CWP No. 11734 of 1999 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH CWP No. 11734 of 1999 Date of decision August 6, 2009 Punjab Police Housing Corporation Ltd. ....... Petitioner Versus The Labour Court, Patiala and others ........ Respondents CWP No. 15798 of 1999 Naginder Singh ....... Petitioner Versus The Presiding Officer, Labour Court, Patiala and another ........ Respondents CWP No. 5752 of 1999 Punjab Police Housing Corporation Ltd. ....... Petitioner Versus The Labour Court, U.T., Chandigarh and another ........ Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:- Mr. Raj Kaushik, Advocate for the petitioner in CWP No. 15798 of 1999 Mr. O. P. Batra, Advocate for respondent No.2 in CWP No. 5752 of 1999. Mr. Sarjit Singh, Sr. Advocate with Mr. Jagdev Singh, Advocate for the respondent in CWP No. 15798 of 1999 and for the petitioner in CWP No.11734 and 5752 of 1999. **** 1. Whether reporters of local newspapers 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. Writ petition Nos.15798 of 1999 and 5752 of 1999 CWP No. 11734 of 1999 2 challenge the respective awards answering references in favour of the workmen directing reinstatement and back wages. The second respondent in CWP No. 11734 of 1999 Naginder Singh is the petitioner in CWP No. 15798 of 1999 who has challenged the denial of back wages to him. All these writ petitions address the same issue as to the nature of engagement of the respective workmen and the illegality or otherwise of the so called termination. With the consent of all the counsel the three writ petitions are taken up and disposed of together. 2. It is an admitted case that the workmen had been engaged as draftsmen over a period of time with short breaks. The workman in CWP No.5752 of 1999 had been engaged between 20.11.1992 to 21.3.1995 with periodical contracts made each time for three months with gaps ranging between 2 days to 7 days. As regards the other workman whose case is covered in CWP No. 11734 of 1999 he was similarly appointed under periodical contracts entered with him from 14.6.1991 to February, 1993. These workmen had been employed in various projects at Barnala, Patiala and Bahadurgarh. The consistent case of the workmen had been that though there had been periodical contracts extending their service, actually they were being employed regularly and there was a regular nature of work which the Corporation was doing and being draftsmen, their services were essential for them. 3. The defence taken to the contentions of the workmen were that the engagement of the workman had been under specific contracts stipulating specifically on the engagement as under contract and it was not a case of extension of employment every time when a fresh contract was made but re-engagement depending on the continuation of the Project. 4. Before the Labour Court, the workmen tendered evidence to the effect that even apart from them that there were several CWP No. 11734 of 1999 3 other Draftsmen who had been employed on similar lines but they were subsequently regularized also. The evidence which was secured through Sh. Karnail Singh, its Administrative Officer was that other persons like Simpa Batra, Upkar Singh, Rita Rani and Mandeep had all been appointed about the same time or even after the petitioners, they were retained and even regularized while against the claimants alone, regularization was not made but the so called contracts were terminated. 5. The Labour Courts reasoned that in view of a clear admission by the Management witness that persons who had been brought under the so called contracts subsequent to the engagement of the claimants had also been regularized subsequently, the Management was adopting a discriminatory tactics and found that having regard to the fact that each of the workmen had worked for 240 days prior to the date of the respective dates of termination, there had been violation of Section 25-F as well as 25-G and 25-H. The Labour Courts observed that the principle of last-cum-first-go had not been adhered to. It was not brought out as to how the persons who had been engaged on similar lines as the claimants were subsequently regularized while it was not done for merely the claimants. Taking totality of circumstances, the Labour Courts found that the services of the workmen had been terminated illegally without complying with the mandatory provisions of Industrial Disputes Act, 1947 and directed reinstatement with back wages for Ravi and denied back wages alone to another person namely Naginder Singh. There were no differences in the manner of engagement of the two workmen but the difference in the ultimate disposition was on account of the fact that the cases came to be decided by two different Judicial Officers. 6. Learned Sr. counsel appearing for the Corporation would argue with specific reference to the nature of appointment which had been made to the workman stipulating specific periods of three months and CWP No. 11734 of 1999 4 also to the fact that even appointment letters referred to the engagement as on contract basis. Learned Sr. counsel would submit that the Corporation itself was established during the times of insurgency when several new Police stations and houses had to be constructed in various places and depending on the contracts that had been undertaken for construction, various types of persons were engaged on temporary basis or through contract and as and when the Projects were over their services became no longer relevant and the contracts were allowed to lapse. According to him the contractual workman got no protection any more than what the contract could provide and their non-engagement was excepted from the definition of retrenchment under Section 2 (oo) (bb) of the Industrial Disputes Act, It is undeniable that if the contracts were to be merely for specific periods for meeting such exigencies and if the workmen had completed their engagement through contract they would have no right to complain of illegal termination. 7. In this case, however, it is seen that the Labour Court has addressed the issue from the stand point of the nature of work which the Corporation had to obtain and how they were deliberately put through a long period with short breaks only in order that they shall not claim any rights under the Industrial Disputes Act. The Labour Court also adverted to the issue of how the Corporation had indulged in discriminatory practice which were inconsistent with their own case if several draftsmen engaged in various projects were required to be employed on contract depending on the extension of the Projects, the contracts with the various draftsmen should have also been merely extended. But, It happened, which was a matter of admission, that at least four other persons whose names I have referred already and who were engaged subsequently on similar lines as the workmen were subsequently regularized. To a pointed query as to how there was a different treatment only for certain class of so CWP No. 11734 of 1999 5 called contractors, the learned Senior counsel would only submit that the justification for such treatment for persons engaged in different places should be available and which could be established, if sufficient time is given to produce evidence. The case is decided before this Court on what was available before the Labour Court and how Labour Court had examined the case. The Corporation ought to have known what they were defending, when it was pointed out through evidence of workmen the specific instances of such discrimination. At least, it was the most opportune moment at the trial for the Corporation to show that there was no undue favoritism or preference shown but there were other policy considerations which enabled them to regularize certain classes of persons only. 8. Learned Senior counsel would also submit that amongst the Contract workers themselves there was no need for the Corporation to maintain a seniority list and the reasoning of the Labour Court that there had been a violation of Section 25-G was not tenable. If only all the workmen were treated only as contract workers the point urged by the learned Senior counsel would merit acceptance. Since it has been found by the Labour Court that they had been engaged continuously but through the device of contract which was but a camouflage and they were only to be treated as regular workman doing regular jobs, the principle that would exclude the contract workers cannot be applied. Indeed if there was a scope for application of Section 2 (oo) (bb), there was no question of admitting the claims of the workmen at all. 9. The Labour Courts have considered the case on the basis of evidence of witnesses and admissions made through the Management witnesses that they were regularly employed and finding that there had been discrimination and favoritism has held that it found that there were illegal terminations and awarded to them the claim for CWP No. 11734 of 1999 6 reinstatement and 50% back wages for one person and no back wages for the other. Learned counsel appearing for the petitioner brings to my notice a subsequent event of the fact that the workman who is covered in CWP 11734 of 1999 and 15798 of 1999 has since been employed by the proceedings of the Panjab University on 1.8.2006 as a Junior Engineer (Civil) on a scale of Rs.5800-9200 and he would not be entitled to any relief. I am only considering the case from stand point of how the Labour Courts have dealt with the cases and whether there required any interference. While I find no error in the awards of the Labour Court and would therefore state that there was no scope for interference. 10. However, I would still take note of the subsequent event which is brought before me and instead of order of reinstatement, I direct that in respect of the claimant in CWP No. 11734 of 1999 and 15798 of 1999, the workman shall be paid for the wrongful termination a compensation of Rs.35,000/-, which amount shall be paid within a period of eight weeks from the date of receipt of copy of the order, if the payment is not made within time, it shall carry simple interest at the rate of 7.5% per annum. As regards the claim of the workman in CWP No. 5752 of 1999, the award of the Labour Court is confirmed and the writ petition filed by the Management is dismissed. (K. KANNAN) JUDGE August 6, 2009 archana