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2005 Supreme(P&H) 1257
PUNJAB & HARYANA HIGH COURT
J.S.Khehar and S.N.Aggarwal JJ.
Punjab Scheduled Castes Land Development And Finance Corporation
Versus
Labour Court, U.T.Chandigarh
Civil Writ Petition No. 19192 of 2005,
Decided On : DECEMBER 9, 2005
The main legal point established in the judgment is that the termination of services must comply with the provisions of the Industrial Disputes Act, including the classification of retrenchment under Section 2(oo)(bb) and the mandatory provisions of Section 25F.
Headnote:
Industrial Disputes Act - Termination of Services - Section 2A, Section 2(oo)(bb), Section 25F - The court discussed the termination of services of the respondent-workman and its classification as retrenchment under Section 2(oo)(bb) of the Industrial Disputes Act. The court also considered the relevance of sanction for the post occupied by the respondent-workman and the applicability of Section 25F of the Act. The court found that the termination of services was in violation of the mandatory provisions of the Act.
Fact of the Case:
The petitioner-management terminated the services of the respondent-workman, who was initially appointed as a water carrier and later reinstated. The respondent-workman issued a demand notice under Section 2A of the Industrial Disputes Act, leading to the dispute being referred to the Labour Court.
Finding of the Court:
The court found that the termination of the respondent-workman's services constituted retrenchment under Section 2(oo)(bb) of the Act and was in violation of the mandatory provisions of Section 25F.
Issues: The issues included the classification of the termination as retrenchment, the relevance of post sanction, and the applicability of Section 25F of the Industrial Disputes Act.
Ratio Decidendi: The court held that the termination constituted retrenchment as per Section 2(oo)(bb) and was in violation of the mandatory provisions of Section 25F, irrespective of the post sanction.
Final Decision: The court upheld the award of the Labour Court, ordering the reinstatement of the respondent workman with continuity in service and 50 percent back wages.
J.S.Khehar, J.
1. The petitioner-management engaged the respondent- workman Jagtar Singh as a water carrier vide an order dated 25.4.1994. The aforesaid order is being extracted hereunder for facility of reference:
Sh. Jagtar Singh s/o Sh. Ajit Singh c/o Sh. Lachman Singh, Special Assistant, Special Cell, Welfare-I, Mini Secretariat, Chandigarh is hereby appointed in the Head Office of Corporation at Chandigarh as Water Carrier on the dally wages rates fixed by the D.C. Chandigarh. His services can be terminated at any time without any prior notice.
His services were dispensed with by an order dated 24.1.1995 as "no longer required." It is, therefore, that the petitioner was relieved from service. He was again appointed as a water carrier on 7.2.1996 and he continued to discharge his duties till 30.6.1997, when his services were again dispensed with in terms of his appointment letter (dated 12.7.1997), which incorporated the condition that "his services can be terminated at any time without any prior notice." Dissatisfied with the action of the petitioner-management in having terminating his services, the respondent workman issued a demand notice under Section 2A of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) dated 6.1.2000. On the failure of the conciliation proceedings the dispute raised by the respondent workman was referred for adjudication to the Presiding Officer, Labour Court, U.T. Chandigarh (hereinafter referred to as the Labour Court). The Labour Court by its award dated 22.8.2005 answered the reference in favour of the respondent-workman. While setting aside the order of his termination, the Labour Court ordered the reinstatement of the respondent workman with continuity in service and 50 percent back wages, with effect from the date of issuance of the demand notice i.e. 6.1.2000. Through the instant writ petition, the petitioner management has impugned the award of the Labour Court dated 22.8.2005.
2. The first contention of the learned Counsel for the petitioner is that the termination of the services of the respondent-workman, in the facts and circumstances of the present case, cannot be termed as retrenchment within the meaning of the provisions of the Act. In this behalf, reliance has been placed on Section 2(oo)(bb) of the Act, in order to contend that the letter of appointment of the respondent-workman clearly envisaged that "his services can be terminated at any time without any prior notice". Accordingly it is submitted that the services of the respondent-workman having been dispensed with in terms of the conditions of his appointment letter, his termination cannot be considered to be an act of retrenchment within the meaning of the provisions of the Act. It is not possible for us to accept the instant contention of the learned Counsel for the petitioner. The broad parameters to be specified on a plea of the nature advanced by the learned Counsel for the petitioner have been delineated by the Apex Court in S.M. Nilajkar and Ors. v. Telecom District Manager Karnataka 2003 (2) SCT 1013, wherein the Apex Court held as under: The termination of service of workman engaged in a scheme or project may not amount to retrenchment within the meaning of Sub-clause (bb) subject to the following conditions being satisfied:
(i) that the workman was employed in a project or scheme of temporary duration.
(ii) The employment was on a contract, and not as a daily-wager simpliciter, which provided inter alia that the employment shall come to an end and on the expiry of the scheme or project; and
(iii) the employment came to an end simultaneously with the termination of the scheme or project and consistently with the terms of the contract.
(iv) The workman ought to have been apprised or made aware of the above said terms by the employer at the commencement of employment.
The engagement of a workman as a daily-wager does not by itself amount putting the workman on notice that he was being engag
