussed the nature of documents that had been filed in M-2 and that none of the documents which had been referred to and filed before this Court in the writ petition had been submitted before the Labour Court. Mr. Bakshi took me through the award that referred to Ex.M-2 as containing circulars dated 19.03.1997 and 21.03.1997; the resolution No.50, dated 26.03.1997 and the retrenchment notices to all the workmen along with the demand draft receipts through registered envelopes; copies of the budget for the year 1997-98 etc. and contended that the so-called contractual employment, was not correct. The learned counsel Mr. Bakshi contended that all the workmen had admittedly put in more than 240 days of service and the termination purported to have been effected on 31.03.1997 without simultaneously paying the compensation stipulated under Section 25-F did not amount to compliance of the statutory mandate. Admittedly the dispatch of the compensation for the notice period and for the number of years of service that the respective workmen had put in, had been dispatched by the management only subsequently on 02.04.1997 and the payment that did not accompany the order of termination was not valid in law. 5. Shri K.L.Arora appearing for some workmen also stated that the Punjab Municipal Services (Recruitment and Conditions of Services) Rules, 1975 itself did not apply. Section 39 of the Punjab Municipal Act, 1911 reads as follows:- “(1) Subject to the provisions of this Act and the rules and bye-laws made thereunder, a committee may, and if so Civil Writ Petition No.9141 of 2001 - 6 - required by the State Government shall, employ other officers and servants, and may assign to such officers and servants such remuneration as it may think fit, and may suspend, remove, dismiss, or otherwise punish any officer or servant so appointed. Provided that no person who is a member of a committee shall be employed by a committee during the tenure of his term and for a period of twelve months thereafter. (2) Nothing in this section shall prevent the State Government from making any provision in the rules under this Act for the reservation of appointments or posts and to lay down methods to secure such reservation in favour of members of the Scheduled Castes, the Scheduled Tribes and such other backward classes of citizens which in the opinion of the State Government are not adequately represented in the services under the Municipal Committee. ” The Recruitment Rules, 1975 sets out the entire cadre to whom they applied in Appendix A to D but Clerks will not included as falling within the category of persons who were so governed. According to him, the appointment to the post of Clerks and Peons could be made by the respective Municipal Council on due resolutions and setting their own norms for recruitment and for which no permission from the Government was necessary. If the recruitment rules cited by the learned counsel appearing for the Municipal Council did not apply, the so-called permissions or sanction by the Executive Officer were of no relevance. Admittedly all the workmen had been employed by due resolutions of the Municipal Council and if the termination of services were to be made, they could not be done without reference to the statutory provisions of Section 25-F of the Industrial Disputes Act. 6. Going through the provisions, the learned counsel appearing for the Municipal Council fairly conceded that the Punjab Municipal Services Recruitment Rules, 1975 themselves would not apply, but still Civil Writ Petition No.9141 of 2001 - 7 - he would contend that there were no order of initial appointments and appointments to a public body like Municipal Council could not have been made without following any transparent procedure for appointing them. Further according to him, the communications relating to the nature of engagement as contractual employment were omitted to be filed and he sought for permission for giving him an opportunity to let in appropriate evidence before the Labour Court by remanding the matter. In my view, the plea for a remand on the ground that the Municipal Council shall be given opportunity to adduce fresh evidence will be grossly prejudicial to the interest of the workmen. The orders of termination had been effected in the year 1997 and for 12 long years, the workmen had been fighting for their rights. A public body cannot be heard to say that they did not know what relevant documents were required to be filed for establishing their defence. If it is seen that there was no proof that the workmen had been engaged only for a specific period, the termination by a resolution to take effect on 31.03.1997 without offering to them compensation simultaneously would not meet the requirements of law. The offer to send the amounts two days later is not in conformity with law. Section 25-F has a salutary objective that the workmen shall have adequate resources in his hand for searching for a new job and to prevent indigency. The provision has to be strictly construed and if there was no compliance, there is no reason why the workmen should be denied their entitlement into the entry into service. 7. The awards of the Labour Court in so far as they direct reinstatement, continuity of service and back wages are confirmed and Civil Writ Petition No.9141 of 2001 - 8 - the award for two workmen for whom the termination was upheld is set aside. Consequently, Civil Writ Petitions 9141, 9145, 9146, 9162, 9181, 9182 and 9385 of 2001 are dismissed and Civil Writ Petitions 10263 and 10502 of 2003 are allowed granting to the workmen reinstatement, continuity of service and back wages. No costs. (K.KANNAN) 19.11.2009 JUDGE sanjeev