Kanwar Singh vs Presiding Officer, Industrial Tribunal-cum-Labour Court and Others

Augustine George Masih, J.—The prayer in the present writ petition is for setting aside of the Award dated 04.01.1999 (Annexure-P-4), passed by the Industrial Tribunal-cum-Labour Court, Rohtak, vide which the reference had been answered against the petitioner/Workman, holding him not entitled to any relief on the ground that the appointment of the petitioner/Workman was for a specific period and his termination was for non renewal of the contract and, therefore, the termination would be covered by exception (bb) of Section 2(oo) of the Industrial Disputes Act, 1947, (in short "the Act"). The claim was also rejected on the ground that there was an inordinate unexplained delay of six and half years in raising the demand notice.

Counsel for the petitioner/Workman submits that the petitioner was appointed as Land Valuation Officer on 89 days ad hoc basis. His initial appointment was vide Order dated 27.02.1986 (Annexure-P-1) and thereafter, vide Order dated 02.04.1986 (Annexure-P-2), further appointment was made on 89 days basis, wherein it was specifically mentioned that there would be a three days'' break in his service, i.e., from 05.03.1986 to 07.03.1986. This process was continued by respondents and vide Order dated 24.06.1986 (Annexure-P-3), again three days'' break from 05.06.1986 to 07.06.1986 was given in the service. He on this basis contends that the respondent/Management had used unfair labour practice against the petitioner to deprive him of his right of continuity in service. His further contention is that the work was always available with the respondent/Management, when his services were terminated. He was appointed against a regular post and at the time of his termination, he had completed more than 267 days of continuous service, which would entitle him to the benefit of protection provided u/s 25 of the Act as there was violation of the provisions of Section 25F of the Act, therefore, the petitioner is entitled to reinstatement in service with all consequential benefits. As regards the delay of six and half years, finding of which had been recorded by the Labour Court, counsel for the petitioner/Workman contends that the petitioner/Workman had worked till the year, 1992, but since he could not produce the records in support of this contention, it cannot be said that the petitioner/Workman had filed the demand notice late on 20.03.1993 as he has alleged that his date of termination was in the year, 1992. He on this basis contends that the impugned Award dated 04.01.1999 (Annexure-P-4), passed by the Industrial Tribunal-cum-Labour Court, Rohtak, cannot be sustained and deserves to be set aside.

On the other hand, counsel for respondent/Management submits that it is an admitted case of the petitioner/Workman that he was appointed against the vacant permanent post on ad hoc basis for a fixed term of 89 days and on each occasion after the expiry of the period of appointment, the petitioner was further given contractual appointment on ad hoc basis for 89 days with a break of three days between two periods. He refers to Annexure-P-1 to Annexure-P-3, which have been placed on record by the petitioner, wherein not only the period of 89 days has been mentioned, but the dates of commencement of period and the conclusion of the contract was mentioned. He on this basis contends that the appointment of the petitioner was for a specified period and, thus, it being a contractual appointment, the non renewal of the contract cannot be termed as retrenchment and, therefore, is covered under the exception as provided in Sub-section (bb) of Section 2(oo) of the Act. The finding recorded by the Labour Court is fully justified and does not call for any interference by this Court.

As regards the contention of counsel for the petitioner/Workman that the appointment of the petitioner/Workman was on regular post and, therefore, the work was available and he should have been allowed to work on the said post and his termination was not justified, he submits that it is the case of the petitioner/Workman himself that he was not appointed as per the statutory Rules, but thereafter the post was advertised and the regular selection was made, which was being held by the respondent/Management and the regular selected incumbent joined the said post and, therefore, the petitioner is not entitled to the benefit of reinstatement in service as neither the post on which the petitioner was appointed is available nor is work available.

As regards the contention of counsel for the petitioner with regard to the non compliance of the provisions of Section 25F of the Act, counsel for respondents submits that since his termination was covered by the ambit of Clause (bb) of Section 2(oo) of the Act, Section 25F of the Act would not be applicable. He on this basis prays that the present writ petition deserves to be dismissed as the same does not have any merit.

I have heard counsel for the petitioner and have gone through the records of the case.

The admitted position as has been projected by the petitioner himself in his claim statement before the Labour Court is that he was appointed against a regular post on purely ad hoc basis on fixed contract term. On each occasion, he was appointed on 89 days basis with a break of three days. A perusal of Annexure-P-1 to Annexure-P-3 would show that the term of appointment was specified and even the dates of commencement of the appointment and conclusion of the contract was specified. In the cross-examination before the Labour Court, the petitioner had admitted that his appointment was not in consonance with the statutory Rules, governing the service as the post was not advertised nor any selection process was held. The appointment of the petitioner/Workman, thus, cannot be said to be on regular basis. It is the case of the petitioner/Workman himself that on termination of services of the petitioner, regular selection had taken place and the regular selected incumbent has since joined the respondent/Management. This shows that on the post on which the petitioner was initially appointed, the regular post, stood filled by a regular incumbent in accordance with the statutory Rules, governing the service and, therefore, the petitioner/Workman cannot claim preferential right against the said post, when his appointment was not in accordance with the statutory Rules, governing the service. That apart, the appointment of the petitioner was for a specified period. The termination of services of the petitioner was due to non renewal of the contract. Since the contract of appointment was for a specified period and the said period had exhausted, non renewal thereof would be covered under the exception as provided under Sub-section (bb) of Section 2(oo) of the Act, thus, it would not amount to retrenchment. If that be so, although, the petitioner/Workman had worked with the respondent/Bank for 267 days, that would not entitle him to the protection of Section 25F of the Act as the termination of the petitioner would not be covered under the definition of retrenchment as provided u/s 2(oo) of the Act. The contention of counsel for the petitioner that the respondent/Management had resorted to use unfair labour practice because on each occasion, the petitioner/Workman was given a break of three days in service would not hold ground for the reason that no prejudice has been caused to the petitioner/Workman by such practice in service as it is not the allegation of the petitioner/Workman that it was intentionally done to deprive him of the benefit of the provisions of the Industrial Disputes Act, 1947.

Finding no merit in the present writ petition, the same stands dismissed.