CWP No.2726 of 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.2726 of 2011 (O&M) Date of Decision:
18. 02.2013 Sunil Kumar ..... Petitioner Versus Presiding Officer, Industrial Tribunal- cum-Labour Court, Ambala and others ..... Respondents CORAM:- HON'BLE MR. JUSTICE RAJIV NARAIN RAINA Present: Mr. Sandeep Panwar, Advocate, for the petitioner. Mr. A.S. Virk, Advocate, for respondent Nos.2 and 3.
1. To be referred to the Reporters or not?.
2. Whether the judgment should be reported in the Digest?. RAJIV NARAIN RAINA, J.CM No.2764 of 2013 CM is allowed as prayed for and the additional affidavit together with Annexures R2/1 and R2/2 is taken on record. CWP No.2726 of 2011 The challenge in this petition is to the award dated 09.09.2010 (P-3) passed by the Presiding Officer, Labour Court, Ambala. The reference has been dismissed holding that the workman is not entitled to any relief. The Labour Court has held that the petitioner-workman was employed on CWP No.2726 of 2011 (O&M) -2- contract basis for a fixed salary with specific terms and conditions in the offer of appointment that his services could be dispensed with without any notice at any time even before the expiry of the period of contract or if work for which the petitioner was engaged is no longer in existence, or if the work and conduct was not found satisfactory by the University. It was a case covered by the exception to retrenchment under Section 2 (oo) (bb) of the Industrial Disputes Act, 1947 (for short “the Act”.). The brief facts are that the petitioner was appointed as a Securityman on 17.06.2004 for a period of 89 days on contract basis. Extensions were granted from time to time. The last extension was granted w.e.f. 21.06.2007 to 31.07.2007. The services of the petitioner were terminated on 14.08.2007 without complying with the provisions of Section 25-F of the Act. The reason for termination was that the petitioner without any intimation remained absent from 15.08.2007 to 21.08.2007, i.e. for a period of seven days. It appears from record that the extensions were granted without breaks. In defence of the reference, the respondent-Kurukshetra University relied on its notification dated 04.02.2002 which enables the University to disengage a contractual employee who remains absent without intimation and fails to report on duty for seven consecutive days, such person shall be deemed to be relieved. Therefore, in terms of the notification dated 04.02.2002 read with Clause 5 of the appointment letter, the services of the petitioner were dispensed with. There was no need to comply with the provisions of the Act. It is admitted that no show cause notice, charge-sheet or inquiry was held for wilful absence for seven days. Action was taken on a CWP No.2726 of 2011 (O&M) -3- report submitted by the Security Department with respect to absence for a week. It is one thing to dispense with services by resorting to standing orders/executive instructions/rules for absence from duty for specified days but it is a different matter when the disengagement is brought under judicial scrutiny of a Labour Court, the action would still have to be justified on the touchstone of law. Reasons for absence would become relevant factor when a request is made for reinstatement then the question of grant of permission to the workman to justify absence may have to be considered. The argument before the Labour Court that the appointment of the workman was granted on an application made by without public advertisement has prevailed before the Labour Court. It has been held that the initial appointment on contract basis was violative of Articles 14 and 16 of the Constitution of India. The testimony of the workman appearing as his own witness has also prevailed with the Labour Court inasmuch as he admitted that he was appointed without advertisement calling for applications for filling up the post of Securityman; no interview was held not any Selection Committee was appointed to make the selection and that he had applied for the post on his own. The office order dated 17.06.2004 (P-1) engaging the petitioner as Securityman on contract basis was issued by the Vice-Chancellor, Kurukshetra University. The first period was for 89 days. Successive extensions were granted and the petitioner worked from 17.06.2004 till 14.08.2007 for a period of three years and two months, which cannot be said short or brief. In response to a RTI request made by the petitioner, the University responded through Annexure P-4 dated 10.03.2011 that the CWP No.2726 of 2011 (O&M) -4- University had not engaged any Securityman on contract basis after the termination of the petitioner. A list of 33 persons, of whom the services of six stand terminated was supplied to the petitioner with the remarks that 33 persons were appointed as Securityman after the appointment of the petitioner and are still working on the post. These Securitymen were also appointed on contractual basis under the same dispensation of the Vice Chancellor. The foremost question that arises in this case as to the effect of seven days of absence without intimation furnishing opportunity to the management to resort to automatic termination by concluding wilful abandonment of service. In case, the only reason for termination was wilful absence for seven days then on return, opportunity ought to have been granted an opportunity to the workman to explain his absence and if it was not found satisfactory, then action could have been taken. Though a discharge clause in terms of the notification dated 04.02.2002 may give a right to the employer to invoke deeming provisions to remove him from the service yet that does not mean or obviate entering upon the reasons which led to the absence. It was that aspect which should have been examined to bring about fairness in action. When the management talks of a deeming provision founded on absence without intimation what is really implied is that the workman has abandoned service and seven days absence is sufficient to reach that conclusion. The core issue therefore to my mind was whether the petitioner has intention to abandon service, which is a pure question of fact. The notification dated 04.02.2002 has been pressed in service before this Court in pursuance of an interim order passed on CWP No.2726 of 2011 (O&M) -5- 08.08.2012 which reads as under:- “Learned counsel for the respondent-management seeks time to produce the notification in terms of which due to absence from duty the services of the petitioner were dispensed with and further to seek information with regard to the persons as mentioned in letter (P-4), who are allegedly working as security men from 2004 onwards. Adjourned to 30.11.2012.”
. Eight issues were framed by the Labour Court. No issue has been framed with respect to abandonment of service or of the effect of the notification dated 04.02.2002 to a fact situation. Though the Labour Court was not enjoined by law to frame issues since the issue is remitted by the appropriate Government through the reference yet if it thinks fit to frame issues then it must frame issues which touch upon the heart of the matter. Learned counsel for the University would contend that the issue of abandonment and automatic termination are covered by the issue nos. 1, 6 and 7. It is, therefore, necessary to reproduce the eight issues framed:- “1.3. Whether the termination of services of the workman is liable to be set aside being wrong, illegal, null and void etc. and the workman is entitled to be reinstated in service with full back wages and all the benefits including the continuity of service?. OPW.
2. Whether the workman has no locus standi to file the present claim statement?. OPM 3.Whether the claim statement is not maintainable in the present form?. OPM 4.Whether there is no relationship of master and servant between the employer and employee?. OPM, 5. Whether the petitioner is estopped from filing the claim statement by his own act and conduct?. OPM.
6. Whether the petitioner-workman has concealed the true and material facts from this court?. If so its effect?. OPM.
7. Whether the workman has no cause of action to file the present claim statement?. OPM 8.Relief.”
. CWP No.2726 of 2011 (O&M) -6- It deserves examination whether in a case where an employer acts on a provision which confers power to invoke deemed removal or discharge for absence, whether the provisions of Section 25-F of the Act are to be complied with or not. In such a situation, it may be possible to contend that when automatic termination is resorted to for absence, there may be no need to comply with Section 25-F of the Act on the premise that seven days absence is sufficient to conclude abandonment. If it is a case of abandonment from service then intention to relinquish the job would come to the forefront. Abandonment is a mixed question of law and fact. It would require evidence to come to a conclusion either way. The workman would then deserve to be given an opportunity to explain his absence. In case that is found unsatisfactory then for a contractual employee engaged on 89 days basis, action may be taken for discharge simpliciter, or may be a preliminary fact finding inquiry could be resorted to. The case would then, to my mind, hang in limbo swinging from misconduct to simpliciter discharge. For one, an enquiry is necessary, for the other, compliance of Section 25-F of the Act since discharge would amount to retrenchment. These issues arose before the Labour Court which failed to get in grips with the case resulting in failure of justice and an award which is unsustainable. For another reason, the award is unsustainable. A finding has been returned that the petitioner was a back door entry to service but was shown the front exit door after three years and two months of service albeit contractual. We cannot also ignore the fact that over 20 Securitymen employed at about the time of the petitioner are still in service and who had secured employment under orders of the Vice-Chancellor. It would seem unfair in the circumstances that for CWP No.2726 of 2011 (O&M) -7- seven days of absence the result should be so serious and far reaching. Insofar as the repeated extensions given for 89 days basis are concerned, I would only say that that may fall in the vice of unfair labour practice aimed mainly to avoid the rigours of the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 as explained by the Division Bench of this Court in Bhikku Ram vs. The Presiding Officer, Industrial Tribunal- cum-Labour Court, Rohtak, 1998(1) RSJ 703.Such a case would also not fall in exception (bb) of Section 2 (oo) of the Act. I, therefore, hold that the impugned award is not sustainable for the reason that the real issues arising in the case have not been considered and dealt with and the entire matter has been brushed aside on the admission of the workman in his evidence that he come to the job on an application made by him without public advertisement and without interview by a Selection Committee. The fact of the matter is that he came to hold the contractual job under the orders of the Vice-Chancellor himself and the University cannot so easily disclaim that connection. It is not the case of the University that the Vice-Chancellor made illegal appointments. For the foregoing reasons, the impugned award dated 09.09.2010 (P-3) is set aside. The petition is partly allowed and a direction is issued to the respondents to reinstate the petitioner as a Securityman on contract basis and on the same terms and conditions obtaining on the date of termination. In the special circumstances of this case, liberty is granted to the University to take a fresh decision with respect to seven days of absence whether it was wilful or not by passing a fresh order in accordance with law. CWP No.2726 of 2011 (O&M) -8- The issue of back wages consequently is left to the University depending on the result of the fresh exercise. Liberty is granted to the petitioner to take recourse to his remedies against the fresh decision in case they are adverse to him. (RAJIV NARAIN RAINA) JUDGE 18 02.2013 manju