Nand Lal Vs The Presiding Officer, Labour Court, Ambala and Others

Rajiv Narain Raina, J.@mdashThe challenge in this Petition is to the impugned award dated 28.2.2011 (P-1) passed by the learned Labour Court, Ambala declining the reference against the Workman and deciding in favour of the Management. The admitted facts are that the Petitioner was appointed as a Mali on 19.5.2003 and served the District Panchayat Bhawan, Yamuna Nagar under the employment of the office of the District Development and Panchayat Officer. He continued to serve till his services were terminated on 4.1.2008 without complying with the provisions of Section 25-F of the Industrial Disputes Act, 1947 (for short "the Act"). The employment appears to have continued on 89 days basis from 2003 till the Petitioner was lastly engaged by way of extension of service for 89 days w.e.f. 4.11.2007 to 4.1.2008. The Appointment Order contained a stipulation that on the expiry of the period, his services shall stand automatically terminated. In fact, an order was passed on 3.1.2008 terminating his service. It is not disputed that no retrenchment compensation was paid and also no compliance on the provisions of Section 25-F was made and, therefore, no reasons of termination were required to be assigned nor notice issued to him before putting his services to an end. In defence, the Management contended that the case fell in the exception to Section 25-F, that is, Section 2(oo)(bb) of the Act. The decisions in Ghaziabad Development Authority and Another Vs. Ashok Kumar and Another, ; Mahboob Deepak Vs. Nagar Panchayat Gajraula and Another, Madhya Pradesh Administration Vs. Tribhuban, Uttaranchal Forest Development Corporation Vs. M.C. Joshi, and State of M.P. and Others Vs. Lalit Kumar Verma, were relied upon to deny the claim.

2. It was the further contention of the Management that the Workman''s initial and subsequent repeated appointments were contrary to Rule and in violation of Articles 14 & 16 of the Constitution. The Petitioner was not appointed against a sanctioned post nor through a legally valid process of selection. A perusal of the statement of claim by way of Written Statement of the Management dated 13.10.2008 reveals that the defence of appointment contrary to Rule was not set up in defence. The Management relied upon the bare provisions of Section 2(oo)(bb) alone.

3. The defence of appointment contrary to Rule has been set up for the first time in defence of the Writ Petition through the Written Statement dated 13.12.2011 filed in this Court. Therefore, this defence cannot be permitted to be set up to defeat the claim of the Workman.

4. The Management produced MW-1 Gurcharan Singh, Accountant as a sole witness in support of it case who admitted that the Workman had served continuously from 2003 till his services were terminated.

5. The sole issue which requires consideration in this case is whether the last Appointment Order would furnish sufficient ground to attract the provisions of Section 2(oo)(bb). The learned Labour Court has held that since the appointment of the Workman was contrary to the mandate of Articles 14 & 16 of the Constitution, therefore, he would have no right to reinstatement on a public post. However, this Court finds that no Rule was produced laying down procedure for appointment of Mal is engaged on daily wages. Once such employment is offered and it is continued for about five years, it can safely be assumed that the successive appointments of the kind made would confer industrial rights on the Workman sufficient to attract the provisions of Section 25-F. Then to treat such employment as purely contractual employment and to rely on the terms of the last letter of appointment to justify termination by efflux of time would in my view amount to unfair labour practice, in absence of continued need of gardeners. In this background of facts, this Court is at a loss to fathom as to how the learned Labour Court has recorded a finding that the claim statement of the Workman was by way of setting up willful and intentionally false and frivolous pleas in abuse of process of law. This finding appears to be ipse dixit and thus, perverse. The law on the subject has been articulately restated in a series of judgments of the Supreme Court in Harjinder Singh Vs. Punjab State Warehousing Corporation, Anoop Sharma Vs. Executive Engineer, Public Health Division No. 1 Panipat (Haryana), and Devinder Singh Vs. Municipal Council, Sanaur, Besides, the Supreme Court has also cautioned Courts from entertaining pleas questioning the legality and validity of initial appointments de hors Rules for the first time in Writ proceedings in Harjinder Singh Vs. Punjab State Warehousing Corporation, , case supra when such pleas have not been taken before the Labour Court by the Management as in this case. The impugned administrative order dated 3.1.2008 (Annexure R-I/T) issued by the Deputy Commissioner, Yamunanagar is not in accordance with law and would, therefore, deserve to be quashed for the reason that it has been passed in colourable exercise of power to terminate and has to be treated in effect as an order of retrenchment u/s 2(oo) attracting Section 25-F of the Act. In Devinder Singh the Supreme Court held:

20. This Court has repeatedly held that the provisions contained in Section 25-F(a) & (b) are mandatory and termination of the service of a Workman, which amounts to retrenchment within the meaning of Section 2(oo) without giving one month''s notice or pay in lieu thereof and retrenchment compensation is null and void/illegal/inoperative-- The State of Bombay and Others Vs. The Hospital Mazdoor Sabha and Others, Bombay Union of Journalists and Others Vs. The State of Bombay and Another, The State Bank of India Vs. Shri N. Sundara Money, Santosh Gupta Vs. State Bank of Patiala, Mohan Lal Vs. Management of Bharat Electronics Ltd., Surendra Kumar Verma and Others Vs. Central Government Industrial Tribunal-Cum-Labour Court, New Delhi and Another, ; Gammon India Limited Vs. Niranjan Dass, ; Gurmail Singh and Others Vs. State of Punjab and Others, and Pramod Jha and Others Vs. State of Bihar and Others,

21. In Anoop Sharma v. Executive Engineer, Public Health Division, Haryana (supra), the Court considered the effect of violation of Section 25-F, referred to various precedents on the subject and held the termination of service of a Workman without complying with the mandatory provisions contained in Section 25-F(a) & (b) should ordinarily result in his reinstatement.

6. In the result, this Writ Petition is allowed. The impugned award dated 28.2.2011 (P-1) passed by the Presiding Officer, Labour Court, Ambala is set aside and the Petitioner is held entitled to reinstatement with continuity of service and full back wages. Let the Petitioner be now reinstated to service forthwith and his arrears of back wages paid to him within three months from the date of receipt of certified copy of this order.