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Himachal Pradesh High Court · body

2019 DIGILAW 1901 (HP)

Vijay Kumar v. Principal, D. A. V. Senior Secondary Public School, Ambota

2019-12-11

AJAY MOHAN GOEL

body2019
JUDGMENT : AJAY MOHAN GOEL, J. 1. By way of this petition, the petitioner has assailed Award dated 29.08.2013, passed by the learned Presiding Judge, Labour Court-cum-Industrial Tribunal, Dharamshala in Reference Petition No. 303/2012, vide which, learned Court below while answering the Reference so made to it by the appropriate Government, dismissed the Claim Petition of the present petitioner. 2. Brief facts necessary for the adjudication of the present petition are that the petitioner herein raised an industrial dispute, inter-alia, on the ground that he was engaged as a Driver in the respondent-School on the basis of an interview which was conducted on 02.05.2010. No appointment letter was issued to him. He served as such till 08.07.2011. The school remained closed w.e.f. 09.07.2011 to 14.08.2011 due to summer vacations. Union of the workman, i.e. Himachal Pradesh Private School Avem Karamchari Sangh raised certain demands vide Demand Notice dated 01.06.2010. During the pendency of the same, services of the petitioner were terminated by the respondent without prior permission of the Court in violation of the provisions of Section 33-A of the Industrial Disputes Act, 1947, as he was not allowed to re-join his duties after summer vacations. As per the petitioner, he had worked continuously for more than 240 days from 03.05.2010 to 08.07.2011 in twelve calender months preceding the date of his retrenchment. His termination was in violation of the provisions of the Industrial Disputes Act as well as principles of natural justice. Petitioner thus prayed for quashing of termination order and for his reinstatement with all consequential benefits. 3. On the basis of the industrial dispute so raised, the following Reference was made by the appropriate Government to the learned Court below for adjudication: “Whether the termination of services as Driver of Shri Vijay Kumar S/o Shri Karam Chand, R/o Village and Post Office 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?” Accordingly, Claim petition was filed by the petitioner on the same allegations as have been mentioned hereinabove. 4. If not, to what amount of back wages, past service benefits, seniority and compensation the above worker is entitled to from the above employer?” Accordingly, Claim petition was filed by the petitioner on the same allegations as have been mentioned hereinabove. 4. Claim of the petitioner was resisted by respondent No. 1, inter-alia, on the ground that the petitioner was appointed on temporary basis as a Driver from 06.05.2010 for a period of 66 days. He was relieved on 10.07.2010. Thereafter, a Recruitment Notice was issued by the respondent-institution, pursuant to which, an interview was held for the post of Driver on temporary basis for the period from 13.08.2010 to 31.03.2011. Petitioner appeared in the same and after due process of selection, he was recruited against the temporary post of Driver for a period of 231 days. Thereafter, he was relieved on 31.03.2011 and the relieving order bears his signatures. Again the process of recruitment on contractual basis was initiated by the Institution, in which, the petitioner also participated and he was again engaged for 98 days from 02.04.2011 to 08.07.2011. He accepted all the terms and conditions of service without any opposition. The School thereafter closed in the month of July, 2011 on account of summer vacations. On 01.08.2011, respondent-Institution got published an advertisement inviting applications for the post of Driver on contract basis and an interview for the same was held on 04.08.2011. Petitioner did not appear in the same. Petitioner was never informed that his services were no more required and he was never removed from service in the manner as alleged. As per the respondent, the appointment of the petitioner was on contractual basis for a fixed period and it automatically ended upon completion of contract period. As the petitioner did not appear in the interview, which was held for appointment of Driver on contract basis, therefore, he was not engaged as such. On these basis, respondent-Institution denied that the services of the petitioner were terminated in violation of the provisions of the Industrial Disputes Act. 5. On the basis of pleadings of the parties, learned Court below framed the following issues: “1. Whether the termination of the services of the petitioner by the respondent w.e.f. 09.07.2011 is illegal and unjustified as alleged? OPP. 2. Whether the petitioner has suppressed the true and material facts from the Court as alleged. If so, its effect? OPR. 3. 5. On the basis of pleadings of the parties, learned Court below framed the following issues: “1. Whether the termination of the services of the petitioner by the respondent w.e.f. 09.07.2011 is illegal and unjustified as alleged? OPP. 2. Whether the petitioner has suppressed the true and material facts from the Court as alleged. If so, its effect? OPR. 3. Whether the petition is bad for non-joinder of the necessary parties as alleged. If so, its effect? OPR. 4. Whether this Court/Tribunal has no jurisdiction to entertain and decide the matter as alleged? OPR. 5. Relief.” 6. On the basis of evidence adduced by the respective parties in support of their respective claims, the following findings were returned by learned Court below on the issues so framed: “Issue No. 1: No. Issue No. 2: Yes. Issue No. 3: Not pressed. Issue No. 4: Not pressed. Relief: Claim petition dismissed vide operative portion of the Award.” 7. Upon perusal of the claim as well as response filed to the same by respondent No. 1 and the evidence which was led by the parties in support of their respective contentions, learned Court below held that the evidence demonstrated that petitioner had worked as a Driver from time to time on contractual basis. After his services came to end as per the last contract, the post was again advertised. However, he did not appear in the interview. Learned Court below took into consideration the documents on record, which included the last appointment letter issued to the petitioner, which contained the period for which the appointment was given to the petitioner. Learned Court observed that Ex.R-6 was the copy of the advertisement, vide which, walk-in-interview was scheduled for 4th August, 2011 at 11:00 a.m. in the School premises for the post of Driver, in which, the petitioner did not participate, which led to his non-selection. Learned Court held that as the petitioner had failed to participate in the selection process, it did not lie in his month to say that his services were wrongly and illegally terminated by the respondent. It disbelieved the contention of the petitioner that joining report dated 2nd April, 2011 (Ex.R-5) was not signed by him by holding that the same was submitted by the petitioner in the School on 02.04.2011 itself after issuance of the appointment letter Ex.R-4 in his name. It disbelieved the contention of the petitioner that joining report dated 2nd April, 2011 (Ex.R-5) was not signed by him by holding that the same was submitted by the petitioner in the School on 02.04.2011 itself after issuance of the appointment letter Ex.R-4 in his name. Learned Court also held that evidence adduced made it clear that the petitioner was a contractual employee, who served the respondent/School in different spells from May, 2010 to 8th July, 2011 on payment of consolidated salary per mensem and after the term of contractual appointment ended on 8th July, 2011, he did not participate in the interview, which was subsequently held for engaging Drivers. 8. Having heard learned counsel for the parties and having gone through the Award passed by the learned Tribunal, in my considered view, there is no infirmity in the same. It is a matter of record that the petitioner was engaged as a Driver on contractual basis from time to time. It is clearly borne out from Ex.R-4 that the term of his last engagement was from 2nd April, 2011 to 8th July, 2011. It is also a matter of record that on 1st August, 2011, an Advertisement was issued by the respondent/Institution for conducting walk-in-interview for appointment of a Driver. Said interview was held on 4th August, 2011, in which, the petitioner, did not participate. As the petitioner did not participate in the selection process, therefore, but obvious, he was not offered contractual appointment afresh. However, as on the date when his contractual engagement came to an end, it cannot be said the services of the petitioner were terminated by the respondent-Institution in violation of the provisions of the Industrial Disputes Act. The appointment letter of contractual appointment Ex.R-4 expressly contains the period for which the petitioner stood engaged. This appointment letter was never assailed by the petitioner. Besides this, it is not as if he raised an industrial dispute immediately when purportedly he was not permitted to work after 8th July, 2011. It is not in dispute that in the month of July, the School remained closed on account of vacations. Not only this, all earlier engagements of the petitioner were through walk-in-interviews and it is not as if after the first tenure of his appointment, he was automatically re-engaged for the second tenure also. It is not in dispute that in the month of July, the School remained closed on account of vacations. Not only this, all earlier engagements of the petitioner were through walk-in-interviews and it is not as if after the first tenure of his appointment, he was automatically re-engaged for the second tenure also. A perusal of the Award passed by the learned Tribunal demonstrates that all these aspects of the matter have been gone into by the learned Tribunal. Same stand discussed in the Award so passed by the learned Tribunal in relation to the respective stand of the parties before it. 9. During the course of arguments, learned counsel for the petitioner could not point out that the findings returned by the learned Court below were perverse or not borne out from the record of the case. 10. 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. In this background, as it could not be demonstrated before this Court that the Award which has been passed by the learned Court below is not in consonance with the pleadings of the parties and the documents exhibited before it, this Court finds nothing wrong to interfere with the same and accordingly, as there is no merit in this petition, the same is dismissed. Miscellaneous applications, if any, also stand disposed of.