C.W.P. No.3087 of 1989 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.3087 of 1989 Date of Decision: 03.12.2009 The Haryana State Cooperative Land Development Bank Ltd., Chandigarh through its Managing Director .....Petitioner Versus The Presiding Officer, Labour Court, Faridabad and others ....Respondents Present: Mr. S.S. Dalal, Advocate for the petitioner. None for the respondents. CORAM:HON'BLE MR. JUSTICE K. KANNAN 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.(ORAL) 1. The order in challenge is a direction for reinstatement of the workman with continuity of service and back wages. The contention of the workman was that he had been terminated from service without complying with the provisions of Section 25-F of the Industrial Disputes Act, although he had completed 240 days of service. The management resisted the claim of the workman on the ground that even at the time when appointment order was issued, it stipulated that the workman shall obtain proficiency in typing 40 words per minute within a period of six months and if C.W.P. No.3087 of 1989 -2- he did not qualify for such a proficiency, his services were liable for termination without any further notice. The contention of the management was that the workman had been granted at least four opportunities to qualify himself in the manner contemplated in the appointment letter and since he did not obtain such a qualification, his services were terminated. 2. The Labour Court reasoned that the condition in the appointment order was introduced for the first time, which condition had not been indicated in the notification calling for applicants for the post. According to the Labour Court, this condition in the appointment order had been forced on the workman and the management could not have imposed such a condition. The Labour Court, therefore, found that the termination effected without compliance of the statutory requirement under Section 25-F of the Industrial Disputes Act was illegal. 3. The only contention raised by the counsel for the management is that when there was a specific stipulation as to the qualification of the workman for continuance of duty and if that qualification the workman did not have, the termination shall be understood as being occasioned under a situation contemplated under Section 2(oo)(bb) of the Industrial Disputes Act. The sub clause (bb) contemplates "termination of service of the workman as a result of non-renewal of the contract between the employer C.W.P. No.3087 of 1989 -3- and the employee concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained thereunder." The stipulation contained in the appointment order contained, inter alia, following: “(a) You will have to pass type test at the speed of 40 W.P.M. Within six months from the date of joining, failing which your services will be terminated without giving any notice.” 4. Admittedly, the stipulation provided for a termination of service and although it contemplated termination of service without notice, the management had in this case admittedly issued notices to the workman urging him to acquire the proficiency and only when it was not so done, the termination ensued. 5. The reasoning of the Labour Court that the advertisement calling for the post did not contain such a stipulation is meaningless, for the contract of employment takes place not at the time when an advertisement is issued. An advertisement is merely an invitation to offer employment. It is the appointment order, which when accepted constitutes the contract. A condition in such appointment order is binding and the workman shall not be entitled to fall back of what stipulations the advertisement did not contain. The order of termination cannot be impeached by the workman in the manner he did and the challenge to the termination order ought to have been rejected. C.W.P. No.3087 of 1989 -4- 6. The award of the Labour Court is, under the circumstances, set aside and the order of termination passed already by the management is sustained. 7. The writ petition is allowed in the above terms. No costs. (K .KANNAN) JUDGE December 03, 2009 Pankaj*