C.W.P. No.9633 of 1999 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.9633 of 1999 Date of Decision: 18.12.2009 The Haryana State Cooperative Apex Bank Limited, Sector 17-B, Chandigarh through its Managing Director ....Petitioner Versus Presiding Officer, Labour, U.T., Chandigarh and another ....Respondents Present: Mr. S.S. Dalal, Advocate for the petitioner. Mr. R.N. Raina, Advocate for respondent No.2. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporters or not ? Yes 3. Whether the judgment should be reported in the Digest? Yes -.- K. KANNAN J.(ORAL) 1. The award under challenge is a direction for reinstatement with 40% back wages to a Clerk appointed in the Haryana State Cooperative Apex Bank on an alleged contingent vacancy for a term of 89 days that began on 14.09.1995 and extended till his services came to an end on 09.06.2006. 2. The workman complained that the short-term engagements were a deliberate unfair labour practice when there was work available and although the order of appointment on the periodical extensions delimited his period of engagement, the C.W.P. No.9633 of 1999 -2- termination that ultimately resulted must be taken only as constituting a retrenchment without complying the provisions of Section 25-F of the Industrial Disputes Act. The Labour Court found in favour of the workman that the appointment for specific periods was unfair labour practice and directed reinstatement. 3. The contention of the learned counsel appearing for the Bank is that the affairs of the Bank are governed by the Cooperative Societies Act and Service Rules framed under the Act called as Haryana State Cooperative Bank Staff Service (Common Cadre) Rules, 1948. He refers in particular to Rule 7 which details the nature of appointment as falling within four categories regular, temporary, ad hoc and on daily wages and the mode of appointment is prscribed in Rule 8. The Rule 8.8(x) states that post of Clerk shall be by direct recruitment or by promotion from Record Keeper. The manner of direct recruitment is set out in Rule 8.3 which states that the appointment shall be after proper advertisement in at least one leading daily newspaper mentioning the qualifications required, grade of pay and other allowances and notifying to the Employment Exchange. The contention of the petitioner is that the appointment, which is offered, although on ad hoc basis could not have been done other than through a recruitment process set out in Rule 8.3 of having to go through the advertisement and notification to the Employment Exchange. The appointment that C.W.P. No.9633 of 1999 -3- was made on 14.09.1995 was de hors at the rules and was, therefore, invalid. In any event, according to him, the appointment was only for a particular period and the termination that resulted did not constitute a retrenchment. 4. Learned counsel appearing for the respondent contends that the Labour Court has found that there was an unfair labour practice and admittedly work was available. According to him, the petitioner had advertised for 25 posts on 05.12.1994 and they had also conducted interview on 28.12.1994. The regular appointment was issued only to one person on 09.11.1995 and to yet another person on 16.11.1995. This finding was brought on record to show that all the remaining 23 posts had not been filled up. According to him, the engagement, which was done after the advertisement, was at a time when the vacancy was very much available and the engagement only for a temporary period constituted unfair labour practice, which was what the Labour Court has held. 5. The availability of vacancy but the choice of management to go for short term appointment might be an instance to prove unfair labour practice but it has to be also seen in the context of other relevant factors as to whether the appointment could have been issued even to such ad hoc employees in the manner provided otherwise than through Rules for a public appointment or an employment of society which is C.W.P. No.9633 of 1999 -4- governed by statutory provisions of rules. The persons at the helm of affairs such as Managing Director, who has a power to issue appointments 5% of vacancies, will have still to resort only to modes of appointment provided under the Rules and cannot go for engagement otherwise than through such Rules. It is obviously a case where there were vacancies and that was why an advertisement had been issued. If posts could not be filled up, they must again resort to such procedure as the rules provided. A Managing Director cannot arrogate to himself a power to indulge in whimsical appointment and put the lives of young aspirants in the job market to such serious jeopardy. It is common experience that employment are not aplenty and there are hungry millions waiting for some form of engagement. This case stands out among several other cases where a young aspirant has been shown the carrot and stick policy, when after an employment he is later confronted with the unsavoury incident of the Managing Director of having made the appointment otherwise than through recruitment rules. Perhaps the workman was not at fault but even the fault which the Society has practised results in an exit situation unfortunately that a statutory body cannot force a mode of engagement otherwise than through rules. The Court's insistence for complying with the rules, which has the effect of jettisoning from employment, persons who have been brought into the labour force, may be harsh but this is again intended only C.W.P. No.9633 of 1999 -5- to ensure that there is a transparency in employments and there is a fair-play when recruitments are done and every person in the job market gets a level play field. Nepotism must go at all times and the first step in that direction would be look for punctilious observance of statutory rules. The rules are breached and that is good enough reason that the workman is shown the door out of his employment. 6. The finding of the Labour Court that there was an unfair labour practice has been made without inference to statutory rules and the award is, therefore, set aside. If the workman's engagement by the Managing Director without resort to the rules was in violation of the rules then the question of compensating such a workman also does not arise. 7. The writ petition is allowed. But in the peculiar circumstances of a faulty practice indulged by the Management, the petitioner shall pay the costs of Rs.10,000/- to the workman. (K. KANNAN) JUDGE December 18, 2009 Pankaj*