CHIEF SIGNAL AND TELECOMMUNICATION ENGINEER CONSTRUCTION Vs. PRESIDING OFFICER CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM LABOUR COURT

JUDGEMENT

(1.) THE writ petition has been filed challenging the order passed by the first respondent Tribunal passing an award in favour of the second respondent by setting aside the order of removal with reinstatement along with back-wages and continuity of service.

(2.) THE brief facts of the case in a nutshell are as follows: the second respondent was appointed as a lascar to the Chief Works Manager, Signal and Telecommunication at Podanur on 01. 06. 1996. His appointed was approved by the Chief Personnel Officer at Chennai by his letters dated 24. 04. 1996 and 30. 05. 1996. The said appointment has been made after examining the second respondent medically and thereafter he joined the duty on 01. 06. 1996. The order of appointment indicates that the appointment will not confer any right on the second respondent towards claiming regular appointment, the services are liable to be terminated at any time without notice and the further absorption is subject to the terms and conditions stipulated in letters dated 04. 06. 1977 and 11. 03. 1987. A reading of the letter dated 04. 06. 1977 would show that if the service of a lascar is found to be unsatisfactory within three years, the same can be terminated as well as if the services are not required within three years the same can also terminated. A lascar will be eligible for regular absorption after three years of continuous service either in the open line or construction. If after the regular absorption they are not required in the Bungalow due to the transfer of officers concerned, the lascars also should be transferred as lascars only in the existing vacancies and they have to seek further avenue along with office peons as per the existing channel of promotion. Further the subsequent letter dated 14. 06. 1987 states even a lascar who has completed one year of service may be considered for absorption in the regular service as office peon etc. If a lascar becomes surplus before the completion of one year, the question of considering his absorption in the regular service does not arise for consideration. Along with the officer concerned with whom the second respondent was working, he was transferred to Chennai. While he was working in Chennai with effect from 27. 02. 1998 onwards he was asked to undergo a medical test. The medical officer also gave a fitness certificate on 18. 03. 1999. However due to the misunderstanding between the second respondent and the officer concerned, no work was given to the second respondent from 13. 03. 2000 onwards. The second respondent gave a representation to the Appellate Authority on 03. 04. 2000 and his father also gave another representation on 24. 03. 2000. In those representations, it has been stated that no work was allotted to the second respondent and a request for confirmation and transfer have been sought by him. However an order of termination was passed on 19. 04. 2000 stating that he has been terminated with effect from 18. 04. 2000 in view of the abolition of the post. Challenging the same, the second respondent sought a reference before the Central Government Industrial Tribunal cum Labour Court and on reference the first respondent has set aside the order of termination and ordered the consequential benefits. In the claim petition, the second respondent has contented that there was a strained relationship between the second respondent and his officer under whom he was working. Therefore in view of the said position, the second respondent was referred to the medical board and thereafter he was not allowed to attend the work. The officer concerned was bent upon inducting some other third party in the place of the second respondent. The second respondent and his father gave representations to the higher authorities but however instead of taking appropriate action on the complaint made by the second respondent an order of termination was passed against the second respondent. A counter affidavit was filed stating that the appointment of the second respondent is temporary and the order of termination has been passed in view of the abolition of the main post occupied by the concerned officer. It is further stated that the appointment is purely contractual and tenure based in nature and therefore the second respondent's post cannot be equated with a Government post. The post being temporary and contractual in nature, there is no question of conducting any enquiry and the second respondent does not have any statutory or legal right. On behalf of the second respondent about 27 documents have been marked and on behalf of the petitioner three documents have been marked. The Tribunal after considering the entire materials available on record and on hearing the learned counsels appearing for both sides has allowed the dispute in favour of the second respondent, by ordering the reinstatement with back-wages and continuity of service. The Tribunal has held that the second respondent was appointed under Ex. 4 dated 01. 06. 1996 as Substitute Bungalow Lascar. The said appointment was made based upon the approval given by the competent authority subject to the conditions stipulated in the letters dated 04. 06. 1977 and 11. 03. 1987. It is further held that the above said two letters also indicate that the second respondent is entitled to be absorbed and based upon the basic qualification and medical examination alone he was appointed. Further in the above said two letters, procedures have been contemplated for the absorption of a lascar appointed like that of the second respondent. Accordingly a lascar who has completed one year of service may be considered for absorption in the regular service as office peon etc. From the above said materials, the Tribunal came to the conclusion that the appointment cannot be termed as purely temporary and contractual in nature. The Tribunal also held that the mere fact the second respondent was given retrenchment compensation and the notice of retrenchment would show that the contention of the petitioner cannot be accepted. The second respondent was given increment with a specific scale of pay as the date of retirement. The deductions have been made for the payment towards the provident fund and other statutory benefits. Even though an allegation has been made against the second respondent that he quarrelled with the servant maid, no enquiry was conducted and therefore the order of termination without conducting an enquiry is bad in law. The Tribunal also took note of the fact that the second respondent was working from 01. 06. 1996 to 18. 04. 2000. Accordingly, the Tribunal has held that in view of Ex. M-2 and M-3 letters, the petitioner will have to provide the employment in the next vacancy. The petitioner was also directed to reinstate the second respondent with continuity of service and back-wages. Challenging the same, the petitioner has filed the present writ petition.

(3.) SUBMISSIONS of the learned counsel appearing for the petitioner: mr. V. G. Suresh Kumar, learned counsel appearing for the petitioner submitted that a reading of the appointment order itself would show that the appointment is temporary and the second respondent is liable to be terminated without any notice. The said appointment being casual and temporary, the second respondent has been removed after the abolition of the post of the officer. The learned counsel further submitted that therefore under those circumstances, the question of violation of Sections 25-F, 25-G and 25-N of the Industrial Disputes Act does not arise for consideration. Hence there is no need to conduct any enquiry before passing the order of retrenchment. In support of his contention, the learned counsel relied upon the judgments reported in (1997) 2 SCC 191 [kunwar ARUN KUMAR v. U. P. HILL ELECTRONICS CORPORATION LTD. ]; (2001) 3 SCC 117 [h. F. SANGATI v. R. G. HIGH COURT OF KARNATAKA] and (2005) 7 SCC 447 [rajasthan SRTC v. ZAKIR HUSSAIN] and submitted that holding an enquiry before passing the termination order is not obligatory.