IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.11326 of 1999 Date of decision: 28.07.2009 Deepak Luthra ....Petitioner versus The Presiding Officer, Labour Court, Bhatinda ...Respondents and another CORAM: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. D.S.Nalwa, Advocate, for the petitioner. Ms. Monica Chhibbar Sharma, Deputy Advocate General, Punjab. ---- 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 award that disallowed the claim of the workman for any relief when he complained of unlawful termination, is the subject of challenge in the writ petition. 2. The workman had made out a case of his engagement to three different spells within specified periods that counted in all for 229 days, but the workman complained that the different spells were deliberately broken by the employer to defeat his rights to claim the benefits of continuous service and therefore, amounted to unfair labour practice. It was pointed out that he had been engaged from 14.12.1995 to 13.03.1996, from 15.03.1996 to 11.06.1996 and from 14.06.1996 to Civil Writ Petition No.11326 of 1999 - 2 - 03.08.1996. The counsel appearing for the petitioner relied on a decision of Bhikku Ram Versus P.O., Ind. Tribunal-cum-Labour Court, Rohtak-1998(1) RSJ 703, that held as under: “Therefore, while interpreting and applying various parts of Section 2(oo), the competent Court/Tribunal shall have to keep in mind the provisions of Section 2(ra) read with Section 25T and U and various paragraphs of the Fifth Schedule and if it is found that the action of the employer to engage a workman on casual basis or as a daily wages or even on temporary basis for long periods of time with intermittent breaks and subsequent termination of service of such workman on the pretext of non-renewal of contract of employment or termination of contract of employment on the basis of a stipulation contained therein is an act of unfair labour practice, such an action of the employer will have to be nullified and the Court will be fully justified in rejecting the plea or the employer that termination of service of the workman does not amount to retrenchment but is covered by Clause(bb). In the context of various paragraphs of the Fifth Schedule, Clause (bb) which is an exception to the principal section will have to be given a narrow interpretation. This clause has the effect of taking away a right which was vesting in the workman prior to its insertion. Therefore, the same cannot be allowed to be used as a tool of exploitation by the employer who, as already observed above, enjoys a position of dominance as against the workman. The employer is always in a position to dictate the terms of service vis-à-vis the workman or to be workman. The employer can unilately impose oppressive and unreasonable conditions of service and the workman will be left with little choice but to accept all such conditions. The employee cannot possibly protest against the incorporation of arbitrary unreasonable and even Civil Writ Petition No.11326 of 1999 - 3 - unconsciousable conditions of service in the contract of employment. Any such protest by the employee or to be a employee will cost him job or a chance to enter employment. In respect of a work of permanent or continuing nature, the employer can always give an employment of fixed term or incorporate a condition in the contract of employment/ appointment later that the employment will come to an end automatically after a particular period or on the happening of a particular event. In such a situation, if the Court finds that the conditions are arbitrary and unreasonable and the employer has forced these conditions upon a workman with the sole object of avoiding his obligation under the Industrial Disputes Act, a bald plea of the employer that the termination of service is covered by Clause (bb) will be liable to rejected.” The contention on behalf of the workman was therefore that the short duration between different spell of services that prevented the workman for reckoning of 240 days amounted to unfair labour practice and he should be taken to have the requisite 240 days of continuous service. 3. The learned counsel for the State vehemently contends that the appointment is only for leave vacancy and there had been no deliberate unfair labour practice indulged by the management. According to her, such a plea made by the workman had been rejected even by the Labour Court and there was no scope to reconsider the issue in the writ petition. 4. The periods of engagement during three spells leave out just a gap of one or two days and I have no doubt in my mind that even it was contended that there was a leave vacancy, there was deliberate act on the part of the management to deny to the workman the benefit that would Civil Writ Petition No.11326 of 1999 - 4 - accrue if he had completed 240 days of continuous service. I reverse the finding of the Labour Court and find the decision relied on by the petitioner's counsel as comprehensively governing the case. 5. The matter relates to a public employment where a person whose services were terminated cannot complain that he was entitled to reinstatement without proving that there is a right to the post that he held or there is a sanctioned post to which he could be accommodated. The State has filed an affidavit through his officer that there is no permanent vacancy and the engagement of the workman itself had been made only in leave vacancy of permanent employee. 6. Under the circumstances, I set aside the order of the Labour Court and allow for a compensation which in due regard to all the relevant considerations, is estimated at Rs.15,000/-. The writ petition is ordered as above. (K.KANNAN) JUDGE 28.07.2009 sanjeev