Jasbir Singh and Others vs State of Punjab and Others

Jawahar Lal Gupta, J.—These two petitions reflect the grievance of the workmen of the Punjab Power Packs Limited which is a Punjab Government Undertaking. In Civil Writ Petition No. 13327 of 1994, the 16 petitioners pray for the issue of a writ of mandamus directing the Respondents viz. State of Punjab etc. to absorb them in some department or office. In the latter case which has been filed by the Union, the order dated September 26, 1994 by which the Additional Labour Commissioner, Punjab granted permission u/s 25-N of the Industrial Deputes Act, 1947 for retrenchment of the workmen, has been challenged. A few facts may be noticed.

The Punjab Power Packs-Respondent No. 3 is a registered Company. It was running in losses. In mid 1994, the Company decided that "out of its total strength of 210 employees 109 should be retrenched so that the Company should not further go into losses and it could be made a viable unit." On July 1, 1994, it framed a scheme to offer voluntary retirement to the employees and to pay compensation to them. A copy of the Scheme dated July 1, 1994, has been produced as Annexure P-2 with CWP No. 885 of 1995. On July 2, 1994, a clarification was given and a copy thereof has been produced as Annexure P-3. Prior to the issue of the scheme, the Finance Department had vide its letter dated June 18, 1994 sanctioned an amount of Rs. 51,31,000/-for payment of compensation etc. to the 109 employees who may opt for voluntary retirement. The third Respondent also sought the permission for retrenchment of the surplus staff. A notice dated July 27, 1994 was issued to the Union. Three months'' notice was given to each of the employees subject to the grant of permission u/s 25-N. A reply was filed by the Union. After hearing the parties, the Additional Labour Commissioner, Punjab granted permission as envisaged u/s 25-N of the Act. A copy of this order has been produced as Annexure P-12 with the Writ Petition. The petitioner Union impugns this order on various grounds, which shall be presently noticed.

Simultaneously, the workmen who are petitioners in CWP No. 13327 of 1994 also maintain that in view of the instructions issued by the State Government vide its letters dated March 4, 1992 and April 20, 1992, copies of which have been produced as Annexure P-6 and P-5 respectively, they have a right to be absorbed on suitable posts under the State Government. Their representation in this behalf which was filed on July 20, 1994 having been rejected by the Managing Director of the third Respondent, they have approached this Court.

The Respondents contest the claim made by the petitioners. It has been submitted that the petitioners have an effective alternative remedy under the Industrial Disputes Act and, thus, the writ petition cannot be entertained. Initially, a short affidavit was filed on behalf of the State of Punjab in which it was averred that all the petitioners have been offered appointment as Peons/Chowkidars. Copies of the letters dated March 1, 1995 by which the orders of appointment had been given to the 16 petitioners, were produced with this affidavit. It appears that the petitioners were not willing to accept these offers. Thereafter, an affidavit dated May 31, 1995 was filed in which it was averred that two of the petitioners fulfilled the requisite qualifications for appointment to Class III posts. Their service particulars have been circulated to all the Heads of Departments for adjustment on suitable posts on priority basis. The remaining 9 petitioners, who were Matriculates with third division, did not fulfil the requisite qualifications for-the posts of clerks. It was submitted that they could not be considered for appointment against Class III posts. It has been also pointed out that since the Company had incurred heavy losses during the last six years, the management had no alternative but to retrench the employees. On these premises, it has been prayed that the writ petitions be dismissed. Counsel for the parties have been heard.

Mr. Navkiran Singh, who has appeared for the petitioners in both the cases, has contended that the Respondents are bound to adjust the petitioners as clerks even if they have passed the Matriculation examination in the third division. He submits that the action of the Respondents in not doing so, is discriminatory. Furthermore, while challenging the order passed by the Additional Labour Commissioner u/s 25-N, it has been submitted that the copy of the application having not been furnished in accordance with the provisions of Section 25-N(2) and Rule 78-A of the Industrial Disputes (Central) Rules, 1957, the order 76-A of the Industrial Disputes (Central) Rules, 1957 cannot be sustained. The claim made on behalf of the petitioners has been controverted by the learned counsel for the Respondents.

The questions that arise for consideration are -

(i) Do the petitioners have a right to be appointed to Class III posts in spite of the fact that they do not fulfil the prescribed qualifications?

(ii) Is the order passed by the Additional Labour Commissioner, a copy of which has been produced as Annexure P-12 with CWP No. 885 of 1995, illegal?

"Reg: (i)

The Government has vide letter dated March 4, 1992 decided to "give jobs to those employees of Public Sector Undertakings who have become surplus" on priority basis. It is also clear from a perusal of the instructions issued by the Government vide letter dated April 20, 1992 to accord priority in appointment to Class III and IV posts to a member of the family of a person killed in terrorist action, or a deceased employee. The employees declared surplus on account of abolition of posts are also included in the list of persons for appointment on priority basis. However, no instructions have been placed on record to show that an employee has a right to be appointed to a post in spite of the fact that he does not fulfil the qualifications. In fact, as pointed out on behalf of the Respondents, there are specific instructions issued by the Government vide letter dated August 26, 1976 that "qualifications and experience cannot be relaxed".

It is no doubt true that when a person loses a job on account of abolition of posts, a certain amount of hardship is caused. However, it is equally important to remember that when any Industrial unit is continuously running in losses, the employer has no option but to adopt measures to reduce losses and to make the unit viable. The Industrial Disputes Act provides for the grant of certain benefits. It has not been shown that such benefits have not been accorded to the petitioners. Still further, the State Government has also provided for according a preferential treatment to the employees who have been rendered surplus in the matter of absorption against other available posts- This is a concession. Normally, every eligible person is entitled to be considered for appointment against an available post. The decision of the Government to accord preferential treatment to an employee who has; been declared surplus is in the nature of an exception to the general rule. This does not, however, mean that even if the employee does not fulfil the qualifications, he has a right to be absorbed against a Class III post. No instructions or rules having been cited by the petitioners, it is difficult to accept the contention raised on their behalf that even those amongst them who do not fulfil the qualifications, should be absorbed against Class III posts.

Admittedly, two of the petitioners have been absorbed against the Class III posts. Their particulars have not been, disclosed. However, so far as they are concerned, the petition is rendered infructuous. With regard to five petitioners, it has been averred that the State Government has already circulated their names for absorption against Class III posts. Whenever, the vacancies are available, they will be adjusted. Regarding remaining 9 petitioners, it is not: possible to say that they should be absorbed on Class III posts in spite of the fact that they do not fulfil the qualifications.

Mr. Navkiran Singh places heavy reliance on the decision of a Division Bench of this Court in Rekha Sharma v. State of Punjab and Anr., C.W.P. 12186 of 1994 decided on November 1, 1994. A perusal of the order shows that the said petitioner was already working as a clerk on substantive basis. In fact, she had initially joined the post on March 29, 1982. She had successfully completed the period of probation on September 5, 1984. She was declared surplus in the year 1992. Such is not the position in the present case. The petitioners were working in the pay scale of Rs. 680-15-845. The pay scale of the post of clerk is Rs. 950-1800. The posts in the Class IV service of the State Government are in the scale of Rs. 750-1350. This pay scale is admittedly higher than that of the posts held by the petitioners. In spite of this, they claim a right to be appointed to a still higher post of clerk, even though they are not qualified therefor. It appears that the petitioners are opening their mouth too wide. Neither in equity nor in law they are entitled to the relief claimed by them. Accordingly, the submission made on their behalf is rejected.

Mr. Navkiran Singh also submitted that the action of the Respondents in not absorbing the petitioners as clerks suffers from the vice of discrimination. Admittedly, such a plea has not been raised in the writ petition. No facts which may indicate that equals have been treated unequally have been disclosed in the petition. Consequently, the contention cannot be accepted.

In view of the above, the first question is answered in the negative. It is held that the petitioners do not have a right to be absorbed as clerks under the State Government.

On July 27, 1994, the third Respondent gave a three months notice to each of the workmen for retrenchment from the service of the Company. This was subject to the grant of ''permission by the competent authority u/s 25-N of the Act. The grounds on which the permission for retrenchment was sought were furnished to the workmen alongwith the notice. The workman were called upon to collect their dues on the stipulated date. They were also informed that retrenchment compensation in accordance with the provisions of law shall also be paid. Copy of the notice given to one of the workmen has been produced as Annexure P-9 with the writ petition. Alongwith this notice, the reasons for retrenchment were also given. The petitioners filed their reply to the notice. A copy of this reply has been produced as Annexure P-10. It was inter alia pleaded by the workmen that they were Government employees and that the provisions of the Industrial Disputes Act did not apply to them. The Management filed a replication. Thereafter, the Additional Labour Commissioner, which is the authority u/s 25-N passed the impugned order. The validity of this order has been challenged on the ground that u/s 25-N(2) copy of the application filed by the management had to be furnished. Learned Counsel has further submitted that under Rule 76-A of the Central Rules, the notice of the application had to be served in Form PA and that the information as required to be furnished in the Annexure to this form has also to be supplied to the workmen. On the other hand Mr. Gurdip Singh, learned counsel for the third Respondent has pointed out that the provisions of the Central Rules are not applicable as the State of Punjab has framed rules called the Industrial Disputes (Punjab) Rules, 1958.

As already noticed, the reply submitted by the petitioners before the competent authority is at Annexure P-10 with the writ petition. A perusal of this document shows that the petitioners had not raised any objection to indicate that either the provisions of Section 25-N(2) or; those of the rules had not been complied with. No such objection having been raised before the appropriate authority, the petitioners cannot be permitted to raise it for the first time in the writ petition before this Court. Furthermore, in the written statement filed on behalf of Respondent No. 3, it has been pointed out that all the concerned workmen as also the Union were duly served with notices alongwith the reasons on account of which the permission for retrenchment was sought. It is also the case of the Respondent that with the amendment of Section 25-N in the year 1994, the rules which had been framed by the Central Government in the year 1957 have become obsolete.

On a perusal of the documents placed on the record as also the pleadings of the parties, the facts that emerge are :

(i) The Respondent has been declared a Sick Industrial Company by the Board for Industrial and Financial Reconstruction under the provisions of Sick Industrial Companies (Special Provisions) Act, 1985;

(ii) The petitioners had fully participated in the proceedings before the competent authority;

(iii) The Company was forced to retrench the employees on account of financial constraints and it had suffered huge losses since March 31, 1989.

In view of the above, there appears to be no reason for holding that the competent authority had erred in granting permission to the third Respondent u/s 25-N. Still further, it deserves mention that in substance, all the information as required u/s 25-N as well as the rules was duly furnished to the petitioners. They suffered no prejudice in any manner whatsoever.

Accordingly, even the second question is answered in the negative.

In view of the above, there is no merit in both the petitions. These are, consequently, dismissed. In the circumstances of these cases, the parties are left to bear their own costs.