PUNJAB STATE Vs. BUA SINGH AND ANOTHER

JUDGEMENT

(1.) Challenge in this writ petition is to the award dated April 4, 1985 passed by the Presiding Officer, Labour Court, Amritsar whereby the reference made to it under Section 10(1)(c) of the Industrial Disputes Act, 1947 (for short the Act) was answered in favour of the workman and against the Management directing the latter to reinstate the former with continuity of service and full back wages. Facts giving rise to this petition may first be noticed.

(2.) By order dated October 12, 1978 Bua Singh respondent was appointed as a conductor in Punjab Roadways, Tarn Taran. His services were terminated on July 19, 1979 as there was no vacancy. Thereafter he was again appointed a conductor on November 20, 1980 by the General Manager, Punjab Roadways, Ptti. On 20.4.1981 his services were "discontinued as no longer required". This termination gave rise to an industrial dispute which was referred for adjudication to the Labour Court, Amritsar. The workman contended that his services could not be terminated without holding a regular inquiry against him while, on the other hand, the Management took the stand that the workman had been appointed as a conductor purely on temporary basis and, therefore, his services could be terminated at any time in terms of the contract of employment. It was contended before the Labour Court that since the services of the workman had been terminated without complying with the provisions of Section 25-F of the Act, the order of termination was invalid. This plea was rejected by the Labour Court holding that the workman had not completed 240 days of service preceding the date of termination and, therefore, the provisions of Section 25-F of the Act were not attracted. It ws also urged on behalf of the workman that persons junior to him had been retained in service and, therefore, the termination was invalid on that score also. This plea also did not find favour with the Labour Court and the same was repelled. The last contention which found favour with the labour Court was that the order of termination had, in fact, been passed by way of punishment and since a departmental inquiry had not been held, the order of termination was invalid. The Labour Court referred to the report made by the Inspector to the effect that the workman-respondent had been carrying passengers in the bus without tickets and that he had charged the fare from them. A show cause notice is said to have been issued to the workman to which he replied on which the order discontinuing with the services of the respondent as no longer required was passed. This, according to the Labour Court, was a camouflage and that the real object of passing the order was to punish the workman for the alleged misconduct. The Labour Court accordingly set aside the order of termination and directed the reinstatement of the workman with continuity of service and full back wages. Hence this writ petition.

(3.) I have heard learned counsel for the parties and am of the view that the writ petition deserves to succeed. As already noticed above, order dated 20.4.1981 discontinuing with the services of the workman as no longer required had been challenged before the Labour Court. Admittedly, the workman had not completed 240 days of service preceding the date of his termination. The Labour Court was right in holding that the provisions of Section 25-F of the Act were not attracted. The workman was a conductor in the Punjab Roadways and the Inspector had made a report against him that he had been carrying passengers without ticket after charging the fare from them. It is common case of the parties that the workman was a temporary employee and had worked only for a few months. The question that arises is how should an employer deal with a temporary employee who indulges in misconduct. It is by now well settled that the employer has two options : (i) it can take disciplinary action and punish him. In that event a regular inquiry will have to be held and if the charges are proved, he will be removed/dismissed from service. (ii) The employer may feel that since the employee is a temporary hand, why go through the laborious procedure of a departmental inquiry and instead of punishing him the employer may decide to discharge him from service in terms of his appointment. In the latter event, it is not necessary for the employer to hold any inquiry because he does not intend to punish the employee. In the instant case, the General Manager exercised the second option and discharged the workman from service as no longer required without intending to punish him. The action of the General Manager cannot be found fault with and the Labour Court grossly erred in law in holding that since the motive was to punish the workman, his services could not be terminated without holding a regular inquiry. In this view of the matter, the impugned award of the Labour Court cannot be sustained. The view that I have taken finds support from a judgment of the Apex Court in State of Uttar Pradesh and another v. Kaushal Kishore Shukla, 1991 1 SCT 760 . Moreover, the workman had to his credit only about five months of service when he was discharged on 20.4.1981. As observed by the Apex Court in Gujarat Steel Tubes Ltd. etc. v. Gujarat Steel Tubes Mazdoor Sabha and others, 1980 AIR(SC) 1896 this fugitive service did not confer any industrial rights on the workman for the enforcement of which he could resort to his remedies under the Act. The Act draws a distinction between those employees who have service of 240 days or more to their credit and others with lesser service. Generally speaking, industrial workers falling in the latter category do not qualify for reinstatement. For this reason as well, the impugned award cannot be upheld.