Punjab-Haryana High Court
Municipal Committee Hodal vs P.O.Ind.Tribunal L/C F.Bad & Anr on 5 April, 2024
Neutral Citation No. : 2024:PHHC:048378
CWP-16633-2013 (O&M)
CWP-16893-2013 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
214
1. CWP-16633-2013 (O&M)
Decided on : 05.04.2024
Municipal Committee, Hodal
. . . Petitioner(s)
Versus
Presiding Officer,
Industrial Tribunal-cum-Labour Court-III,
Faridabad and another
. . . Respondent(s)
2. CWP-16893-2013 (O&M)
Municipal Committee, Hodal
. . . Petitioner(s)
Versus
Presiding Officer,
Industrial Tribunal-cum-Labour Court-III,
Faridabad and another
. . . Respondent(s)
CORAM: HON'BLE MR. JUSTICE SANJAY VASHISTH
PRESENT: Mr. Jagdish Manchanda, Advocate and
Mr. Ravi Gakhar, Advocate
for the petitioner(s) (in both cases).
Mr. R.S. Randhawa, Advocate
for respondent No.2 (in both cases).
****
SANJAY VASHISTH, J. (Oral)
1. This order shall dispose of aforementioned two writ petitions
i.e. CWP-16633-2013 (O&M), filed by the workman, and CWP-16893-2013
(O&M) filed by the Management, as the controversy involved in both the
aforementioned writ petitions is one and same.
However, for the purpose of disposal of these writ petitions,
JAWALA RAM main/common order is being passed in CWP-16633-2013 (O&M).
Neutral Citation No. : 2024:PHHC:048378
CWP-16633-2013 (O&M)
CWP-16893-2013 (O&M) -2-
2. Petitioner - Municipal Committee, Hodal, District Faridabad
(being Management) has filed both the writ petitions against the workmen
i.e. respondents No.2 - Zile Singh (in CWP-16633-2013) and Chander Vir
(in CWP-16893-2013), challenging the award dated 28.03.2012 (Annexure
P-4 in both cases), passed by Industrial Tribunal-cum-Labour Court-III,
Faridabad (in short, 'learned Tribunal'), whereby Reference Nos.161 & 162
of 2008, under Section 10(1)(C) of the Industrial Disputes Act, 1947 (for
brevity, 'ID Act'), have been answered in favour of the workmen.
While dealing with the question of sustainability of termination
of workmen - Zile Singh & Chander Vir, learned Tribunal has held that the
termination of both the workmen is illegal, and thus, they are entitled for
reinstatement in service, by observing that the workmen will be provided
preference over the others as per Section 25-H of the ID Act, while hiring
the drivers on contract basis till the permanent drivers are recruited as per
rules. Besides, further observed that in case the workmen are retrenched in
future, the benefits of Section 25-F of the ID Act, will be provided to them.
Cost of Rs.10,000/- in both the awards has also been imposed.
3. Facts as pleaded in both the cases in demand notice and claim
statement are as under:-
I. CWP-16633-2013:- In the case of Zile Singh
(respondent No.2 in CWP-16633-2013), pleaded case of
the workman is that on 02.08.2004, he was engaged as
driver in the Fire Brigade Department, which comes
under the Essential Services of the State. Last drawn
salary was Rs.3,000/- p.m. and the appointment of the
workman was effected after detailed interview, which
was held on 22.07.2004 by the panel of High Authorities
JAWALA RAM including City Magistrate Palwal, General manager,
Neutral Citation No. : 2024:PHHC:048378
CWP-16633-2013 (O&M)
CWP-16893-2013 (O&M) -3-
Haryana Roadways Ballabhgarh, Fire Station Officer
Palwal and Secretary, Municipal Committee Hodal. For
the said appointment, applications were invited through
newspaper Advertisement dated 25.06.2004.
Appointment was initially on the pattern of Haryana
Roadways on contract basis and workman worked till
02.04.2007 regularly without any break. However,
without following the mandatory provisions of the ID
Act, he was abruptly removed from the service. Thus,
through the demand notice, an industrial dispute was
raised by the workman.
In the written statement, Management pleaded that the
workman - Zile Singh was appointed only for 89 days as
driver in the Fire Brigade, so he is not entitled for any
service matter. There was break in the service after every
89 days, thus, cannot claim any benefit under the ID Act.
II. CWP-16893-2013:- In the case of Chander Vir
(respondent No.2 in CWP-16893-2013), pleaded case of
the workman is that on 02.08.2004, he was engaged as
driver in the Fire Brigade Department, which comes
under the Essential Services of the State. Last drawn
salary was Rs.3,000/- p.m. and the appointment of the
workman was effected after detailed interview, which
was held on 22.07.2004 by the panel of High Authorities
including City Magistrate Palwal, General manager,
Haryana Roadways Ballabhgarh, Fire Station Officer
Palwal and Secretary, Municipal Committee Hodal. For
the said appointment, applications were invited through
newspaper Advertisement dated 25.06.2004.
Appointment was initially on the pattern of Haryana
Roadways on contract basis and workman worked till
02.04.2007 regularly without any break. However,
without following the mandatory provisions of the ID
Act, he was abruptly removed from the service. Thus,
Neutral Citation No. : 2024:PHHC:048378
CWP-16633-2013 (O&M)
CWP-16893-2013 (O&M) -4-
through the demand notice, an industrial dispute was
raised by the workman.
In the written statement, Management pleaded that the
workman - Chander Vir was appointed only for 89 days
as driver in the Fire Brigade, so he is not entitled for any
service matter. There was break in the service after every
89 days, thus, cannot claim any benefit under the ID Act.
4. This way, the nature of working period of appointment, and
reason of removal is almost similar in both the cases, thus, finding is being
recorded in the case of Zile Singh i.e. CWP-16633-2013, which would be
applicable in the other connected case of Chander Vir i.e. CWP-16833-2013,
also.
5. After inviting pleadings of both the sides, learned Tribunal
framed the following three issues, which are as under:-
"1. Whether the services of the workman were illegally
terminated ? If so, what relief he is entitled to? OPW
2. Whether the claimant has no locus standi to file the
claim statement? OPR
3. Relief."
6. Learned Tribunal recorded its finding that the working period of
the workmen in both the cases is not under dispute. It is not the stand of the
Management that they have appointed regular driver on permanent basis in
place of the workmen, rather, one Management witness i.e. Rakhpal (MW-
1), appeared and admitted in his cross-examination that after the termination
of workmen, two other persons were employed on contract basis. Thus,
workmen - Zile Singh and Chander Vir, who were employed on temporary
basis, were replaced by other employees, whose services too were hired on
Neutral Citation No. : 2024:PHHC:048378
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contractual basis. Learned Tribunal held that it is a violation of Section
25-H of the ID Act.
7. Learned counsel for the petitioner(s) - Management, relied
upon the judgment appended with the writ petition as Annexure P-15 i.e.
Municipal Council, Samrala vs. Raj Kumar, 2006(3) SCC 81 : Law Finder
Doc Id # 191359) and submits that in the instant case, the workman, who
was appointed as 'clerk' on contractual basis, his termination was held to be
good.
However, facts in the present case are quite different to the case
referred by learned counsel for the petitioner(s) - Management, because in
that case Hon'ble Apex Court, dealt with a situation where the
workman was employed as 'clerk' on contract basis, because in the
Octroi Branch, one post was vacant and two employees were already on
leave.
In the case in hand, though initially, appointments were made
for 89 days. But for months and years together, said appointments were
continued by the Management. As already observed and deposed by the
Management witness itself that, no regular appointment was made, rather,
service has been replaced with other contractual employees, after removal of
the workmen in the present cases. Thus, there is a clear distinction between
the facts and circumstances of both the cases. Thus, provision of Section
2(oo)(bb) of the ID Act, cannot be applied in the present cases.
8. Rather, in the facts and circumstances of the present case and
taking note of the defense taken by the Management, the observation made
by the Hon'ble Division Bench of this Court in Chairman, The Mewat
JAWALA RAM Development Agency, Nuh vs. Ravinder Balwan and another: 2012(2) RSJ
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CWP-16633-2013 (O&M)
CWP-16893-2013 (O&M) -6-
428 : Law Finder Doc Id # 359423, para Nos. 2 &3 would be material,
which are reproduced as under:-
"2. We are afraid the Labour Court did not appear to
be acquainted with the rudimentary principles of labour law
inasmuch as it should have known that appointments for 89
days at a time are intended only to defeat the provisions of the
Employment Exchanges (Compulsory Notification of
Vacancies, Act 1959(Ref. Section 3 thereof) and such
successive appointments would ordinarily amount to an Unfair
labour practice. The issue of appointment for 89 days on
consolidated salary was not germane in the context of
compliance of mandatory provisions of Section 25F of the Act
regarding prior notice and payment of retrenchment
compensation. In the present case they had to be complied
with. The philosophy behind payment of retrenchment
compensation is to protect a workman against sudden
dislocation and to put some money in his pocket to tide over
immediate hardship and save him till he finds another job to
sustain himself and his family.
3. We are also rather unhappy over the finding of the
Labour Court that subsistence of the post of peon after
retrenchment was crucial to the issue and that there was
nothing wrong in bringing the services of the first respondent
to an end abruptly for want of vacancy. The Labour Court also
does not appear to be acquainted with the object and reasons
for introducing Section 2(oo)(bb) in 1984 by amendment.
Section 2(oo)(bb) ordinarily was intended for such
engagements that are under special contract, express or
implied which come to an end by efflux of time, or fixed tenure
under contract for a specified purpose which by nature is
limited by time. We may give an example so that the Labour
Court would construct a word picture in mind to help it decide
cases in future. Suppose a Chef has been engaged by a Hotel
to train cooks for a specified period, say one year and the
training is complete. The Cooks are trained. The contract is
over. The Chef must exit out and such automatic
disengagement would not have any reference to prior notice or
payment of retrenchment compensation u/s 25F of the Act. This
is only by way of illustration open to be multiplied in myriad
and different fact situations presented in each case. No hard
and fast rules can be laid down."
In clear terms, the practice of appointing the workman for 89
days and then to give a formal gap has been deprecated. Said view is also
tested and decided by the another Hon'ble Division Bench of this Court i.e.
Neutral Citation No. : 2024:PHHC:048378
CWP-16633-2013 (O&M)
CWP-16893-2013 (O&M) -7-
Director, Health & Family Welfare, Punjab, Chd. and others vs. Baljinder
Singh and another, 2006(1) PLR 506 : Law Finder Doc Id # 119647, on
the status of completion of 240 working days in one calendar year, position
of law regarding compliance of Section 25-F of the ID Act, has been held to
be mandatory. Relevant, para No.4 is reproduced as under:-
"4. It is not a matter of dispute that the respondent-
workman actually and factually rendered service in excess of
240 days in the 12 calendar months preceding the date of his
retrenchment. It is also not a matter of dispute, that at the time
of his retrenchment, he was neither issued the mandatory
notice envisaged under Section 25F of the Act, nor paid
compensation in lieu thereof, and further, he was not paid any
retrenchment compensation in terms of the mandate of Section
25F of the Act. It is, therefore, apparent that the termination
of the service of the respondent-workman was in clear
violation of the mandatory provisions of the Act."
9. Not only this, this Court has also carefully examined the initial
appointment letter of the workmen. Workman - Zile Singh was appointed in
ESM category, by saying that candidates are hereby appointed at the post
of Driver accordingly, fixed norm on contract basis, as per the pattern
adopted by the Transport Department, Haryana, against the five posts of
Drivers (three in Municipal Committee, Hodal and two in Municipal
Council, Palwal respectively) to strengthen the Fire Lender Services in
these municipalities.
Subsequent thereto, by issuing the short orders, the services of
the workmen were continued. From the initial issued appointment letter,
two aspects emerge that the pattern adopted is equal to the Transport
Department in the State i.e. Haryana State and the purpose is to strengthen
the functioning of the fire lender services of the Municipal Committee,
Hodal and Municipal Council, Palwal, respectively.
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CWP-16633-2013 (O&M)
CWP-16893-2013 (O&M) -8-
Thus, contention of the Management that the appointment is
only for 89 days is diametrically opposite to the purpose of strengthening the
Fire Department. Even before this Court, petitioner - Management could not
establish its stand that at first instance by appointing the drivers with a
specific and strong purpose to strengthen the fire lender services
subsequently, by limiting the appointment period of 89 days, how the
said purpose would be achieved. Thus, the manner of limiting the
services of the workmen for 89 days by issuing different appointment
letters is obviously, not justified under the law. Rather, it amounts to
unfair labour practice.
Admittedly, there is no allegation of any kind, against any of
the workman, such as; incompetency, lack of driving skill or any kind of
fault in the conduct. Thus, for the aforesaid reason also, judgment relied
upon, by the petitioner - Management i.e. Municipal Council, Samrala's
case (supra) would not be applicable for the purpose of decision of the
present writ petitions.
10. Needless to say that already there is finding given by learned
Tribunal that on the basis of statement of the Management's witness -
Rakhpal (MW-1) there is a clear observation that after terminating the
workmen in the present cases, other drivers were recruited on contract basis,
thus, which amounts the violation of provisions of Section 25-H of the ID
Act.
11. During the course of hearing, counsel representing respondent
No.2 - workmen, produced a photocopy of the letter No.FA/2003/44242-59,
dated 05.08.2003, issued from the office of the Director, Urban Estate,
JAWALA RAM Haryana, Chandigarh, to all the Deputy Commissioner of the State, whereby,
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CWP-16633-2013 (O&M)
CWP-16893-2013 (O&M) -9-
a conscious decision was taken to engage 117 drivers on the pattern adopted
by the Transport Department, Haryana. In the said letter, nowhere State of
Haryana directed to appoint the drivers only for 89 days.
Photocopy of the said letter is taken on the record of the writ
petition.
12. Thus, after examining the pleadings and hearing of the
submissions addressed by both the sides, this Court is on the firm view that
there is no error in the impugned award passed in both the writ petitions and
thus, same are worth to be maintained, without causing any interference
therein. Accordingly, both the writ petitions are hereby dismissed.
Misc. application(s), if any, also stands disposed of.
(SANJAY VASHISTH)
JUDGE
April 05, 2024
J.Ram
Whether speaking/reasoned: Yes/No
Whether Reportable: Yes/No
