Full Judgment
CWP No.17089 of 2013(O&M) -1- *** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.17089 of 2013 (O&M). Date of decision:
10. 02.2014 Naresh Kumar ...Petitioner Vs. Zonal Manager, Punjab and Sindh Bank and others ...Respondents CORAM: HON’BLE MR.JUSTICE GURMEET SINGH SANDHAWALIA ***** Present: Mr. Pankaj Gupta, Advocate for the petitioner. Mr. R.N.Lohan, Advocate for respondents No.1 and 2. **** G.S.SANDHAWALIA, J.
Civil Misc. No.1475 of 2014. The application for placing on record the replication to the written statement filed on behalf of respondents bank is allowed and the replication to the written statement is taken on record. Office to tag the same at appropriate place. CWP No.17089 of 2013 1. The challenge in the present petition is to the award dated 1.5.2013 (Annexure P/5) passed by the Central Government Industrial Tribunal-cum-Labour Court-II, Chandigarh whereby the petitioner- workman has been denied the relief by holding that the termination of his services comes under Section 2(oo)(bb) of the Industrial Disputes Act, 1947 (hereinafter referred to as “the Act”.) and would not amount to retrenchment. Further finding was that the management was not liable Kumar Pardeep 2014.03.01 12:48 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CWP No.17089 of 2013(O&M) -2- *** to comply with the provisions of Section 25-F of the Act.
2. Counsel for the petitioner submitted that the workman was appointed on 29.4.1993 as a Peon on temporary basis by the respondent-bank and subsequently a panel of persons who were appointed on temporary basis was prepared by the bank and the name of the petitioner was included in the said panel and his name figured at Sr. No.3. The peons who had been appointed in the Amritsar Zone as temporary peons and were working for a period 5 years to 15 years had filed Civil Writ Petition No.834 of 2002-Jagjit Singh and others Vs. Punjab and Sind Bank with a prayer to direct the respondent bank to regularize their services in this Court and this Court vide order dated 14.1.2002 disposed of the aforesaid writ petition directing the respondent-bank to decide the representation dated 21.11.2001. In view of the said direction, the bank started terminating the services of the temporary peons working in various branches in violation of the mandatory provisions of the Act and the respondent-bank terminated the services of the petitioner-workman on 22.4.2002 without giving any notice and retrenchment compensation.
3. The petitioner-workman approached this Court along with seven others similarly situated persons by filing Civil Writ Petition No.9951 of 2002 Balbir Singh and others Vs. Punjab and Sind Bank and others with a prayer for quashing of the termination order and for reinstatement with all consequential benefits. The said writ petition was admitted and come up for hearing on 4.11.2008 and the petitioners were relegated to their alternative remedy. As such the matter was referred to Kumar Pardeep 2014.03.01 12:48 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CWP No.17089 of 2013(O&M) -3- *** the Labour Court wherein the petitioner-workman filed his claim petition and also filed an application for summoning the attendance register and salary register from the respondent bank. However, reply was not filed to the application and the Labour Court allowed the application vide order dated 7.6.2012. However, in spite of the fact that the petitioner had worked for a period of 9 years the Labour Court rejected the reference on the ground that the petitioner had been engaged for 60 days subject to the condition that his services would be of temporary nature and the appointment letter showed that the appointment was not continuous and there were gaps of a month or more periods each time between various appointment letters. It was held that the workman failed to show that action of the respondents was malafide and amounted to unfair labour practice. Hence, the present writ petition.
4. Counsel for the petitioner has accordingly submitted that the same Tribunal in identical cases allowed reinstatement vide award dated 13.2.2013 (Annexure P/6) 1-1/2 months prior to the impugned award in question and vide award dated 28.6.2013 (Annexure P/7) subsequently also allowed the reinstatement to other similarly situated peons and in both the cases benefit of reinstatement had been given with continuity of service but without back wages. Reference has also been made to bunch of 21 writ petitions decided by this Court in Civil Writ Petition No.18154 of 2007 Baljit Singh Vs. The Presiding Officer and others decided on 26.5.2010 wherein similar relief had been granted by this Court. Accordingly, it is contended that the petitioner has been discriminated against without any reason. Reference has also been Kumar Pardeep 2014.03.01 12:48 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CWP No.17089 of 2013(O&M) -4- *** made to the decision dated 28.2.2012 of the Civil Writ Petition No.19950 of 2010 Punjab and Singh Bank Vs. Jaspal Singh and another wherein the writ petition filed by the bank was disposed of in terms of Baljit Singh's case (supra) and the decision of Civil Writ Petition No.23373 of 2010 Manager, Punjab & Sind Bank Vs. Charanjit Singh and another decided on 2.6.2011 which was also disposed of in the same terms.
5. In the written statement filed by the respondent-bank, it was pleaded that the Tribunal was justified and no evidence was led by the petitioner-workman to prove that he had rendered continuos service of 240 days. It was further stated that it was not a regular appointment and was not as per the rules and was a back door entry. Case of the petitioner fell under the provisions of Section 2(oo)(bb) of the Act and his appointment came to an end by efflux of time. The petitioner could not claim similarity with other persons which was not his case before the Tribunal and he cannot be allowed to raise new pleas.
6. Vide order dated 13.9.2013, this Court had granted time to the counsel for the bank to file reply and to get instructions whether any action has been taken on the representation submitted by the petitioner or not. Thereafter, on 30.10.2013, the bank took last opportunity to get instructions whether the petitioner can be permitted to rejoin service against one of many posts which were lying vacant as he was ready to forego back wages.
7. When case was taken up today, counsel for the bank submitted that he has no instructions in favour of the workman and Kumar Pardeep 2014.03.01 12:48 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CWP No.17089 of 2013(O&M) -5- *** accordingly case may be decided on merits.
8. From the perusal of the case file it is apparent that the same Tribunal headed by the same Presiding Officer in identical circumstances vide award dated 13.2.2013 (Annexure P/6) came to the conclusion that the appointment letters which have been issued by the bank of 30/60 days were to give breaks in the service of workmen which were of artificial nature and accordingly, the nature of job was continuous and the length of service also showed the same and therefore, the plea of contractual appointments could not be accepted and the termination of services was retrenchment and was not covered by Clause (bb) of Section 2(oo) of the Act. Accordingly, seven workmen were directed to be put back on duty without giving them the benefit of back wages.
9. In similar circumstances, after the present impugned award was passed, two more workmen were given the benefit of reinstatement while placing reliance upon the decision dated 26.5.2010 (Annexure P/8) in Baljit Singh's case (supra) vide award dated 28.6.2013 (Annexure P-7). The petitioner has specifically pleaded the said fact and the only defence of the respondent-bank is that this was not the case before the Tribunal. As noticed above, the order was passed on 13.2.2013 in seven cases whereas award in question was passed on 1.5.2013, therefore, it could not have been the case of the petitioner in his claim statement which was filed much earlier on 25.1.2010. Similarly, the second award was passed on 28.6.2013 which was after the present award, therefore, could not have been relied upon before the Labour Court. The justification sought to be given is absolutely without any Kumar Pardeep 2014.03.01 12:48 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CWP No.17089 of 2013(O&M) -6- *** basis and there is apparent contradiction in the orders of the Labour Court. The petitioner has been wrongly denied the said relief which has been granted to other similarly situated persons placed in identical situation.
10. Accordingly, this Court is of the opinion that the award in question cannot be held to be justified and the writ petition is allowed and the impugned award dated 1.5.2013 (Annexure P/5) is quashed. The petitioner-workman is directed to be taken back in service by the bank within one month from the date of receipt of a certified copy of this order. The workman will also be entitled for the benefit of continuity of service but will not be entitled for any back wages. 10.02.2014 (G.S.SANDHAWALIA) Pka JUDGE Kumar Pardeep 2014.03.01 12:48 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh