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J&K High Court · body

2010 DIGILAW 179 (JK)

Aga Syed Mustafa v. State Of J. &K.

2010-04-06

MOHAMMAD YAQOOB MIR

body2010
1. Pursuant to order dated 11.10.1982 twenty five persons including the petitioner came to be appointed on contract basis as Assistant Craftsman on consolidated amount of Rs. 500/- inclusive of allowances per month, for a period of 1= year. The petitioner was posted in the training centre Ali Kadal, where he continued to work up to 23rd of July 1983. As on the said date he was transferred to the HTC Watrihare. The said centre after the completion of the training programme was closed on 28th of October, 1983, as a result thereof the petitioner alongwith other persons working there reported to the head office but then remained absent, so was not re-employed, filed petition before the Assistant Labour Commissioner (Conciliation Officer) District Srinagar, who observed that the services of the petitioner should not have been terminated arbitrarily and capriciously, when the petitioner had worked for a period of two hundred and forty (240) days. Petitioner as such had attained the rights under Sections 25B and 25F of the Industrial Disputes Act. He has also observed that no procedure was adopted by the respondents, while dispensing with the services of the petitioner. Finally Conciliation Officer formulated following two issues and recommended the same for adjudication. i) Whether the respondent-Management of the concerned Corporation was within their rights to arbitrarily terminate the petitioner from his services? ii) If so whether petitioner is entitled to reinstatement alongwith back wages and any other relief in this behalf? 2. The competent authority (the Government) the Government made reference as warranted under Clause-C Sub Section 1 of Section 10 of the Industrial Disputes Act 1947, so as to adjudicate upon the following issues : 1. Whether the action of the aforesaid Management in terminating the services of the aforesaid employee in justified? 2. If not to what relief the said employee is entitled to ? The Tribunal on receiving the reference formulated issue No. 1 as under: Whether the action of the Management in terminating the services of the petitioner is justified? 3. The stance of the respondents before the Tribunal was that the appointment of the petitioner was purely temporary for the specified period of 18 months only. The petitioner worked up to December 1983 and thereafter absconded from the office and failed to move any representation till 1988. The petitioner did not explain the reason for his absence from the duties. The stance of the respondents before the Tribunal was that the appointment of the petitioner was purely temporary for the specified period of 18 months only. The petitioner worked up to December 1983 and thereafter absconded from the office and failed to move any representation till 1988. The petitioner did not explain the reason for his absence from the duties. The Tribunal after considering the rival submissions referred the beginning portion of the order of appointment and to the conditions No. 4 and 7 incorporated therein. While doing so has highlighted, that the order of appointment was temporary in nature, only for a period of 1-1/2 year and in terms of condition No. 4 the said appointment was terminable at any time, even before expiry of the said 1= year without any formal notice and without assigning any reason thereof, when in terms of condition No. 7 , the petitioner has executed the agreement containing the stipulations as incorporated in the order of appointment and added that in the conditions incorporated in the order of appointment, the maximum limit is shown as 1= year terminable at any time, even before the completion of the said period. There is no condition which would provide for extension of such appointment beyond 18 months, therefore, at the expiry of 18 months the contract of appointment came to an end. In this connection reliance has been placed on the Judgment reported in AIR 1994 SC 1343. 4. Then the Learned Tribunal has referred to Section 25-H of the Act, which provides that when a workman is retrenched and the employer proposes to take into his employment any person, he shall first give an opportunity to the retrenched workman, who in the case of the re-employment shall have preference. The Learned Tribunal has observed that the petitioner could not claim to have been retrenched, because in terms of the conditions of the order of appointment there could be no retrenchment, though retrenchment would fall within the meaning of removal for any reason as contained in Section 2(oo) of the Industrial Disputes Act, but with the insertion of Clause bb to the Section 2 (oo) of the Act the termination as a result of non renewal of the contract of employment is excluded. Thus concluded that the petitioner has no substantial claim to seek any sort of re-employment. 5. Thus concluded that the petitioner has no substantial claim to seek any sort of re-employment. 5. The contention of the Learned counsel for the petitioner is that, no formal order of termination was issued. The petitioner initially was posted in the Centre at Ali Kadal but was transferred to Watrihare Centre. The said Centre was closed on completion of the programme. The petitioner by that time had not completed eighteen (18) months tenure, so it was for the respondents to issue necessary instructions to the petitioner, which they have not. When the other similarly situated persons appointed alongwith the petitioner have been re-employed. The petitioner has been singled out. In opposition to this contention the Learned counsel for the respondents while relying on the record, which he has produced has contended that there were grave allegations of embezzlement against the petitioner and the petitioner in order to save himself from action has chosen to remain absent and his continued absence deprived him of re-employment. The contention of the Learned counsel for the respondents on perusal of the records as produced has substance, but the said position should have been projected before the Tribunal, as the Tribunal has not addressed this position at all. 6. The respondents have neither shown to have initiated any proceedings viz-a-viz embezzlement nor are shown to have issued any order of termination, which aspect too has not been looked into by the Learned Tribunal. 7. The Tribunal has opined that in terms of Clause bb to Section 2(oo) of the Act, the termination in view of the conditions of the appointment would not amount to retrenchment, when the non-applicability of the same to the J&K State has not been looked into. Again an important question arose as to whether termination based on conditions incorporated in the order of appointment would be automatic. The position is answered by the Judgment rendered in "State bank of India v. S. Sundaramoney (AIR 1976 SC page 1111)". The law laid has to be applied after taking into view the facts of the case. 8. In the instant case the question of alleged embezzlement and the position of absence before the expiry of term of 18 months, has remained to be looked into by the Learned Tribunal. 9. For the reasons aforesaid Tribunal has not properly adjudicated the issue No. 1, which requires determination afresh. 8. In the instant case the question of alleged embezzlement and the position of absence before the expiry of term of 18 months, has remained to be looked into by the Learned Tribunal. 9. For the reasons aforesaid Tribunal has not properly adjudicated the issue No. 1, which requires determination afresh. The determination of issue No.2 will depend on the determination of issue No.1. 10. To sum up the award impugned dated 17.6.1998 passed by the Tribunal is quashed. Matter is remitted back to the Tribunal for deciding the matter afresh, after giving proper opportunity of hearing to both the sides and after perusal of the records as has been maintained by the respondent-department viz-a-viz the position of the petitioner. The matter having remained pending for long time warrants early adjudication. The Learned Tribunal is expected to finally dispose of the matter within two months and the parties are expected to extend full cooperation in rendering assistance to the Tribunal, so that the matter is decided within the aforesaid period. 11. Copy of the order be sent to Learned Tribunal where the parties shall appear on 20th April, 2010. The record as produced by the Learned counsel for the respondents be returned to him. Disposed of along with the connected CMP(s).