Chairman, Mewat Development Agency, Nuh vs Ravinder Balwan and Another

Rajiv Narain Raina, J.

CM No. 5803 of 2011

The delay of 29 days in filing the present appeal is condoned for the reasons stated in the application.

CM No. 5804 of 2011

Application is allowed as prayed for.

LPA No. 2154 of 2011

This appeal under clause X of the Letters Patent is directed against the order of the learned Single Judge dated 7.9.2011 passed in CWP No. 5009 of 2010. The first respondent was unsuccessful before the Labour Court in a reference u/s 10(1)(c) of the Industrial Disputes Act, 1947 (''Act'' for short) against the termination of his services on 19.10.2002 but not without putting in more than 240 days of service in the preceding 12 calendar months. It is not disputed that the workman respondent was employed as a Peon for 89 days at a time on consolidated salary. The Labour Court veered the case into Section 2(oo)(bb) of the Act without actually citing that provision but meaning to. Since the case was brought within the fold of 2(oo)(bb), the Labour Court found no necessity for mandatory compliance of the provisions of Section 25F of the Act. That may be right in an appropriate case but if there is gross error of law and fact in forcing the termination into the ambit of 2(oo) (bb), then the basic premise on which the superstructure was built would vanish. The Labour Court has returned a finding that we would call utterly perverse. We should like to quote it:-

But the case in hand, there is nothing on the record to show that the post on which the workman was working is still subsisting. Secondly, the appointment of workman was contractual one. So, after the expiry of that period, dispensing with his service cannot be said to be wrong or illegal in any manner.

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.

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.

The Labour Court also unfortunately ignored the material fact, which had to be noticed by the learned Single Judge, that in the written statement filed by the appellant management it was stated that the services of the respondent workman were dispensed with as they were not found satisfactory. This would normally open another chapter, the chapter of misconduct, show cause notice and inquiry, but we would not go into it in appeal.

We have also visited the claim petition of the workman-first respondent filed before the Labour Court (P4) and find that there was a categorical averment in paragraph 3 that the post of Peon which was held by the workman was permanent and still existed. The Labour Court without discussing any evidence to the contrary has so clumsily in its award held that there was nothing on record to show that the post on which the first respondent was working is still subsisting. We dare say the Labour court should have asked that question from the appellant in the face of the assertion in the claim petition. Suffice it to say that we are not happy with the award of the Labour Court, which has been passed in a casual manner without reflection so necessary in venturing to do justice,

We would sign off by reminding ourselves that labour matters require sensitive handling. More so, because Judicial Officers trained in main line civil litigation and hidebound by the Code of Civil Procedure, the Evidence Act etc. man these courts which are in fact not courts but only akin to courts and so they would have to unlearn technical or complicated procedural law while acting as Presiding Officers. They are designed to follow such procedure as they think fit as laid down in Section 11(1) of the Act itself. This, of course, does not mean that they can freely depart from the fundamental and underlying principles of substantive or procedural law but would keep to such of them as interface with the cherished principles of natural justice. They are indeed not bound by technicalities. At the end we would request the labour court to re-read the three judgments cited in the award and especially the judgment of the Hon''ble Supreme Court in The Chief Soil Conservator Punjab and others v. Gurmail Singh 2009 LLR 875,

We uphold the order of the learned Single Judge. The award is set aside. Since we are dismissing this appeal in limine after hearing learned counsel for the appellant at length, we should not be taken as having expressed any final opinion with regard to the payment of 50% back wages behind the back of the 1st respondent. We cannot preclude the respondent workman from contending that he may be entitled to full back wages. In case that issue arises or is raised it would be decided in accordance with law without any reference to this order.

We however direct that the respondent would be reinstated forthwith and paid his 50% back wages within two months from the date of receipt of a certified copy of this order. Let a copy of this order be sent to the author of the award (P7).