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Judgment
Augustine George Masih, J.—The prayer in the present writ petition is for setting aside of the Award dated 27.08.2008 (Annexure-P-4), vide which the reference had been answered in favour of the respondent No. 2/Workman, holding him entitled to reinstatement on his previous post in the same status with continuity of service and 50% back wages from 25.08.2006.
Counsel for the petitioner/University contends that the respondent No. 2/Workman was appointed as a Driver on purely contractual basis initially for 89 days, vide letter dated 03.07.2001 (Annexure-P-1), wherein it was specifically stated that his engagement could be terminated earlier to the time of 89 days without any notice and the said appointment would not confer any right upon the respondent/Workman of appointment to any other post in the University. It is further specified that on expiry of the contractual period, the services would stand automatically terminated. He contends that thereafter, although, the respondent/Workman was from time to time allowed to work with the petitioner/University, i.e., from 26.11.2001 to 22.02.2002, 18.03.2002 to 16.04.2002, and from 17.04.2003 to 14.07.2003, but on the same terms and conditions as specified in the appointment letter (Annexure-P-1). As the respondent/Workman had not completed more than 240 days in service in the 12 preceding months from the date of his termination, i.e., 14.07.2003, a specific finding had been returned by the Labour Court in its impugned Award. The only ground, which had weighed with the Tribunal, while granting the respondent/Workman the benefit of reinstatement in service, was violation of Section 25H of the Industrial Disputes Act, 1947, (hereinafter referred to as ''the Act''). He contends that the approach of the Labour Court in coming to this conclusion was totally devoid of merit as the Labour Court had proceeded to hold that the adjustment of three Class-IV employees of the staff, who were peons but temporarily assigned duties of Drivers on the vehicles by the Vice Chancellor. He contends that the said interpretation put forth by the Labour Court is not sustainable. His contention is that after the termination of the services of the respondent/Workman, two regular posts of drivers were advertised, in which respondent/Workman also participated in the selection process, but was not selected and, therefore, the provisions of the Industrial Disputes Act, 1947, have not been violated by the petitioner/University, which would entitle the respondent/Workman the benefit of reinstatement in service, as has been ordered by the Labour Court. His further contention is that the appointment of the respondent/Workman was covered by the provisions of Section 2(oo)(bb) of the Act as it was for a specified period and, therefore, it cannot be termed as retrenchment as defined in the Industrial Disputes Act, 1947, which would entitle the respondent/Workman reinstatement in service.
On the other hand, counsel for respondent/Workman has vehemently argued that the services of the employees of the petitioner/University are covered by the Maharishi Dayanand University Service and Conduct Rules for Non Teaching Employees (hereinafter referred to as ''the Rules''). He contends that the permanent posts and temporary posts are defined in Rules 2, 8, and 18 of the Rules. His further contention is that the temporary and permanent services are provided in Rule 10 and the method of appointment in Rule 12 of the said Rules. Rule 14.1 of the Rules provides for the seniority to be maintained. All these go to show that the respondent/Workman was appointed on temporary basis and, therefore, the termination of the services of the respondent/Workman was not in accordance with law. He submits that the Award was passed by the Labour Court by stressing that the work of drivers was available with the petitioner/University, which should have been offered to the respondent/Workman as provided u/s 25H of the Act. Since the same had not been provided to the respondent/Workman nor any offer had been made to that effect, it violates Section 25H of the Act. Thus, the Award passed by the Labour Court is fully justified, which does not call for any interference by this Court.
Counsel for the petitioner at this stage refers to Rule 4 (c) of the Rules, reliance on which has been placed by counsel for respondent/Workman to submit that the Rules do not apply to persons appointed on contract basis and their services would be covered as per terms of the contract. He, accordingly, submits that the reliance placed by counsel for the respondent/Workman on the said Rules, is wholly misplaced.
I have heard counsel for the parties and have gone through the records of the case.
The facts as asserted by counsel for the petitioner/University is not in dispute that the respondent/Workman was engaged for a period of 89 days. The terms and conditions specified therein would cover the terms of appointment of the respondent/Workman, as is apparent from Rule 4 (c) of Rules, which reads as follow:
Extent of Application.
xxxxx xxxxx xxxxx xxxxx (c) Persons appointed on contract who will be governed by the terms of contract;
xxxxx xxxxx xxxxx xxxxx
In the light of above Rule, the terms of appointment of the respondent/Workman was purely contractual on 89 days basis to start with, which provided that his engagement could be terminated earlier at any time without any notice and on the expiry of the period of contract, the services would automatically stand terminated. It is not in dispute that the respondent/Workman joined on 03.07.2001 and continued upto 30.09.2001 (78 days) in compliance and in accordance with the appointment letter dated 03.07.2001 (Anenxure-P-1). Thereafter, the respondent/Workman worked with the petitioner/University from 26.11.2001 to 22.02.2002 (78 days), then from 18.03.2002 to 16.04.2002 (27 days), and then from 17.04.2003 to 14.07.2003 (78 days). It is not in dispute that all these appointments were purely on contract basis. A finding had been returned by the Labour Court in the impugned Award that the respondent/workman had not completed 240 days in service in the 12 preceding months from the date of his termination. That finding is not in dispute in the present writ petition. As regards non compliance of Section 25-G of the Act is concerned, again a finding had been returned by the Labour Court that the same had been followed in the light of the fact that after the termination of the services of the respondent/Workman, two posts on regular basis for appointment as Drivers were advertised, the respondent/Workman also participated in the said selection process, but was not selected. Naresh Kumar and Rajesh Rathi were appointed as Drivers. Having participated in the selection process and failed in the selection, the provisions as far as Section 25-G are concerned, are stood fully complied with. This aspect is also not disputed in the present writ petition.
The only question, which requires to be considered in the present case is whether appointment of Parminder, Jasminder, and Jai Bhagwan, who were Class-IV employees (peons) working with the petitioner/University, who had been assigned duties of drivers on vehicles as purely temporary arrangement by the Vice Chancellor of the petitioner/University, would amount to their appointments as drivers entitling the respondent/Workman to contend that Section 25H of the Act stands violated.
It is not in dispute that as per Rule 4(c) of the Maharishi Dayanand University Service and Conduct Rules for Non Teaching Employees are not applicable to the persons appointed on contract basis as their services would be covered by the terms of contract, therefore, no benefit can be claimed by the respondent/Workman of the said statutory Rules, which are not applicable to the services of the respondent/Workman. The contention of counsel for respondent/Workman in this regard, therefore, cannot be accepted. As regard the temporary arrangement made by the Vice Chancellor by assigning duties to the peons of drivers cannot be said to be an appointment on the post. It is a temporary arrangement made by the Vice Chancellor as a purely stop gap arrangement, which does not confer any right on the said persons to hold the posts. Since, no appointments had been made on the posts of drivers by the petitioner/University, the contention of counsel for the respondent/Workman that Section 25H of the Act has been violated, cannot be sustained. The Award, passed by the Labour Court, therefore, cannot be held to be in accordance with law, and accordingly, deserves to be set aside.
In view of the above, the present writ petition is allowed. The impugned Award dated 27.08.2009 (Annexure-P-4) passed by the Labour Court, Rohtak, is hereby set aside.