CWP No. 8438 of 1996 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 8438 of 1996 Date of decision: .05.2009 Meena Rawat, Ex. Clerk/Typist in the office of Chief Engineer, Haryana Urban Development Authority (HUDA) at Panchkula .....PETITIONER VERSUS The Haryana Urban Development Authority, Manimajra (U.T.), Chandigarh through its Chief Engineer and another ..... RESPONDENTS CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. Amar Vivek, Advocate, for the petitioner. Mr. R.S.Ghuman, Advocate, for the respondents. *** AUGUSTINE GEORGE MASIH, J. The petitioner-workman has, through this writ petition, challenged the award dated 08.02.1996 passed by the Labour Court, U.T., Chandigarh (Annexure P-15), vide which the reference has been answered against the workman holding therein that the termination of the services of CWP No. 8438 of 1996 2 the workman on account of expiry of contract of services and non-renewal of the contract did not amount to retrenchment and she was, therefore, not entitled to any notice pay in lieu of notice and retrenchment compensation. Briefly, the facts of the case are that the petitioner was appointed as Clerk-cum-Typist on daily wage basis w.e.f. 21.08.1987 by respondent No. 2 for a period of one month i.e. up to 20.09.1987 on purely daily wages, which was fixed @ Rs. 26/- as per the rate fixed by the Deputy Commissioner, Ambala. The said amount was to be paid out of contingency for the actual working days subject to a maximum of Rs. 646/- in a month, whichever is less. She continuously worked with the Management on 30 days basis on the same terms and conditions with some intermittent breaks. On expiry of each term a fresh appointment was given and she continued as such till 26.03.1989. The petitioner filed CWP No. 3145 of 1989 in this High Court praying therein for regularization of services and also prayed stay of her termination. This Court was pleased to grant stay in favour of the workman during the pendency of the writ petition. The said writ petition was dismissed by this Court vide order dated 22.10.1992. Due to further non-renewal of the contract of services of the workman, the services of the petitioner were terminated by the respondent-Management. As per the contention of the workman, her service was verbally terminated on 13.01.1993. She preferred CWP No. 1483 of 1993 in this High Court challenging her termination and also claiming regularization of her services as she had put in more than five years of service with the Management. The said writ petition, however, came to be disposed of by this Court observing that the workman may avail her remedy before the Labour Court under the Industrial Disputes Act. Demand notice dated 13.02.1993 was CWP No. 8438 of 1996 3 served on the Management by the petitioner. Accordingly, the conciliation proceedings having been failed, the matter was referred for adjudication before the Labour Court vide notification dated 12.08.1993. On the basis of the pleadings and the evidence led by the parties, the Labour Court came to the conclusion that the services of the workman were terminated on account of expiry of contract of services and non-renewal of the contract did not amount to retrenchment, thus rejecting the claim of the workman that her services have been terminated illegally by the Management. It is this award passed by the Labour Court, Chandigarh dated 08.02.1996 (Annexure P-15), which is under challenge in the present writ petition by the workman. Counsel for the petitioner has contended that the workman was appointed on daily wage basis initially, on every occasion, she had been, after each month, granted further appointment. She continued as such from 21.08.1987 till 12.01.1993, which shows that the work was all through available with the Management and the appointment for each month was being given to her with an intention to deprive her of the benefit of protection of the Industrial Disputes Act. He submits that this mode of appointment adopted by the Management would fall within the unfair labour practice and the workman would be entitled to the protection of the Industrial Disputes Act as she has completed more than 240 days in the 12 preceding months from the date of her termination, which fact is not disputed by the Management. He further contends that each case of termination of the workman has to be looked into to ascertain the nature of appointment, the work being performed, the type of job, which the employee is performing, will have to be seen and merely because a fixed term has been prescribed in the contract of employment, would not deprive the workman of the benefit of the provisions of the Industrial Disputes Act. CWP No. 8438 of 1996 4 He relies upon a Division Bench judgment of this Court in the case of Bhikku Ram vs. The Presiding Officer, Industrial Tribunal-cum-Labour Court, Rohtak, 1998 (1) RSJ 703. He further relies on a judgment in the case of Trishla Devi vs. The Presiding Officer, Industrial Tribunal-cum- Labour Court, U.T., Chandigarh and others, 1999 (1) RSJ 58. He, on this basis, submits that the termination of the services of the workman being not in consonance with the provisions as contained under the Industrial Disputes Act for non-compliance of Sections 25-F and 25-G of the Industrial Disputes Act, the award passed by the Labour Court cannot be sustained. For supporting his contention with regard to non-compliance of the provisions of Section 25-G of the Industrial Disputes Act, he submits that the workman has categorically stated before the Labour Court that one Seema had joined later than her and still working with the Management. He further submits that the Management had admitted that no seniority list is maintained in respect of officials engaged on daily wages. He, on this basis, submits that the impugned award deserves to be set aside entitling the workman benefit of the Industrial Disputes Act. It has been very fairly admitted by the counsel for the petitioner that initial appointment of the workman being not in consonance with the Statutory Rules governing the service and it being not on regular basis, although against the regular vacancy, she may not be entitled to reinstatement in service in the light of the latest judgments and law laid down therein by the Hon'ble Supreme Court but would be entitled to compensation in the light of the judgment of the Hon'ble Supreme Court in Telecom District Manager and others vs. Keshab Deb, 2008 (4) SCT 33 and the Division Bench judgment of this Court in the case of State of Haryana vs. Ishwar Singh and another, 2008 (3) SCT 788 for the period CWP No. 8438 of 1996 5 of service rendered by the workman with the Management. On the other hand, counsel for the respondents has submitted that the workman was appointed on purely daily wage basis. Her terms of appointment were never changed and her continuance in service was dependent upon the availability of work. As there was shortage of regular staff, the workman was appointed due to contingency to cope with the work load of the office. He submits that the appointment of the workman was made by respondent No. 2 on the basis of the sanction, which he received from the competent authority. The term of appointment was fixed for a period of one month on each occasion, which fact has been admitted by the workman herself and has produced the appointment letters as Ex. W-3 to Ex. W-23 issued to her from time to time by the Management. It is true that the workman continued in service with the Management from 21.08.1987 till 26.03.1989 on purely daily wage basis for a fixed term of 30 days on each occasion with intermittent breaks. Thereafter, the workman preferred CWP No. 3145 of 1989 seeking therein regularization of her services and due to the stay granted by this Court in the said writ petition, the workman-petitioner was allowed to continue in service. The said writ petition was dismissed by the High Court vide its order dated 22.10.1992 and thereafter, on receipt of the orders of the High Court and on completion of her term of contract, the services stood automatically terminated due to non-renewal of the contract. Since the services of the workman came to an end as per the terms of contract governing the terms and conditions of appointment, this termination would not amount to retrenchment as the same would be covered under Sub Clause (bb) of Clause (oo) of Section 2 of the Industrial Disputes Act, which is an exception to retrenchment as the termination of the services of the workman was a result of non-renewal of contract of appointment CWP No. 8438 of 1996 6 between the employer and the workman on its expiry. He submits that the workman continued in service with the Management from 21.08.1987 till 26.03.1989 with intermittent breaks. This appointment was as per the requirement of the Management but thereafter, due to the stay granted by this Court, the workman continued to serve with the Management till 12.01.1993. He submits that since the appointment of the workman was for a fixed period and on the expiry of the said period, the contract was not renewed, this termination would be covered by Section 2 (oo) (bb) of the Industrial Disputes Act and the termination is not retrenchment and not illegal, which would attract the provisions of Section 25-F of the Industrial Disputes Act. For this contention, he relies upon a judgment of the Hon'ble Supreme Court in the case of State of Rajasthan and others vs. Rameshwar Lal Gahlot, AIR 1996 Supreme Court 1001. I have heard the counsel for the parties and have gone through the records of the case with their able assistance and guidance. I have gone through the impugned award dated 08.02.1996 (Annexure P-15) as well and do not find any illegality in the said award. The admitted factual position is that the appointment of the workman is not in accordance with the Statutory Rules governing the service. Her appointment was not on regular basis. As per the appointment letter, she was appointed on purely daily wage basis for a fixed term of one month. Thereafter again, fresh appointment letter was issued to her on daily wage basis for one month on each occasion. There are certain intermittent breaks, which are notional in nature. She was clearly made aware of her nature of appointment and the period of her appointment. Having accepted the said appointment, the contract between the parties had become final. She did not, therefore, hold a post nor did CWP No. 8438 of 1996 7 she have any right on the said post. In the light of the judgments passed by the Hon'ble Supreme Court in the cases of Ghazibad Development Authority and another vs. Ashok Kumar and another, 2008 (4) SCC 261, Mahboob Deepak vs. Nagar Panchayat, Gajraula, (2008) 1 SCC 575, M.P. Administration vs. Tribhuwan, (2007) 9 SCC 748 and State of M.P. and others vs. Lalit Kumar Verma, (2007) 1 SCC 575, the petitioner would not be entitled to reinstatement in service. It is not the case of the petitioner-workman that the terms of appointment have been violated by the Management nor is it the contention of the workman that the termination of the services of the workman is with a mala fide intention. Rather the perusal of the communication, reference whereof has been made by both the counsel during the arguments, would show that the work of the petitioner was appreciated and even a recommendation for regularization of the services of the workman was made. Since the claim of the workman was not covered by any of the policies formulated by the Government for regularization of the services of daily wagers, those recommendations were not accepted by the competent authority. The communications further suggest that because of non- availability of the regular employees and due to the work-load, the workman was appointed on fixed term basis to cope with the exigencies. The contention, therefore, of the counsel for the petitioner that monthly contractual appointments were being given to the workman to deprive her of the benefit of Industrial Disputes Act, which would amount to unfair labour practice, cannot be sustained. In any case, the workman is not entitled to claim the benefit of the period of stay, which the workman had been granted by this Court in CWP No. 3145 of 1989 till its dismissal by the High Court on 22.10.1992. This period, which the workman availed because of the stay granted by this Court with the Management, would not CWP No. 8438 of 1996 8 confer any right on her whether it be for claiming continuity of service or for claiming the benefit under the Industrial Disputes Act. As the records suggest, the writ petition i.e. CWP No. 3145 of 1989 preferred by the workman was dismissed by this Court on 22.10.1992 and the services of the petitioner came to an end on 12.01.1993 because of non-extension of her contract. Since the services of the workman were dispensed with as per her term of contract and further the termination of services of the workman was as a result of non-renewal of the contract of employment between the employer and the workman on its expiry, the same would not be covered by the definition of retrenchment, but would fall within the purview of Section 2 (oo) (bb) of the Industrial Disputes Act and, therefore, would not entitle her the protection of Sections 25-F and 25-G of the Industrial Disputes Act. The judgment relied upon by the counsel for the petitioner i.e. Bhikku Ram (supra) would not be of any help to the petitioner as in the present facts and circumstances of the case, as has been enumerated above, it cannot be said that the termination of services of the workman has been brought about with an intention to deprive her of the benefit of the Industrial Disputes Act and that the employers' action lacks bona fide or that unfair labour practice has been resorted to while terminating the services of the employee. Rather the case of the petitioner would be covered by the judgment of the Hon'ble Supreme Court in the case of State of Rajasthan and others vs. Rameshwar Lal Gahlot (supra), wherein the Hon'ble Supreme Court has held that once an appointment is for a fixed period, Section 25-F of the Industrial Disputes Act does not apply as it is covered by sub-clause (bb) of Section 2 (oo) of the Industrial Disputes Act. As has been concluded above, the termination of the services of the workman thus due to non-renewal of the contract of employment as it was on expiry of the contract would not amount to CWP No. 8438 of 1996 9 retrenchment. The contention with regard to the services of the workman being violative of Section 25-G of the Industrial Disputes Act, also would not hold good in the light of the above. As regards the contention raised by the counsel for the petitioner that the workman would be entitled to compensation in lieu of the work rendered by her with the respondents also cannot be accepted for the reason that her termination has been held to be in accordance with law and that being so, there is no violation of the provisions of the Industrial Disputes Act, which would entitle her to the claim of compensation. Therefore, the judgments relied upon by the learned counsel for the petitioner i.e. Telecom District Manager and others vs. Keshab Deb (supra) and State of Haryana vs. Ishwar Singh and another (supra) are not applicable to the case as those were cases where the termination of services of the workman were held to be in violation of the provisions of Industrial Disputes Act, which is not so in the present case. Finding no merit in the present writ petition, the same stands dismissed. ( AUGUSTINE GEORGE MASIH ) JUDGE May , 2009 pj Whether referred to Reporters...................Yes/No. CWP No. 8438 of 1996 10