Civil Writ Petition No.4185 of 1999. -1- In the High Court of Punjab and Haryana at Chandigarh. Civil Writ Petition No.4185 of 1999. Date of decision:28-1-2008 National Dairy Research Institute, Karnal. ...Petitioner. Versus Gopal Chander and another. ...Respondent. ... Coram: Hon'ble Mr. Justice K. C. Puri. ... Present; Mr. R.K. Sharma Advocate for the petitioner. Mr. H. S. Saini Advocate for respondent No.1. ... K. C. Puri, J. Judgment. The petitioner questions the legality of award dated 24.2.1994 passed by respondent No.2, Annexure P3/A, whereby the termination of services of respondent No.1 was set aside and order dated 5.8.1998, Annexure P-8, whereby directions have been issued to the petitioner to compute back wages of respondent No.1 with a further direction to make payment within one month from the date of passing of said order,in this Civil Writ Petition filed under Articles 226/227 of Civil Writ Petition No.4185 of 1999. -2- the Constitution of India and seeks quashing of the same. The background facts sans unnecessarily details are as follows:- Respondent No.1 Gopal Chander was called for interview for the post of Security Officer on 27/28-3-1989 but was not selected and then on his own request, he was appointed against leave vacancy of Security Supervisor in the scale of Rs.1400-2300 from 19.4.1989 to 2.5.1989 on purely contractual basis and later on he continued in service with notional breaks for 259 days. It is further alleged that on a demand notice issued by respondent No.1, the Central Government vide notification dated 3.6.1991 referred the industrial dispute to the Central Government Industrial Tribunal, Chandigarh which decided the matter against the petitioner. The petitioner challenged the award before the Central Administrative Tribunal Chandigarh through Original Application No.989-HR-1994. The learned Tribunal after hearing quashed the award passed by the respondent No.2. During the pendency of the Original Application, respondent No.1 filed an application under Section 33-C(2) of the Industrial Disputes Act, 1947 (in short the Act). The respondent No.2 while ignoring the judgment of the Central Administrative Tribunal passed order under Section 33-C(2) of the Act against the petitioner on 5.8.1998 and directed the petitioner to compute the back wages of respondent No.1. Civil Writ Petition No.4185 of 1999. -3- It has also been pleaded that the petitioner being Research Institute and deemed University would not be covered under the definition of Industry and the post of Security Supervisor on which the petitioner was appointed does not fall within the definition of workman as contained in Section 2(s) of he Act. The case of respondent No.1 squarely falls within the exception clause of Section 2(oo)(bb) of the Act. The respondent No.1 was offered employment only against leave vacancy period. Respondent No.1 contested the claim of the petitioner and it has been denied in the written statement that he was appointed as Security Supervisor on purely contractual basis. He has completed 259 days of service and falls under the definition of workman. He is also entitled to retrenchment compensation and one month's prior notice before termination of his services. When his services were terminated, vacancy was available which is still available. Since he has completed more than 240 days, so the provisions of Section 25F were attracted in his case. The termination of his services is illegal and the petitioner- Institution clearly falls under the provisions of Industry. The Tribunal without any jurisdiction set aside the award of the Labour Court. He had legal right to file application under Section 33-C of the Act. I have heard arguments of counsel for the parties and have gone through the record of the case. The workman has completed 240 days and on the Civil Writ Petition No.4185 of 1999. -4- assumption that Section 25F of the Act has not been complied with, the impugned award dated 24.2.1994 was passed. The workman was admittedly working against a leave vacancy. The reasoning given in the award dated 24.2.1994 is that since no regular person was appointed, as such the services of workman could not be terminated without compliance of Section 25F of the Act. The Apex Court in authority reported as Himanshu Kumar Viyarthi & Ors. Versus State of Bihar and others, JT 1997(4) SC 560 has held termination of services of temporary employees who were only daily wagers have no right to the posts and their disengagement is not arbitrary. The Division Bench in authority reported as Brij Bhushan Versus Industrial-cum- Labour Court, Panipat, 1998(3) SCT 17, has been held that it is not necessary for the Courts to refuse relief of reinstatement to an employee who may have got entry in the public service by unlawful or unfair means.The back door entrant in the service cannot derive the benefit of Sections 25F and 25G of the Act. Similar view was taken by a Division Bench in the following authorities;- 1.The Head Master, Government High School, Behrana Versus Ajit Singh and another, 2003(4) SCT 230. 2.Archana Sharma Versus Presiding Officer, Labour Court, Chandigarh and others, 2007(5) SLR 730. In Divisional Forest Officer (Social), Hisar Versus Krishan Kumar and another, Civil Writ Petition No.267 of 2007 Civil Writ Petition No.4185 of 1999. -5- decided on 31.8.2007, it has been held in view of authorities reported in Municipal Council, Samrala v. Raj Kumar,(2006)3 SCC 8, State of UP v. Neeraj Awasthi, (2006) 1 SCC 667, Reserve Bank of India v. Gopinath Sharma and another, (2006) 6 SCC 221 and Gangadhar Pillai v. Siemens Ltd., (2007) 1 SCC 533, that Section 25F is not attracted if the case falls under Clause (bb) to Section 2(oo) of the Act. The workman was working against the leave vacancy. He was interviewed for the post of Security Officer but was not selected. The workman was given post of Security Supervisor against leave vacancy for the period mentioned above. He has completed service of 240 days in the given calendar year, but Section 25F is not attracted as his term of appointment was for a fixed period and in view of Clause (bb) of Section 2(oo), the services of the petitioner could be terminated. In view of he above discussion, award dated 24.2.1994 vide which the workman has been ordered to be reinstated with full back wages and order dated 5.8.1988 vide which the petitioner has been directed to implement the award stand quashed. This Civil Writ Petition is disposed of in the manner indicated above. January 28,2008. ( K. C. Puri ) Jaggi Judge