IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.17082 of 2007 (O&M) Date of decision : 5th September, 2008 Government College, Sector-1, Panchkula (Haryana) through its Principal Shri Raghbir Chand Goyal. … Petitioner Versus Presiding Officer, Labour Court, Ambala and another … Respondents CORAM: HON’BLE MR. JUSTICE HEMANT GUPTA HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present : Mr. S.K. Hooda, Senior DAG Haryana for the petitioner. Mr. Amit Chopra, Advocate for respondent No.2. KANWALJIT SINGH AHLUWALIA, J. Civil Misc. No. 13829 of 2008 CM allowed. Affidavit of respondent No.2 is taken on record. Civil Writ Petition No.17082 of 2007 Present writ petition has been filed by Government College, Sector-1, Panchkula (Haryana) through its Principal Shri Raghbir Chand Goyal challenging impugned award (Annexure P-8) dated 20.04.2006 passed by the Labour Court, Ambala, whereby it has been ordered that Civil Writ Petition No.17082 of 2007 respondent No.2 Ram Karan (hereinafter called the ‘workman’) is entitled to reinstatement with continuity in service with full back wages. Respondent-workman had served a demand notice, on which following reference was sent to the Labour Court: “Whether the termination of services of workman Ram Karan is justified or not? If not so to what relief is he entitled” Thereafter, respondent-workman submitted claim statement (Annexure P-3), in which it was stated that he was employed by the petitioner-management on 05.09.1997 as a Chowkidar and his full salary was Rs.2900.00 p.m. and that subsequently, his salary was reduced to the half of his original salary, i.e. Rs.1450/- p.m. It was averred therein that his services were illegally terminated on 03.09.2002. The management filed written statement (Annexure P-4). It was stated therein that the respondent-workman had worked on contract basis from 12.12.1998 to 30.03.2002 with intermittent breaks. Issues were framed and parties led their evidence. Learned Labour Court in para 15 of its award, held that the workman had put in more than 240 days of continuous service in the last 12 preceding months before the date of his termination, i.e. 30.03.2002, and concluded as under: “21. Keeping in view my findings in the aforesaid issues, the claim petition of the petitioner succeeds and the same is hereby accepted with costs. Accordingly, the impugned order of the respondent thereby terminating the services of the petitioner-workman is hereby set-aside being wrong, illegal and null and void and the respondent is directed to reinstate the petitioner-workman alongwith all the consequential service benefits including continuity of service and full back wages.” 2 Civil Writ Petition No.17082 of 2007 Learned Labour Court further held that plea of the management that the workman was employed by the Contractor, cannot be believed and gave following reasoning: “17. Even otherwise, a notice Mark A issued by the Principal of the respondent’s Institution thereby inviting the tenders for the job/work of computer/campus cleaning/cycle stand security for the session 2002-2203 beginning from the July, 2002 and the application Ex.M16 submitted in response thereto by the alleged contractor Gurmit Singh cannot be accorded any credence at all as the said document do not bear any date thereon. Besides, it has not been clarified by the respondent-management as to on what terms and conditions the said contractor had allegedly employed the present petitioner nor it has brought the alleged contractor into the witness-box in order to support its assertions to the effect that the petitioner had been employed by the said Contractor or that why his services had been terminated by the said Contractor.” On the basis of this reasoning, Labour Court concluded that the workman is entitled to reinstatement with continuity of service. We are unable to accept this reasoning of the Labour Court. It was for the workman to prove that he has worked for 240 days. Therefore, he could not be held to be entitled to reinstatement into service. It has nowhere come in evidence that appointment of the workman into public employment was in pursuance of any advertisement issued or his name was requisitioned through any employment exchange. Workman was a contractual employee. The workman could not be reinstated in view of judgment of the Hon’ble Supreme Court in State of Karnataka and others v. Umadevi and others (2006) 4 SCC 1. 3 Civil Writ Petition No.17082 of 2007 We find that the view taken by the Hon’ble Supreme Court in Municipal Council, Samrala v. Raj Kumar (2006) 3 SCC 81 is that unless an employee is appointed as per rules and regulations, his/her appointment cannot be treated to be consistent with Articles 14 and 16 of the Constitution. Appointment given de hors the rules and regulations is liable to termination and is covered under Section 2(oo) (bb) of the Act and thus, does not amount to retrenchment. Similarly, in Gangadhar Pillai v. Siemens Limited (2007) 1 SCC 533, Indian Drugs & Pharmaceuticals Ltd. v. Workmen (2007) 1 SCC 408, Reserve Bank of India v. Gopinath Sharma and another (2006) 6 SCC 221 and UP Power Corporation Ltd. and another v. Bijli Mazdoor Sangh and others (2007) 5 SCC 755, it has been held that reinstatement of a workman in public employment will not be consistent with Article 14 unless a workman had been appointed by following rules and regulations. Learned counsel for the petitioner-management has further relied on judgment of this Court in Suresh Kumar Sharma v. Presiding Officer, Labour Court, U.T. Chandigarh and another 2006(4) Service Cases Today 672, wherein it was held that retrenchment has been defined in Section 2(oo) of the Act but the same does not include exception under Section 2(oo)(bb). Termination of the service of workman as a result of non-renewal of the contract or employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation shall not amount to retrenchment and Section 25-F compliance is not required. In the above said judgment, it has been held as under:- “...Therefore, the question of workman taking the plea that the matter falls within the purview of Section 25-F of the Act does not arise. It is not a case where the workman was 4 Civil Writ Petition No.17082 of 2007 continuously appointed with artificial gap of one day or so to say that the management was prone to unfair labour practice. A conjoint reading of the said offer and the extensions thereof (Anneuxres P-1 to P-3) clearly shows that they were contractual and were for a fixed term. In this backdrop the case of the petitioner-workman falls within the said exception of Clause (bb). It is thus imperative to conclude that the termination of the workman did not amount to retrenchment as the same was in consequence with the terms and conditions of his appointment/extensions. Thus, the services of petitioner have come to an end with efflux of time. Once the conclusion logically so arrived is that the termination of the workman from the employment did not constitute retrenchment within the meaning of Section 2(oo) of the Act, in our view there is no question of application of Section 25-F of the Act. Our this view finds support from a decision rendered by Hon'ble the Apex Court in the case of Haryana State Agricultural Marketing Board v. Subhash Chand and another, 2006(2) SCT 23 (SC): 2006 (2) Law Herald (SC) 1053. The Labour Court has rightly considered this aspect of the matter that the services of petitioner-workman were discontinued after the expiry of fixed term and it is not open to him to raise dispute under the Act by taking the plea of applicability of Section 25-F of the Act”. Resultantly, we accept the present writ petition and set aside the impugned award passed by the Labour Court, whereby services of the respondent-workman were ordered to be reinstated. [HEMANT GUPTA] JUDGE [KANWALJIT SINGH AHLUWALIA] JUDGE September 05, 2008. rps 5