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Judgment
Jyotsna Rewal Dua, J
CMP(M) No. 12 of 2021
For the reasons stated in the application, the same is allowed and the delay of 24 days in filing the appeal is condoned. The application stands
disposed of.
L.P.A. No. 61 of 2021
Claim petition filed by the petitioner was dismissed by the learned Labour Court. His writ petition, challenging the award of learned Labour Court, also
stands dismissed. Petitioner is taking second chance by way of this appeal.
2(i) Following reference was to be adjudicated by the learned Labour Court :-
“Whether the termination of services as Driver of Shri Vijay Kumar ,S/o Shri Karam Chand, R/o Village and P.O. Nangal Jariyalan, Tehsil Amb,
District Una, H.P. by the Principal, D.A.V. Senior Secondary Public School, Ambota, Tehsil Amb, District Una, H.P. w.e.f. 09.07.2011 without
complying with the provisions of the Industrial Disputes Act, 1947, is legal and justified ? If not, to what amount of back wages, past service benefits,
seniority and compensation the above worker is entitled to from the above employer ?â€
2(ii) Petitioner in his claim petition stated that he worked as a driver in the respondent-school w.e.f. 03.05.2010 to 08.07.2011. The school remained
closed w.e.f. 09.07.2011 to 14.08.2011 on account of summer vacations. Petitioner was not allowed to work from 14.08.2011. He was informed that
his services stood terminated. Petitioner’s case was that he had continuously worked for more than 240 days in a block of 12 calendar months
preceding date of his retrenchment. Neither any show-cause notice nor any charge-sheet was ever issued to him. His work and conduct was
satisfactory. The petitioner alleged violation of Section 25-F of the Industrial Disputes Act (for short the Act). He alleged that after his termination, the
respondent-school had issued an advertisement on 01.08.2011 in the newspapers for appointing driver on contract basis without giving him an
opportunity of re-employment. This, he asserted, was in violation of Section 25-H of the Act. Alleging unfair labour practices by the respondent, the
petitioner prayed for his reinstatement with all consequential benefits.
2(iii) The gist of defence was that pursuant to an interview conducted by the respondent on 02.05.2010, wherein petitioner also participated, he was
appointed as a driver on temporary basis w.e.f. 06.05.2010 for a period of 66 days. The petitioner was relieved on 10.07.2010. The relieving order
was signed by the petitioner. A recruitment notice was issued by the respondent-school on 10.08.2010 whereunder interviews were fixed for
engagement of driver on temporary basis for the period 13.08.2010 to 31.03.2011. Petitioner appeared in the interview. He was selected and recruited
for a period of 231 days i.e. till 31.03.2011. Petitioner was relieved on 31.03.2011. The relieving order bears his signature. Services of the petitioner
were again engaged for a period of 98 days from 02.04.2011 to 08.07.2011. The appointment letter was issued to him containing specific terms and
conditions, which were accepted by him. The appointment was on contractual basis and the contractual period ended on 08.07.2011. Subsequently, the
respondent-school issued another advertisement on 01.08.2011 for filling the post of driver on contractual basis. Petitioner neither applied for the post
nor he appeared in the interview.
2(iv) Learned Labour Court, after going through the pleadings, evidence and hearing the parties, did not find favour with the claimant and dismissed
the claim petition on 29.08.2013. Petitioner’s challenge to the award passed by the learned Labour Court has also been rejected by the learned
Single Judge on 11.12.2019. Aggrieved, the petitioner has preferred the instant Letters Patent Appeal.
Learned counsel for the petitioner argued that the oral and documentary evidence adduced by the petitioner was not properly appreciated by the
learned Court. Petitioner was not aware about the terms and conditions of his joining at the time of his engagement. The documents were prepared by
the respondent-school subsequent to his joining. Ex. R-4 was a fabricated document. The printed contents of this document state that period of
petitioner’s appointment was upto 31.03.2012. The contents have been tampered in handwriting and the period has been converted to 08.07.2011.
Learned counsel also urged that learned Labour Court, instead of answering the reference on terms referred to it, had decided the reference on
different issues.
4(i) In (2015) 4 SCC 270, titled Pepsico India Holding Private Limited Vs. Krishna Kant Pandey, Hon’ble apex Court observed as under with
regard to scope of interference under Article 226 of the Constitution of India with finding of facts recorded by the Industrial Tribunal :-
“16. In Indian Overseas Bank vs. I.O.B. Staff Canteen Workers' Union and Another, (2000) 4 SCC 245, this Court considered a similar question
with regard to the power of the High Court under Article 226 against the findings recorded by the Industrial Tribunal. Reversing the decision of the
Single Judge and restoring the fact finding decision of the Tribunal this, Court held :-
The learned Single Judge seems to have undertaken an exercise, impermissible for him in exercising writ jurisdiction, by liberally reappreciating
the evidence and drawing conclusions of his own on pure questions of fact, unmindful, though aware fully, that he is not exercising any appellate
jurisdiction over the awards passed by a tribunal, presided over by a judicial officer. The findings of fact recorded by a fact-finding authority duly
constituted for the purpose and which ordinarily should be considered to have become final, cannot be disturbed for the mere reason of having been
based on materials or evidence not sufficient or credible in the opinion of the writ court to warrant those findings, at any rate, as long as they are
based upon some material which are relevant for the purpose or even on the ground that there is yet another view which can reasonably and possibly
be taken. The Division Bench was not only justified but well merited in its criticism of the order of the learned Single Judge and in ordering restoration
of the award of the Tribunal. On being taken through the findings of the Industrial Tribunal as well as the order of the learned Single Judge and the
judgment of the Division Bench, we are of the view that the Industrial Tribunal had overwhelming materials which constituted ample and sufficient
basis for recording its findings, as it did, and the manner of consideration undertaken, the objectivity of approach adopted and reasonableness of
findings recorded seem to be unexceptionable. The only course, therefore, open to the writ Judge was to find out the satisfaction or otherwise of the
relevant criteria laid down by this Court, before sustaining the claim of the canteen workmen, on the facts found and recorded by the fact-finding
authority and not embark upon an exercise of reassessing the evidence and arriving at findings of one's own, altogether giving a complete go-by even
to the facts specifically found by the Tribunal below.
The order of the Tribunal would show that the respondent-workman accepted different works assigned to him which were purely of supervisory
and managerial nature. The details of 15 managerial/supervisory works assigned to the respondent have been analyzed by the Tribunal which finally
came to the conclusion that the respondent is not a workman within the meaning of Section 2(z) of the Act.
In exercise of its writ jurisdiction, the High Court proceeded initially on the basis that the appellant had entered into service on the post of
Operator/Technician Grade-III, which is a technical post and from there he was promoted to different posts including Fleet Executive. The High Court
committed grave error in holding that although he is not covered under the definition of workman as defined under Section 2(z) of the Act he shall be
classified as a workman. The High Court further exceeded its jurisdiction in advising the Government to make an amendment in Section 2(z) of the
Act and to exclude some clauses. The order passed by the High Court cannot be sustained in law.â€
4(ii) We have heard learned counsel for the petitioner and gone through the record. The record gives out following picture :-
(a) Pursuant to an advertisement issued by the respondent-school, the petitioner appeared in the interviews for the post of driver on 02.05.2010. He
was selected and verbally asked to join the duty. His engagement was for 66 days. The petitioner joined and on completion of the term was relieved
on 10.07.2010. The petitioner signed his relieving order.
(b) Recruitment notice was circulated by the respondent-school on 10.08.2010. Interviews, under this notice, for the post of driver on temporary basis
for the period 13.08.2010 to 31.03.2011 were conducted. The petitioner appeared in the interview and was recruited on temporary basis for a period
of 231 days. He was relieved on 31.03.2011 after completing the tenure. The relieving order bears his signature.
(c) Services of the petitioner were again engaged for a period of 98 days i.e. from 02.04.2011 to 08.07.2011. The appointment letter was issued in his
favour. The contractual appointment came to an end on 08.07.2011. The school was also closed thereafter owing to summer vacations.
(d) On 01.08.2011, the respondent -school published an advertisement for filling the post of driver on contract basis.
The interviews, as per advertisement notice, were conducted on 04.08.2011. The petitioner did not apply for the post.
4(iii) Learned Labour Court has observed that while appearing in the witness box, the petitioner admitted that he was relieved from his duties on
31.03.2011 and that relieving order Ex. R-3 was signed by him. He also admitted that appointment letter Ex. R-4 was issued to him by the respondent-
school, though he stated that it was handed over to him later on. The petitioner also did not deny specifically that respondent-school had issued an
advertisement on 01.08.2011 regarding filling the post of driver on contract basis and that interviews in furtherance thereof were conducted on
04.08.2011. He admitted that he did not participate in the fresh interview. The mandays chart Ex. RW-1/B produced by the respondent-school in
furtherance of its stand was not disputed by the petitioner.
4(iv) From the above, it becomes apparent that the petitioner had intermittently worked as a driver with the respondent-school on contractual basis.
The respondent-school used to publish advertisements/recruitment notices for holding interviews for engaging drivers on contractual basis for specific
periods. The petitioner used to participate in the interviews. At times he was selected and on completion of contractual period, the petitioner was
relieved from his duty by the respondent-school. The petitioner did not participate in the last interviews in question conducted by the respondent-school
on 04.08.2011 pursuant to an advertisement dated 01.08.2011. In the facts of the case, it cannot be said that instant was a case of illegal termination
of petitioner’s service. The petitioner was only a contractual employee, who served the respondent-school for different spells. The term of
contractual appointment of the petitioner as per appointment letter Ex. R-4 had come to an end on 8.07.2011. He did not participate in the fresh
selection process. Non-renewal of the term of contractual engagement in the facts of the case, cannot bring petitioner’s within the ambit of the
word ‘retrenchment’ under the provisions of the Act. With respect to tampering in the record alleged by the petitioner, learned Single Judge has
observed “On a pointed query of the Court as to whether the petitioner had raked up the issue of forgery of his signatures before any competent
authority, the answer was in the negative.â€
We find no reason to take a contrary view. The award does not suffer from any perversity and has been passed as per terms of reference. There is
no error in the judgment passed by learned Single Judge affirming the award passed by learned Labour Court. This appeal, therefore, being devoid of
merit is dismissed. Pending applications, if any, also stand disposed of.