IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.13822 of 1998 Date of decision:27.07.2009 Tejinder Singh, General Secretary, Steel Yard Workers Union, Gobindgarh C/o Trade Union Council, Patiala. ...Petitioner versus The Managing Director, Punjab Small Industries and Export Corporation Limited, Udyog Bhawan, Chandigarh and others ...Respondents 2. Civil Writ Petition No.13957 of 1998 Tejinder Singh, General Secretary, Steel Yard Workers Union, Gobindgarh C/o Trade Union Council, Patiala. ...Petitioner versus The Managing Director, Punjab Small Industries and Export Corporation Limited, Udyog Bhawan, Chandigarh and others. ...Respondents CORAM: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. Vikas Singh, Advocate with Mr. Jagdev Singh, Advocate, for the petitioner. None for the respondents. ----- 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 two writ petitions arose out of dispute raised at the instance of two categories of workmen; one category of persons who Civil Writ Petition No.13822 of 1998 - 2 - claimed to be persons employed through contractors and another category of persons who claimed to be employed directly. Both of them faced retrenchment respectively by the contractor and the management. In the Writ Petition No.13822 of 1998, the dispute that had been raised on behalf of the contract labour had been through the General Secretary, Steel Yard Workers Union, Gobindgarh and a point of defence that was taken on behalf of the management was that the reference itself was bad, since the espousal of the dispute was not through the Union but through the office bearer of the Union. The Labour Court found, while answering the case of the contract workers, that the termination cannot be said to be wrong in law and rejected the reference. It also found that the reference was bad by the fact that no Union had espoused the cause of workmen for adjudication of the industrial dispute. As regards the claim of direct recruits of the management whose services had been retrenched, the Labour Court found it was not shown that any of the workmen had been employed for a continuous period of 240 days before the retrenchment and, therefore, there was nothing amiss in the action of the management to find in favour of the workmen. 2. The learned counsel appearing for the workmen, while addressing the case of the persons who are purported to have been employed through the contractor adverts to the decision in Steel Authority of India Limited Versus National Engineer Water Front Workers-AIR 2001 SC 3527, that held that persons who had been terminated by contractors could not be taken as having been terminated by the principal employer himself unless it is found that the employment Civil Writ Petition No.13822 of 1998 - 3 - of contract labour itself was merely a devise to get over the provisions of the Act. The workmen had not adduced evidence before the Labour Court that the management had merely used the contractor as camouflage for denying to the workmen their status as direct recruits. In the absence of any such evidence, it may not be possible to extend to the workmen who had been terminated any better benefit than what in a similar situation, the Hon’ble Supreme Court itself directed by providing that such persons who had been terminated a right of preference for being considered for re-employment, whenever vacancies arose and when there was a felt need to make fresh recruitments. Even as regards the persons whose retrenchment by the management was challenged in Civil Writ Petition No.13957 of 1998, the retrenchment was found to be not actionable by virtue of the fact that there was a clear rendering of a finding of fact that the workmen had not completed 240 days. Both classes of persons would therefore qualify for the only benefit of being considered in preference to any fresh recruits if further vacancies are notified and recruitments are to be done. 3. The espousal of the writ petition through the Union in the manner found by the Labour Court to be not valid, is, in my view, incorrect. The Labour Court was applying a hyper technical approach by observing that the espousal was done by the General Secretary of the Union and not by the Union represented the General Secretary. If there was a defect, the defect was more syntactical than of content. Such a defect shall not stand in the way of assertion of legitimate rights of the workmen. Civil Writ Petition No.13822 of 1998 - 4 - 4. While affirming to the finding of the Labour Court in both the cases that the orders of termination did not suffer from any legal vice, the workmen shall be entitled to protection, in the manner referred to above and by the decision in Steel Authority of India Limited (referred to supra). Subject to this modification only, the writ petitions are disposed of. (K.KANNAN) JUDGE 27.07.2009 sanjeev