IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No. 18023 of 2008 Date of Decision: October 7, 2010 Arunjit Lal Verma …Petitioner Versus State of Punjab and others …Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON’BLE MS. JUSTICE RITU BAHRI Present: Mr. D.S. Patwalia, Advocate, for the petitioner. Mr. Suvir Sehgal, Addl. AG, Punjab, for the respondents. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. This petition filed under Article 226 of the Constitution seeks quashing of notification dated 10.10.2008 (P-6) issued by the State of Punjab constituting six Industrial Tribunals at Amritsar, Jalandhar, Ludhiana, Patiala, Gurdaspur and Bhatinda for adjudication of the industrial disputes relating to any matter specified in the Second or Third Schedule of the Industrial Disputes Act, 1947 (for brevity, ‘the Act’) and for performing such other functions as may be assigned to them under the Act within their respective jurisdiction. The Presiding Officers of the Labour Courts who were appointed vide various notifications issued during 2007 and 2008, have been appointed as Presiding Officers of the Industrial Tribunals. Challenge has also been made to the order C.W.P. No. 18023 of 2008 dated 5.11.2008, passed by the Government of Punjab, Labour Department, dispensing with the services of the petitioner as Presiding Officer, Industrial Tribunal, Punjab, Chandigarh with immediate effect (P-7). The petitioner has also sought a writ of certiorari setting aside condition No. 2 of the terms and conditions of his appointment as Presiding Officer, Industrial Tribunal, Punjab, Chandigarh, being arbitrary, unjust, unfair, unreasonable and violative of Articles 14, 16(1), 19(1)(g) and 21 of the Constitution. Still further a mandamus has been sought directing the respondents not to transfer the cases which were pending before the Industrial Tribunal, Punjab, Chandigarh. 2. Facts of the case may first be noticed. The petitioner joined the Uttar Pradesh State Judicial Service in April 1975 as a Civil Judge (Junior Division)/Munsif. Eventually he was promoted as Additional District and Sessions Judge in the year 1987. In January 2000, he joined as the Presiding Officer, Debts Recovery Tribunal at Chandigarh on deputation for a period of five years from 19.1.2000 to 18.1.2005. During this period he was promoted as District and Sessions Judge in the year 2004 in his parent department. After completing the said period of five years as Presiding Officer, DRT, Chandigarh, he was posted as District and Sessions judge, Mau in Uttar Pradesh. On 21.4.2005, the State of Punjab appointed the petitioner as the Presiding Officer, Industrial Tribunal, Punjab, Chandigarh for a period of five years, which was to commence with effect from the date of his taking over as such. It was also mentioned in the appointment letter that the terms and conditions of his appointment would be determined later on in consultation with the Department of Finance and Personnel (P-1). The petitioner sought voluntary retirement from the post of District and Sessions Judge w.e.f. 30.4.2005 and joined as Presiding Officer, Industrial Tribunal, Punjab, Chandigarh, on 2.5.2005. Thus, 2 C.W.P. No. 18023 of 2008 as per the appointment letter the term of five years was to come to an end on 1.5.2010. On 11.10.2005 (P-2), the State of Punjab allowed the following facilities to the petitioner: a) House Rent Allowance at the rate of Rs. 25,000/- per month in lieu of rent free accommodation; b) Leave Travel Concession twice a year (By Air); c) Sumptuary Allowance at the rate of Rs. 2,000/- per month; d) Five thousand per month free telephone calls at the residence; and e) Free water and electricity facilities at the residence. 3. On 10.8.2006 (P-3), the following terms and conditions of appointment of the petitioner as the Presiding Officer, Industrial Tribunal, Punjab, Chandigarh were approved: “1) He would be paid emoluments after deducting the pension from the last drawn pay per month. 2) If the Government thinks appropriate that because of ill- health he is not able to discharge his duties, he can be removed from the Government service without advance notice. The Government has the right to remove him from service at any time due to administrative reasons. 3) Punjab Civil Services Rules would also apply to him which apply to the Punjab Government employees who are equal in rank to him. 4) If the Government has any doubt about his health, then it can ask him to get him medically examined.” 4. It is appropriate to mention here that the Industrial Tribunal, 3 C.W.P. No. 18023 of 2008 Punjab, Chandigarh was established by a notification dated 16.10.1987, in exercise of the powers conferred by Section 7A of the Act for adjudication of industrial disputes in the State of Punjab relating to any matter, whether specified in the Second or Third Schedule to the Act (P-4). Shri Pritpal Singh, Retried Judge of Punjab and Haryana High Court, was appointed as its first Presiding Officer for a period of one year from the date of assuming charge by him. Thereafter, various Presiding Officers were appointed from time to time under the provisions of Section 8 of the Act. The petitioner has claimed that the Tribunal was constituted for an unlimited period because no time frame was specified at the time of its establishment in 1987. 5. A public interest litigation bearing CWP No. 12994 of 2005 (Chaman Lal Bashisht v. State of Punjab and others) was filed in this Court with regard to providing facilities and better working conditions for the working of the Industrial Tribunal, Punjab, Chandigarh. On 25.7.2008, when the said writ petition came up for hearing, learned Additional Advocate General, Punjab, pointed out that there were inadequate number of cases pending before the Industrial Tribunal, Punjab, Chandigarh, therefore, the State of Punjab would not like to continue with the Industrial Tribunal and would like to establish Labour Court-cum-Industrial Tribunal at Ludhiana on the pattern of State of Haryana. Subsequently, on 12.9.2008 the following order was passed in CWP No. 12994 of 2005:- “ Mr. Amol Rattan Singh today submits, on instructions from the Labour Commissioner, who is present in person, that the Govt. are taking a decision to wind up the Industrial Tribunal and distribute the pending work among the existing Labour Courts, which shall be re-designated as Industrial Tribunals-cum-Labour 4 C.W.P. No. 18023 of 2008 Courts. This would, according to him, render the entire controversy regarding the inadequacy of infrastructural facilities available to the Industrial Tribunal academic. He submits that the necessary notification abolishing the Industrial Tribunal and re- designating the existing Labour Courts as Industrial Tribunals- cum-Labour Courts shall be issued within one week. A perusal of the orders passed by this Court from time to time would show that this writ petition had been disposed of by an order passed on 17th March, 2006 with directions to the respondents to take appropriate steps for providing necessary infrastructure to the Labour Courts situate in Amritsar, Patiala, Bhatinda, Jalandhar, Ludhiana and Gurdaspur. Subsequent orders passed by this Court noticed the shortcomings in the infrastructural facilities, including the staff to be posted to work in these Labour Courts. We do not, however, have a consolidated and clear picture of what is the state of affairs prevailing in these courts at present. Without finding fault with the proposed abolition of Industrial Tribunal and distribution of the pending work to Industrial Tribunals-cum- Labour Courts after re-designation as suggested, the facilities available in these establishments shall have to be upgraded to suit the requirements of the courts as also the officers who preside over the same. In the circumstances and before we pass any further orders in the matter, we deem it fit to direct the Labour Courts situated in Gurdaspur, Ludhiana, Patiala, Bhatinda, Jalandhar and Amritsar to submit reports about the infrastructural facilities available to them 5 C.W.P. No. 18023 of 2008 and the shortcomings and deficiencies, if any, that need to be removed. The said courts would also indicate whether the staff posted with them is adequate having regard to the pendency of cases with each one of them. The Registry shall communicate this directions to the Labour Courts and secure the relevant reports by fax so as to be put before us on the next date of hearing. This petition shall in the meantime stand adjourned to be posted again on 18.9.2008. 6. The petitioner in the instant petition has, however, submitted that more than 200 cases on an average basis were pending before the Industrial Tribunal, Punjab, Chandigarh and a wrong statement was made before this Court. The petitioner has also placed on record a month-wise list of cases, which were pending during 1997 to 2008 (P-5). Relying upon various judgments the petitioner has claimed that by an executive action the State Government cannot chose to abolish an Industrial Tribunal on its whims and fancy, especially when industrial disputes/references are pending before it. 7. It is apposite to mention that initially the petitioner had filed the writ petition seeking a writ in the nature of prohibition restraining the respondents not to abolish the Industrial Tribunal, Punjab, Chandigarh and notice of motion was issued vide order dated 17.10.2008. However, in terms of statement given by the learned State counsel in CWP No. 12994 of 2005, a notification dated 10.10.2008 was issued establishing six Industrial Tribunals at Amritsar, Jalandhar, Ludhiana, Patiala, Gurdaspur and Bhatinda (P-6). On 5.11.2008, another order was passed by the Principal Secretary to Government of Punjab, Labour Department, dispensing with the services of the petitioner as Presiding Officer, Industrial Tribunal, Punjab, Chandigarh with immediate 6 C.W.P. No. 18023 of 2008 effect (P-7). Faced with this situation, the petitioner after seeking permission of this Court amended the writ petition and challenged the notification dated 10.10.2008 and order dated 5.11.2008 (P-6 & P-7 respectively). 8. In the written statement filed by the respondents the stand taken is that the State of Punjab has taken a conscious decision to abolish the Industrial Tribunal, Punjab, Chandigarh, keeping in view the larger public interest and has rather established six Industrial Tribunal at various locations in the State of Punjab to decide industrial disputes relating to any matter specified in the Second and Third Schedule of the Act. Regarding dispensing with the services of the petitioner as the Presiding Officer, it has been stated that the same has been rightly done away with in terms of Condition No. 2 of the terms and conditions fixed by the Government vide letter dated 10.8.2006 (P-3). It has further been stated that the cases pending before the Industrial Tribunal, Punjab, Chandigarh, have already been transferred to the newly established six Industrial Tribunals as per their respective jurisdiction. Moreover, no prejudice or loss has been caused to the petitioner because he had sought voluntary retirement only three months before his actual date of superannuation and he has already served for more than 3 years thereafter as the Presiding Officer of the Industrial Tribunal, Punjab, Chandigarh. 9. Having heard learned counsel for the parties at considerable length and perusing the paper book with their able assistance, we are of the considered view that the challenge to the impugned notification dated 10.10.2008 (P-6) has been rendered infructuous because the tenure of five years for which the petitioner was appointed as the Presiding Officer, Industrial Tribunal, Punjab, Chandigarh, has since expired during the pendency of this petition on 1.5.2010, even though his services were dispensed with before completion of the his 7 C.W.P. No. 18023 of 2008 tenure of five years on account of abolition of the Industrial Tribunal. Even if the notification at the instance of the petitioner is quashed he cannot serve as Presiding Officer. Therefore, it has become academic to examine the challenge to the impugned notification dated 10.10.2008 (P-6). The cases which were pending before the Industrial Tribunal, Punjab, Chandigarh, have also been transferred to the six Industrial Tribunals established by notification dated 10.10.2008 in accordance with their respective jurisdiction and some of them might be decided by now. Therefore, we are not inclined to enter into any academic discussion in respect of the impugned notification dated 10.10.2008. The writ petition to that extent is rendered infructuous. 10. The only question which survives for determination is whether the petitioner would be entitled to grant of salary and other allowances for the remainder tenure of the office of the Presiding Officer, Industrial Tribunal, Punjab, Chandigarh. He has served as Presiding Officer of the Industrial Tribunal from 2.5.2005 till 5.11.2008 although his tenure of 5 years was to end on 1.5.2010. His services have been dispensed with abruptly and he has been put to a disadvantageous position. 11. Learned counsel for the petitioner has placed reliance on the judgments of Hon’ble the Supreme Court rendered in the cases of Dr. L.P. Agarwal v. Union of India, AIR 1992 SC 1872 and P. Venugopal v. Union of India, (2008) 5 SCC 1, for the proposition that if a post is a tenure post then it cannot be cashiered pre-maturely unless there are allegations of misconduct etc. to adopt such a course. However, the learned Additional Advocate General has placed reliance on another set of judgments like Sri Justice S.K. Ray v. State of Orissa, (2003) 4 SCC 21 and a Division Bench judgment of this Court rendered in the case of I.P. Vasishth, (Retd. Judge Allahabad High Court v. 8 C.W.P. No. 18023 of 2008 State of Haryana, 2005 (2) P.L.R. 70, to argue that if the termination is justified and is in larger public interest then the incumbent does not become entitled to payment of any salary for the remaining period. 12. We are not inclined to decide the aforesaid question in the facts and circumstances of the present case for two reasons. Firstly, the petitioner cannot be reinstated as his tenure of 5 years in any case has come to an end on 1.5.2010. Secondly, we have already taken the view that the question of abolishing the Tribunal has become academic. Once the question concerning abolition of the Tribunal has been rendered as an academic question then it would be impertinent to go into the question of justification of termination of the petitioner’s service. Thirdly, his remainder period is only 18 months. Therefore, leaving the aforesaid question open we hold him entitled to payment of salary and allowances for the remainder period as compensation with a proviso that he files an affidavit that he was not employed elsewhere during this period. 13. As a sequel to the aforesaid discussion we direct that the petitioner be paid salary and allowances for the left over tenure i.e. for the period from 6.11.2008 to 30.4.2010 in the then prevailing revised pay scale provided he files an affidavit deposing therein that he was not employed elsewhere during the period from 6.11.2008 to 30.4.2010. Let the affidavit be filed by the petitioner within a period of one month from the date of receipt of a certified copy of this order and the payment, if any, be made within a period of two months thereafter. 14. The writ petition stands disposed of in the above terms. (M.M. KUMAR) JUDGE 9 C.W.P. No. 18023 of 2008 (RITU BAHRI) October 7, 2010 JUDGE Pkapoor 10