Dismissed

Roop Chand v. State of Haryana

Punjab & Haryana HC6 Jan 2012CWP/3624/1996

Case brief

AI extract

What is this about?

A writ petition was filed to quash retrenchment orders terminating security guards deemed surplus due to a Board-approved policy of privatization. The court dismissed the petition, holding that the petitioner employees lacked Article 311 protection, the retrenchment complied with the Industrial Disputes Act, and the policy decision was bona fide.

What did the court decide?

Retrenchment orders were upheld; writ petition dismissed without liberty to seek reference to Labour Court.

Roop Chand Vs State of Haryana — Pension and Retirement Benefits | Punjab & Haryana HC (2012)

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CWP No. 3624 of 1996

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In the High Court for the States of Punjab and Haryana at Chandigarh

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CWP No. 3624 of 1996 Date of decision: 06.01.2012

Roop Chand & others

....... Petitioners

Versus

State of Haryana & others

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........ Respondents

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Coram: Hon'ble Mr. Justice Rajiv Narain Raina

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Present : Mr. R.N. Lohan, Advocate for the petitioners.

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Mr. Saurabh Goel, Advocate for Mr.Govind Goel, Advocate for the respondents.

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To be referred to the reporters or not ?

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Whether the judgment should be reported in the digest?

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Rajiv Narain Raina, J.

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This petition has been filed under Article 226 of the Constitution of India for quashing the separate but identical impugned orders (P-3 to P-10), all passed on the same day i.e. 29.2.1996 terminating the services of the petitioners. A further prayer is made for issuance of a writ of mandamus directing their reinstatement on the posts of Security Guard.

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The impugned order records that the respondent-Haryana Roadways Engineering Corporation, Gurgaon ( for short HREC) has decided to privatize the entire security system and consequently the petitioners have been rendered surplus and that their services, therefore, are no longer required. In effecting the retrenchment there has been scrupulous compliance of the provisions of Section 25-F of the Industrial Disputes Act, 1947 (for brevity 'the Act'). The retrenchment

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CWP No. 3624 of 1996

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compensation by way of cheques in different amounts as found due for each of the petitioners stand handed over to them along with the termination orders.

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On notice, having been issued to the respondents the HREC put in appearance and filed its written statement. It has been stated therein that retrenchment has been effected in terms of the policy decision of the Board of Directors vide agenda item 28.10 (Annexure R-1) to privatize the security cover of the Corporation. The decision was taken due to eruption of many security lapses, thefts, pilferage of aluminum and other costly items at the hands of the old security system and this decision is stated to be more beneficial to the interest of the Corporation. An objection has also been taken that an alternative remedy is available under Section 10 (1)(c) of the Act and for this reliance has been placed on the Full Bench decision of this Court in Manohar Lal v. State of Punjab, 1983 (2) SLR 769 and a Division Bench decision of this Court in HRDC v. Pawan Kumar, reported in 1993(6) SLR 288 .

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I have heard learned counsel for the parties at length and carefully perused the record and documents placed before this Court.

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Learned counsel for the petitioners submits that petitioners were regular employees of the Corporation who have the protection of Article 311 of the Constitution of India and, therefore, the retrenchment was in violation of the said Article as well as Articles 14 & 16 of the Constitution.

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The next submission is that since the number of employees in the Corporation is over 100, therefore, the provisions of Chapter V-B of the Act would come into play and compliance of Section 25 N of the Act would have to be made before effecting valid retrenchment. The argument proceeds that permission of the appropriate Government was necessary before passing orders of termination and the route of complying with the provisions of Section 25 F could have not been followed. Still further, it is submitted that to abolish work of regular nature and to hand it over to private contractors amounts to unfair labour practice. Learned counsel refers to Clause 6 of the 5^th Schedule to the Act to so

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CWP No. 3624 of 1996

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contend. In any case, the action of the respondent-Corporation should be faulted in replacing regular employees by employees of a private contractor. Still further the learned counsel for the petitioner submits that when they were replaced by a private Contractor there were allegations of theft and, therefore, the motive and foundation of the impugned order is punitive though the face of the termination orders is innocuous and non stigmatic and for this reason as well the termination order should be nullified.

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I have given my thoughtful consideration to the arguments of the learned counsel for the petitioners and find myself unable to accept any of them as furnishing ground to exercise writ jurisdiction to quash the orders of termination. The contesting respondent being a Corporation may be an authority or instrumentality of State and amenable to writ jurisdiction but its employees can have no protection of Article 311 of the Constitution not being persons appointed to posts under the State or in connection with its affairs. They would not qualify as public servants. We are now left with protection afforded under the Act. Throughout the petition I find that exclusive industrial rights have been claimed i.e. Section 25 N, unfair labour practice in terms of Clause 6 of the 5^th Schedule to the Act etc. which would in fact require adjudication by Labour Courts and Industrial Tribunals, which is a wholesome remedy and which questions would normally not be gone into in exercise of original writ jurisdiction in the first instance.

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On the other hand the learned counsel for the respondent Corporation submits that the FIR (P-1) dated 27.10.1995 was caused by some of the petitioners as complainants. There is no allegation against any of the petitioners of any theft. As there is no accusation against them no stigma is attached. They were rendered surplus following the policy decision which was taken bonafide in the best interest of HREC. The broad policy decision outsourcing the security set up was well considered and, therefore, the impugned orders are legal and valid and not punitive in character, as suggested by the petitioners.

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CWP No. 3624 of 1996

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Learned counsel for the respondent-Corporation has referred to the averments made in para 9 of the petition, which read as follows :-

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“9. That now the petitioners have been terminated/retrenched by respondent No.4 and 5 wrongly and illegally as a measure of punishment on account of the reason given above and this action of the respondents given above is totally mala-fide. The copy of the orders of retrenchment/termination are attached herewith the petition as annexures P-3 to P-10.”

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In reply thereto the respondent Corporation have rebutted the averments in the following manner :

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“9. Contents of para 9 are wrong and denied. The services of the petitioners have been terminated on account of their having become surplus to the requirement of the corporation keeping in view the privatisation of security arrangements of the corporation. The petitioners have been retrenched in accordance with law.”

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The petitioners have not filed any replication to dislodge the stand of the Corporation. Still further, I asked the learned counsel for the respondents whether the policy decision (R-1) to privatize security has been approved by the Board of Directors of the Corporation since at the end of the policy decision (R-1) it is recorded “submitted for consideration of BOD”, as there was nothing on record of this case to show that the policy decision was conclusive and had received the imprimatur of the BOD. Learned counsel has referred me the contents of para 3 of the preliminary objections in the written statement where it is recited that indeed the BOD had approved the recommendations at agenda item 28.10 in a meeting held on 30.11.1995. Learned counsel has produced before me a copy of the decision of the Board of Directors, which has been taken on record as mark “X”. A copy of the same has been furnished to the learned counsel for the petitioners. He has expressed no objection to the document being taken on record.

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I find that there is no challenge to the policy decision as approved by the Board of Directors in the meeting held on 30.11.1995. In the absence of

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CWP No. 3624 of 1996

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challenge to this policy decision in the petition the writ petition itself is misdirected and no interference with the impugned orders of retrenchment is called for. In any case, having been rendered surplus the petitioners have not been dealt with unfairly or unreasonably by bringing their services to an end lawfully by complying with the mandatory provisions of Section 25-F of the Act. Besides, no malafides have been attributed or alleged to the ultimate policy decision of outsourcing the security system. Outsourcing is by now well accepted way of an employer arranging his business to suit its felt needs and cannot be frowned upon. It is not for this Court to interfere in policy matters arrived at reasonably, plausibly and without ill motive. The story of theft may have preceded the policy decision but that alone is no reason to nullify the action. I also feel that in the absence of any pleading to the contrary in the petition, it can be safely inferred that retrenchment compensation stands accepted by the petitioners further drawing the curtain on them and shutting out their case for any relief at the hands of this Court in exercise of writ jurisdiction.

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I consequently, do not find any cogent reason to interfere with the retrenchment orders impugned and dismiss the petition.

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The learned counsel for the petitioners then submits that he may be granted the liberty of approaching the labour court by seeking an industrial reference from the appropriate government on the issues raised in this petition. I see no reason in permitting this course and prolonging the agony, and that too, at this distance of time. However, the petitioners may seek reference in case they so desire.

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(RAJIV NARAIN RAINA) JUDGE

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06.01.2012 'sp'

Roop Chand v. State of Haryana

Case brief

What is this about?

What did the court decide?

Roop Chand v. State of Haryana

Case brief

What is this about?

What did the court decide?

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