Punjab-Haryana High Court
Haryana Financial Corporation vs Presiding Officer, Labour ... on 2 September, 2004
Equivalent citations: (2005)IILLJ572P&H
Author: Kiran Anand Lall
Bench: Kiran Anand Lall
JUDGMENT G.S. Singhvi, J.
1. This appeal under Clause X of the Letters Patent is directed against order dated March 14, 1996 vide which the learned single Judge dismissed the writ petition filed by the appellant for quashing the award passed by Labour Court-cum-Industrial Tribunal, Rohtak (hereinafter described as the Industrial Tribunal) in Reference No. 16 of 1991.
2. Respondent No. 2 - Ram Dia was initially appointed as peon in the service of Haryana Financial Corporation (for short, the Corporation) on June 11, 1987 for a period of 19 days. He was paid wages at the rate of Rs. 18/- per day. After expiry of the term of initial appointment, he was re-employed with intermittent breaks. His service was discontinued w.e.f. September 30, 1989 without giving him notice or pay in lieu thereof and compensation as required by Section 25F of the Industrial Disputes Act, 1947 (for short, 'the Act'). He got served notice of demand dated July 2, 1990 on the Managing Director of the Corporation and also sent copies thereof to Labour-cum- Conciliation officer, Rohtak with a prayer to direct the employer to reinstate him. The Corporation submitted reply dated November 20, 1990 through Manager of Rohtak Branch and denied the averments contained in the notice. On receipt of the failure report sent by Labour-cum-Conciliation Officer, the State Government made a reference to the Industrial Tribunal for determination of the following question:
"Whether termination of the services of Shri Ram Dia is justified and in order? If not, to what relief he is entitled?"
3. In his statement of claim, respondent No. 2 pleaded that on the date of termination of service, he had completed more than 240 days service and as such, his service could not have been terminated without complying with the mandatory provisions of Section 25F of the Act. He prayed that the Corporation may be directed to reinstate him in service with full back wages and continuity of service.
4. In the written statement filed on behalf of the Corporation, it was pleaded that respondent No. 2 had been engaged as a daily wage peon on purely temporary basis with a clear stipulation that he will not be entitled to claim benefits admissible to a regular employee. It was further pleaded that the Corporation is not an industry and as such, he is not entitled to reinstatement. Another plea taken by the Corporation was that the service of respondent No. 2 came to an end by efflux of time and, therefore, it was not necessary to comply with Section 25F of the Act.
5. On the pleadings of the parties, the Industrial Tribunal framed the following issues:
"1. As per terms of reference.
2. Whether the petitioner has no cause of action?
3. Whether the claim is time barred?
4. Whether the respondent is not an industry?
5. Whether the petitioner is not workman?
6. Whether the petitioner is gainfully employed?
7. Relief."
6. Respondent No. 2 examined himself as A.W. 1 and produced documents marked as Exhibit W. 1 to W. 24. He stated that he was initially appointed as Peon on June 11, 1987 and as Chowkidar w.e.f. December 1, 1988 and that his service was terminated on September 30, 1989. He further stated that he had worked for 240 days in last 12 months and his service was terminated without giving any notice, charge-sheet or retrenchment compensation. In the cross-examination, he stated that after termination of the service, he had worked for 1 1/2 months at L.P.S., Rohtak. Shri J.R. Goyal, Legal Assistant, who appeared on behalf of the Corporation as M. W. 1, made a statement that respondent No. 2 had left the job himself. However, in the cross-examination, he admitted that respondent No. 2 had worked for more than 240 days with the Corporation.
7. On a consideration of the pleadings of the parties and evidence produced by them, learned Presiding Officer of the Industrial Tribunal held that respondent No. 2 had worked for more than 240 days in one calendar year and his service was terminated without paying compensation as per the requirement of Section 25F of the Act. Accordingly, he answered the reference in favour of respondent No. 2 and ordered his statement vide award dated July 20, 1993. (The award is silent on the issue of continuity of service and back wages).
8. The Corporation challenged the award in C.W.P. No. 4300 of 1994 mainly on the ground that the Industrial Tribunal had erred in treating the termination of the service of respondent No. 2 as retrenchment ignoring the fact that he had voluntarily left the job. The stand taken by the Corporation was that termination of the service of respondent No. 2 was covered by Clause (bb) of Section 2(oo) of the Act and, therefore, it was not necessary to comply with the provisions of Section 25F of the Act. Another plea taken by the Corporation was that the Industrial Tribunal should not have ordered reinstatement of respondent No. 2 because he had got employment in L.P.S. Rohtak on higher salary.
9. Respondent No. 2 did not file reply to the writ petition, but filed affidavit dated August 1, 1995 along with C.M. No. 8302 of 1995. Paragraphs 2 and 3 of his affidavit read as under:
"2. That in the above mentioned C.W.P. the petitioner has submitted a wrong fact that the respondent No. 2 has left the job of peon of HFC as he got better job in Lakshmi Precision Screws Ltd., Rohtak. In fact, the correct fact is that the service of respondent No. 2 as peon on daily wages were terminated without assigning any reasons on September 30, 1989 after serving for two years 3 months and 19 days, i. e., since June 11, 1987 on class IV post to the satisfaction of his superiors.
3. That regarding the fact that the respondent No. 2 had left the job of HFC as he was gainfully employed, i. e., that he got a better job than one in HFC. It is respectfully submitted that in fact the petitioner had joined the Lakshmi Precision Screws Ltd., Rohtak after about 10 months, i.e. on July 20, 1990 to September 21, 1990, i. e. for only two months and that too at the salary of Rs. 23.50 per day. It is pertinent to submit here that it is admitted that respondent No. 2 was getting Rs. 25/- per day salary while he was working on Class IV post in HFC, i.e., the petitioner. Therefore, the above fact submitted by the petitioner that the respondent No. 2 had left the job of HFC as he was gainfully employed in L. P. S. Ltd., Rohtak is totally non-existent being factually wrong. The Personnel Officer of LPS Ltd., Rohtak has issued a certificate dated December 24, 1994 in this regard."
(Italicising is ours)
10. Even though, it was neither pleaded in the written statement filed before the Industrial Tribunal and the writ petition filed before this Court that respondent No. 2 was engaged as a Watchman for the factory taken over by the Corporation from a defaulting party and his service was terminated in accordance with the terms of employment nor any evidence was produced to prove this fact, during the course of arguments before the learned single Judge, Shri Pawan Kumar Mutneja urged that the award be set aside because the service of respondent No. 2 had come to an end by efflux of time. The learned single Judge referred to the two orders of appointment annexed with the writ petition and observed that there is no mention therein about the employment of respondent No. 2 in relation to the factory allegedly taken over by the Corporation. He also observed that no evidence had been produced before the Industrial Tribunal to show that respondent No. 2 had been engaged for any particular work and held that the argument raised on the strength of Clause (bb) of Section 2(oo) of the Act was not tenable. The learned single Judge referred to judgments of the Supreme Court in State Bank of India v. N. Sundara Money, AIR 1976 SC 1111 : 1976 (1) SCC 822 : 1976-I-LLJ-478 and of various High Courts in Chennaiah v. Divisional Engineer, APST Corporation, 1987 LIC 1259; Dilip Hanumantrao Shirke v. Zila Parishad Yavatmal 1990-I-LLJ-445 (Bom); K. Rajendran v. Director (Personnel), Project and Equipment Corporation of India Ltd., 1995-III-LLJ (Suppl)-240 (Mad) and Kurukshetra Central Co-operative Bank Ltd., Kurukshetra v. State of Haryana, (1993) 12 SCT 109 (P & H) and held that the award passed by the Industrial Tribunal did not suffer from an error of law apparent on the face of the record requiring interference by the High Court. Accordingly, he dismissed the writ petition.
11. Shri Pawan Kumar Mutneja, learned counsel for the Corporation reiterated the arguments made before the learned single Judge and submitted that the award passed by the Industrial Tribunal may be declared as vitiated by an error of law and quashed because the learned Presiding Officer did not record issue wise findings and ordered reinstatement of respondent No. 2 ignoring the fact that during the pendency of the proceedings, he had taken up employment elsewhere. Shri Mutneja emphasised that respondent No. 2 had been engaged for a fixed period to look after the factory taken over by the Corporation and as such, the termination of his service w.e.f. September 30, 1989 did not amount to retrenchment within the meaning of Section 2(oo) of the Act. He submitted that the case of respondent No. 2 clearly fell within the ambit of Clause (bb) of Section 2(oo) of the Act and, therefore, it was not necessary to comply with Section 25F of the Act. Learned counsel assailed the finding recorded by the learned single Judge on the issue of applicability of Clause (bb) of Section 2(oo) and argued that the reason assigned by him for rejecting the Corporation's plea is legally unsustainable. In support of his arguments, Shri Mutneja relied on the judgments of the Supreme Court in M. Venugopal v. L. I. C. of India, AIR 1994 SC 1343 : 1994 (2) SCC 323 : 1994-I-LLJ-597; State of Rajasthan v. Rameshar Lal Gahlot AIR 1996 SC 1001 : 1996 (1) SCC 595 : 1996-I-LLJ-888; Morinda Co-operative Sugar Mills Ltd. v. Ram Kishan AIR 1996 SC 332 : 1995 (5) SCC 653 : 1996-I-LLJ-870 and Haryana State FCCW Store Ltd. v. Ram Niwas, AIR 2002 SC 2495 : 2002 (5) SCC 654 : 2002-II-LLJ-1153.
12. Shri Pankaj Maini, learned counsel for respondent No. 2 supported the order under challenge and argued that the Corporation's challenge to the award was rightly negatived by the learned single Judge because no evidence was produced before the Industrial Tribunal to show that termination of the service of respondent No. 2 was covered by Clause (bb) of Section 2(oo) of the Act. He referred to the averments contained in the writ petition to show that the Corporation had nowhere pleaded that respondent No. 2 was employed in relation to some factory/establishment taken over by it and his service was terminated on the completion of work, but in the memo of appeal filed under Clause X of the Letters Patent, an attempt has been made to make out an altogether new case by stating that respondent No. 2 was employed as Peon-cum-Chowkidar in relation to the establishment taken over from the defaulting party. Shri Maini then argued that the work against which respondent No. 2 was engaged as Peon in the first instance and then as Chowkidar was perennial in nature and the mechanism of giving short-term appointments was employed by the Manager, Rohtak Branch with a mala fide intention to ensure that he may not get benefit of the provisions contained in the Act. In the end, he submitted that the Appeal Bench may not interfere with the award of the Industrial Tribunal and the order of the learned single Judge because the action taken by the Branch Manager of the Corporation to give short term appointment to respondent No. 2 with intermittent breaks and to discontinue his service w.e.f. September 30, 1989 was an act of unfair labour practice within the meaning of Section 2(ra) read with Section 25T and 25U and Fifth Schedule of the Act.
13. We have given serious thought to the respective arguments and carefully perused the record.
14. Before dealing with the core question relating to applicability of Clause (bb) of Section 2(oo) and Section 25F of the Act to the facts of this case, we consider it proper to notice the parameters for exercise of jurisdiction by the High Court under Article 226 of the Constitution of India in cases involving challenge to the award passed by the Labour Court/Industrial Tribunal and orders passed by other judicial and quasi judicial bodies. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior Courts or Tribunals. A writ can also be issued where in exercise of jurisdiction conferred on it, the Court or the Tribunal acts illegally or improperly, i. e., it decides a question without giving an opportunity to be heard to the party affected by the order or where the procedure adopted by it is opposed to the principles of natural justice. However, it must be remembered that the jurisdiction of the High Court to issue a writ of certiorari is supervisory in nature and not appellate one. This necessarily means that the finding of fact reached by the inferior Court or Tribunal, as a result of the appreciation of evidence, cannot be re-opened or questioned in writ proceedings except when the judgment, order or award suffers from an error of law apparent on the face of the record. This is the abstract statement of law, but the vexed question is as to what is an error of law apparent on the face of the record and in what circumstances a finding of fact recorded by an inferior Court or Tribunal or a quasi-judicial authority can be corrected. Broadly speaking, an error of law is one which can be discovered on a bare reading of the judgment, order or award under challenge along with the documents which have been relied upon by the inferior Court, Tribunal or quasi-judicial authority. An error, the discovery of which is possible only after a detailed scrutiny of the evidence produced by the parties and lengthy debate at the Bar cannot be regarded as an error of law for the purpose of a writ of certiorari. A finding of fact recorded by an inferior Court or Tribunal can be corrected only if it is shown that in recording the said finding the Court or the Tribunal had erroneously refused to admit admissible and material evidence or had erroneously admitted inadmissible evidence and the same has influenced the impugned finding. Similarly, a finding of fact based on no evidence would be regarded as error of law which can be corrected by a writ of certiorari. However, sufficiency or adequacy of the evidence relied upon by the inferior Court or Tribunal or the quasi-judicial authority cannot be gone into by the High Court while considering the prayer for issue of a writ of certiorari. Likewise, the mere possibility of forming a different opinion on re-appreciation of evidence produced by the parties is not sufficient for issue of a writ of certiorari.
15. In Sayed Yakoob v. K.S. Radhakrishnan, AIR 1964 SC 477, a Constitution Bench of the Supreme Court considered the scope of the High Court's power to issue the writ of certiorari and laid down the following propositions:
"A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior Courts or Tribunals: these are cases where orders are passed by inferior Courts or Tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can, similarly, be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice.
The jurisdiction of High Court to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit the admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. A finding of fact recorded by the Tribunal cannot, however, be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding being within the exclusive jurisdiction of the Tribunal, the points cannot be agitated before a writ Court."
16. In Shaikh Muhammad Umarsaheb v. Kadalaskar Hasham Karimsab, AIR 1970 SC 61 : 1969 (1) SCC 741, Their Lordships of the Supreme Court, while dealing with the power of the High Court under Article 226 to reappreciate the evidence produced before the trial Judge, held as under:
"Where the evidence adduced before the trial Judge was not so immaculate that another Judge might not have taken a different view, it cannot be said that there was no evidence on which the trial Judge could have come to the conclusion he did. When the trial Court accepts the evidence, the High Court which is not hearing an appeal cannot be expected to take a different view in exercising jurisdiction under Articles 226 and 227."
17. In Jitendra Singh Rathore v. Shri Baidyanath Ayurved Bhawan Ltd., AIR 1984 SC 976 : 1984 (3) SCC 5 : 1984-II-LLJ- 10, a two Judge Bench of the Supreme Court dealt with the scope of certiorari jurisdiction of the High Court qua the award passed by the Tribunal under the Act and held as under at p. 11 of LLJ:
"6. The High Court is undisputably entitled to scrutinise the orders of the subordinate Tribunals within the well accepted limitations and, therefore, it could in an appropriate case quash the award of the Tribunal and thereupon remit the matter to it for fresh disposal in accordance with law and directions, if any. The High Court is not entitled to exercise the powers of the Tribunal and substitute an award in place of the one made by the Tribunal as in the case of an appeal where it lies to it. ..."
18. In R. S. Saini v. State of Punjab, AIR 1999 SC 3579 : 1999 (8) SCC 90 : 1999-II-LLJ-1415, the Supreme Court upheld the order passed by this Court dismissing the writ petition filed against the order of the petitioner's removal from the office of the President of Municipal Committee. Some of the observations made in that decision, which are worth noticing read as under at p. 1419 of LLJ:
"15. ... The Court while exercising writ jurisdiction will not reverse a finding of the enquiring authority on the ground that the evidence adduced before it is insufficient. If there is some evidence to reasonably support the conclusion of the enquiring authority, it is not the function of the Court to review the evidence and to arrive at its own independent finding. The enquiring authority is the sole Judge of the fact so long as there is some legal evidence to substantiate the finding and the adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the Court in writ proceedings."
19. The propositions laid down in Sayed Yakoob's case (supra) has been reiterated in a recent judgment in Mohd. Shahnawaz Akhtar v. Ist ADJ, Varanasi, (2002) 8 JT (SC) 69.
20. Having noticed the principles laid down by the Supreme Court for issuance of a writ of certiorari, we shall now consider whether termination of the service of respondent No. 2 amounts to retrenchment within the meaning of Section 2(oo) of the Act or the same is covered by Clause (bb) thereof. For this purpose, it will be useful to notice the legislative developments in this regard. Side by side, we may refer to some of the important judicial precedents. The Trade Industrial Disputes Act, 1929 and the Industrial Disputes Act, 1947 (as originally enacted) did not contain the definition of the term 'retrenchment'. In 1953, the Government of India, in the wake of severe crisis in the textile industries in Bombay and the apprehended large scale removal of workmen issued Industrial Disputes (Amendment) Ordinance, which was subsequently replaced by the Industrial Disputes (Amendment) Act, 1953 (Act No. 47 of 1953). By the said Ordinance, Section 2(kkk) and, 2(oo) containing the definitions of 'lay-off' and 'retrenchment' respectively and Chapter V-A were inserted in the original Act. Section 2(oo), as inserted by Act No. 47 of 1953, reads as under:
""Retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include:
(a) Voluntary retirement of the workman: or
(b) Retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf: or
(c) Termination of the service of a workman on the ground of continued ill-health."
21. The above reproduced provision came up for consideration in Hari Parsed Shivshankar Shukla v. A.D. Divikar, AIR 1957 SC 121. A Constitution Bench of the Supreme Court interpreted the term retrenchment in the context of termination of service on bona fide closure of business and held:
"Retrenchment as defined in Section 2(oo) and as used in Section 25F has no wider meaning than the ordinary accepted connotation of the word. It means the discharge of surplus labour or staff by the employer for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, and it has no application where the services of all workmen have been terminated by the employer on a real and bona fide closure of business or where the services of all workmen have been terminated by the employer on the business or undertaking being taken over by another employer in circumstances like those of a Railway Company which is purchased and taken over by the Government under the terms of the contract under which the company constructed the railway and operated it."
In Anakpalla Co-operative Agricultural and Industrial Society Ltd. v. Workmen, AIR 1963 SC 1489 : 1962-II-LLJ-621, another Constitution Bench of the Supreme Court considered the relative scope of Sections 2(oo), 25F and 25FF of the Act. After making reference to the decision of Hariprasad Shivshankar Shukla's case (supra), their Lordships observed at p. 628 of LLJ:
11. ... In Hariprasad this Court was called upon to consider the true scope and effect of the concept of retrenchment as defined in Section 2(oo) and it held that the said definition had to be read in the light of the accepted connotation of the words, and as such, it could have no wider meaning than the ordinary connotation of the word and according to this connotation retrenchment meant the discharge of surplus labour or staff by the employer for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, and did not include termination of services of all workmen on the bona fide closure of industry or on change of ownership or management thereof...."
22. In Workmen of Subong Tea Estate v. Outgoing Management of Subong Tea Estate, AIR 1967 SC 420 : 1964-I-LLJ-333, the Supreme Court, while recognising the right of the management to effect retrenchment, observed as under at p. 338 of LLJ:
"In dealing with the question of retrenchment in the light of the relevant provisions to which we have just referred, it is, however, necessary to bear in mind that the management can retrench its employees only for proper reasons. It is undoubtedly true that it is for the management to decide the strength of its labour force, for the number of workmen required to carry out efficiently the work involved in the industrial undertaking of any employer must always be left to be determined by the management in its discretion and so, occasion may arise when the number of employees may exceed the reasonable and legitimate needs of the undertaking. In such a case, if any workmen become surplus, it would be open to the management to retrench them. Workmen may become surplus on the ground of rationalisation or on the ground of economy reasonably and bona fide adopted by the management, or of other industrial or trade reasons. In all these cases, the management would be justified in effecting retrenchment in its labour force. Thus, though the right of the management to effect retrenchment cannot normally be questioned, when a dispute arises before an Industrial Court in regard to the validity of any retrenchment, it would be necessary for industrial adjudication to consider whether the impugned retrenchment was justified for proper reasons. It would not be open to the management either capriciously or without any reason at all to say that it proposes to reduce its labour force for no rhyme or reason. This position cannot be seriously disputed."
23. In State Bank of India v. N. Sundara Money (supra), the Supreme Court gave wider meaning to the definition of retrenchment. In that case, it was urged on behalf of the appellant that termination of the service of the workman by efflux of time as per the terms of employment did not amount to retrenchment. While repelling this plea, the Supreme Court observed as under 1976-I-LLJ-478 at pp. 482 & 483:
"10. A breakdown of Section 2(oo) unmistakably expands the semantics of retrenchment. Termination ... for any reason whatsoever are the key words. Whatever the reasons, every termination spells retrenchment. So the sole question is, has the employee's service been terminated? Verbal apparel apart, the substance is decisive. A termination takes place where a term expires either by the active step of the master or the running out of the stipulated term. To protect the weak against the strong this policy of comprehensive definition has been effectuated. Termination embraces not merely the act of termination by the employer, but the fact of termination howsoever produced. May be, the present may be a hard case, but we can visualise abuses by employers, by suitable verbal devices, circumventing the armour of Section 25F and Section 2(oo). Without speculating on possibilities, we may agree that 'retrenchment' is no longer terraincognito but are covered by an expansive definition. It means to end, conclude, cease. In the present case, the employment ceased, concluded, ended on expiration of 9 days automatically may be, but cessation all the same. That to write into the order of appointment, the date of termination confers no moksha from Section 25F(b) is inferable from the proviso to Section 25F(1). True, the Section speaks of retrenchment by the employer and it is urged that some act of volition by the employer to bring about the termination is essential to attract Section 25F and axiomatic extinguishment of service by effusion of time cannot be sufficient ...
... Words of multiple import have to be winnowed judicially to suit the social philosophy of the statute. So screened we hold that the transitive and intransitive senses are covered in the current context. Moreover, an employer terminates employment not merely by passing an order as the service runs. He can do so by writing a composite order, one giving employment and the other ending or limiting it. A separate, subsequent determination is not the sole magnetic pull of the provisions. A pre-emptive provision to terminate is struck by the same vice as to the post-appointment termination. Dexterity of diction cannot defeat the articulated conscience of the provision."
24. The ratio of N. Sundara Money's case (supra) was reiterated and followed in Santosh Gupta v. State Bank of Patiala, AIR 1980 SC 1219 : 1980 (3) SCC 340 : 1980-II-LLJ-72, Mohan Lal v. Management of Bharat Electronics Ltd. AIR 1981 SC 1253 : 1981 (3) SCC 225 : 1981-II-LLJ-70, L. Robert D'Souza v. Executive Engineer, Southern Railway, AIR 1982 SC 854 : 1982 (1) SCC 645 : 1982-I-LLJ-330, Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiah, AIR 1983 SC 1320 : 1984 (1) SCC 244 : 1984-I-LLJ-110 and Gammon India Ltd. v. Niranjan Dass, AIR 1984 SC 500 : 1984 (1) SCC 509 : 1984-I-LLJ-233. In M. Boraiah's case (supra), the Supreme Court rejected the plea of the employer that the law laid down in N. Sundara Money's case (supra) requires reconsideration and observed 1984-I-LLJ- 110 at p. 115:
"12. ... We are not inclined to hold that the stage has come when the view indicated in Sundara Money's case, (supra) has been 'absorbed' into the consensus and there is no scope for putting the clock back or for an anti-clockwise operation."
And in the second case, a three Judge Bench of the Supreme Court observed 1984-I-LLJ-233 at p. 235:
"2. ... On a true construction of the notice, it would appear that the respondent had become surplus on account of reduction in volume of work and that constitutes retrenchment even in the traditional sense of the term as interpreted in Pipraich Sugar Mills Ltd. v. Pipraich Sugar Mills Mazdoor Union, AIR 1957 SC 95 : 1957-I-LLJ-235 though that view does not hold the field in view of the recent decisions of this Court in State Bank of India v. N. Sundara Money AIR 1976 SC 1111 : 1976-I-LLJ-478. Hindustan Steel Ltd. v. Presiding Officer, Labour Court, Orissa, 1977-I-LLJ-1 (SC), Santosh Gupta v. State Bank of Patiala, AIR 1980 SC 1219 : 1980-II-LLJ-72, Delhi Cloth & General Mills Ltd., v. Shambhu Nath Mukherjee, 1978-I- LLJ-1 (SC), Mohan Lal v. Management of Bharat Electronics Ltd., AIR 1981 SC 1253 : 1981-II-LLJ-70, L. Robert D'Souza v. Executive Engineer, Southern Railway AIR 1982 SC 854 : 1982-I- LLJ-330. The recital and averments in the notice leave no room for doubt that the service of the respondent was terminated for the reasons that on account of recession and reduction in the volume of work of the company respondent has become surplus. Even apart from the termination of service for the reasons mentioned in the notice is not covered by any of the Clauses (a), (b) and (c) of Section 2(oo) which defines retrenchment and it is by now well settled that where the termination of service does not fall within any of the excluded categories, the termination would be ipso facto retrenchment. It was not even attempted to be urged that the case of the respondent would fall in any of the excluded categories. It is, therefore, indisputably a case of retrenchment."
25. Notwithstanding the aforementioned decisions in which the interpretation of the term 'retrenchment' as given in N. Sundara Money's case (supra) was followed and reiterated, the issue was referred to the Constitution Bench. In Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Presiding Officer, Labour Court 1990 (3) SCC 682 : 1990-II-LLJ-70, the Constitution Bench of the Supreme Court made a detailed survey on the relevant provisions and also made reference to almost all the decisions of the Apex Court on the subject of 'retrenchment' and then held that the wider interpretation of the term 'retrenchment' as given in N. Sundra Money's case (supra) represents the correct position of law. The Constitution Bench held that 'retrenchment' means the termination by the employer of the service of the workman for any reason whatsoever except those expressly excluded in the Section.
26. In the year 1982, the Government of India, after taking into consideration the recommendations made by the National Commission on Labour and observations made by the Supreme Court in Bangalore Water Supply and Sewerage Board v. R. Rajappa, AIR 1978 SC 548 : 1978 (2) SCC 213 : 1978-I-LLJ-349, introduced Industrial Disputes (Amendment) Bill which was finally enacted as the Industrial Disputes (Amendment) Act No. 46 of 1982. Another Bill introduced in 1984 to further amend the Act led to the enactment of Industrial Disputes (Amendment) Act, 1984 (Act No. 49 of 1984). Some of the important provisions inserted by Act No. 46 of 1982 include the definition of the term unfair labour practice, Chapter VC and the Fifth Schedule. Clause (bb) was inserted in Section 2(oo) by Act No. 49 of 1984. Amended Section 2(oo) and Sections 2(ra), 25T and 25U and Entry 10 of the Fifth Schedule, which are relevant for deciding this appeal read as under:
"Sections 2 (oo), (ra), 25T and 25U of the Act.
2(oo) 'retrenchment' means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as punishment inflicted by way of disciplinary action, but does not include-
(a) voluntary retirement of the workman, or
(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf: or (bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or
(c) termination of the service of a workman on the ground of continued ill-health.
(ra) unfair labour practice means any of the practices specified in the Fifth Schedule.
25-T. Prohibition of unfair labour practice.- No employer or workman or a trade union, whether registered under the Trade Unions Act, 1926 (16 of 1926), or not, shall commit any unfair labour practice.
25-U. Penalty for committing unfair labour practices.- Any person who commits any unfair labour practice shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees or with both.
Entry 10 of Fifth Schedule I. On the part of employers and trade unions of employees xx xx xx
10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen."
27. An analysis of Section 2(oo) along with its various clauses shows that termination of the service of a workman amounts to retrenchment except when the action of the employer falls within one of the following categories:
(i) Termination of service as a punishment inflicted by way of disciplinary action:
(ii) Voluntary retirement of the workman:
(iii) Retirement of the workman on his attaining the age of superannuation in terms of the contract of employment:
(iv) Termination of service on account of non-renewal of contract of employment after the same has expired:
(v) Termination of service in accordance with the stipulation contained in the contract of employment itself: and
(vi) Termination of service on the ground of continuous ill-health of the workman.
28. The aforesaid six categories can appropriately be termed as exceptions to the definition of 'retrenchment' and being exceptions to the general rule, the same have to be strictly interpreted keeping in view the wider literal meaning given to the definition of retrenchment in State Bank of India v. N. Sundara Money (supra), which has been approved by the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd." Chandigarh v. Presiding Officer, Labour Court, (supra). The Court should also keep in mind one of the well-recognised canons of interpretation that welfare statutes must be liberally construed with a view to advance the purpose/object of the enactment, namely, protection of the interest of weaker sections of the society. This principle was applied in State of Bombay v. Hospital Mazdoor Sabha, AIR 1960 SC 610 : 1960-I-LLJ-251 and Bangalore Water Supply and Sewerage Board v. R. Rajappa (supra) for interpreting the definition of the term 'industry' contained in Section 2(k). Similar approach has been adopted for interpretation of the term 'retrenchment' in a number of cases to which reference has been made hereinabove. In Surendra Kumar Verma v. Central Government, Industrial Tribunal-cum-Labour Court AIR 1981 SC 422 : 1980 (4) SCC 443 : 1981-I-LLJ-386 the Supreme Court observed as under at p. 389 of LLJ:
"6. ... Welfare statutes must, of necessary, receive a broad interpretation. Where legislation is designed to give relief against certain kinds of mischief, the Court is not to make in-roads by making etymological excursion ..."
29. Therefore, while interpreting different parts of Section 2(oo), the competent Court/Tribunal is duty bound to take a holistic view keeping in mind the related provisions, like Sections 2(ra), 25T, 25U and various entries of Fifth Schedule. If it is found that the employer engaged the workman on casual basis/on daily wages or on temporary basis with intermittent breaks with a view to deprive him of the rights guaranteed under the Act or other contemporaneous statutes, then termination of the service of such workman on the pretext of non-renewal of the contract of employment or in accordance with the stipulation contained therein will have to be treated as an act of unfair labour practice and the Court will be fully justified in rejecting the plea of the employer that termination of the service of the workman does not amount to retrenchment but is covered by Clause (bb). In our opinion, Clause (bb), which is an exception to the principal Section, will have to be given a narrow interpretation because it seeks to deprive the workman of the right which was available to him before 1984.
30. The matter deserves to be considered from another angle. The employer is always in a position to dictate the terms of service vis-a-vis the workman or to be workman. It can unilaterally impose wholly unreasonable and unconscionable conditions of service on the workman who has little or no choice but to accept the same, The employee cannot possibly protest against the incorporation of arbitrary, unreasonable and even unconscionable conditions of service in the contract of employment. Any such protest by the employee or to be an employee will cost him job or a chance to enter employment. In respect of a work of permanent or continuing nature, the employer can always give employment for fixed term or incorporate a condition in the contract of employment/appointment letter that the service of the workman will come to an end automatically after a particular period or on the happening of a particular event. In such a situation, if the Court finds that the conditions are arbitrary and unreasonable and the employer has forced these conditions upon a workman with the sole object of depriving him of his legitimate rights, then the employer's plea that termination of his service is covered by Clause (bb) will have to be rejected.
31. This Court examined the scope of Clause (bb) in Balbir Singh v. Kurukshetra Central Co-operative Bank Ltd. 1990-I-LLJ-443 and held at p. 443 (headnote):
"The amended provision in the Section 2(oo)(bb) cannot be so construed as to drastically restrict the orbit of the term 'retrenchment'. Clause (bb) is an exception which must be interpreted narrowly. It cannot be given meanings which nullify or curtail the ambit of the principal clause. No doubt the intention of Parliament in enacting this clause was to exclude certain categories of workers from the term 'retrenchment', but there is nothing in this clause which allows an outlet to unscrupulous employers to shunt out workers in the garb of non- renewal of the contract even when the work subsists. This clause as a whole has to be construed strictly in favour of the workman as far as possible as to ensure that the Act is implemented in the letter and spirit. If the termination is meant to exploit an employee or to increase the bargaining power of the employer, then it has to be excluded from the ambit of Clause (oo) and the definition of the term "retrenchment" has to be given full meaning. The contractual clause enshrined in Clause (bb) cannot be resorted to frustrate the claim of the employee against uncalled for retrenchment or for denying the other benefits. It cannot be so interpreted as to enable an employer to resort to the policy of hire and fire and give unguided power to the employer to renew or not to renew the contract irrespective of the circumstances in which it was entered into or the nature and extent of work for which he was employed.
Clause (bb) has to be so interpreted as to limit it to cases where the work itself has been accomplished and the agreement of hiring for a specific period was genuine. If the work continues, the non-renewal of the contract has to be dubbed as mala fide.
32. In Raj Bahadur v. General Manager, Food Specialities Limited, 1991 (1) PLR 631, the Court held as under:
"It would be pertinent in this behalf to advert to the provisions of Section 25U of the Act which reads as under:
"Any person who commits any unfair labour practice shall be punishable with imprisonment for a term which may extend to six months or with fine, which may extend to one thousand rupees or with both."
The expression 'unfair labour practice' has been defined in Section 2(ra) of the Act to mean any of the practices specified in Fifth Schedule. Item 10 of this Schedule would clearly cover the point in issue. This item is in the following terms:
"To employ workmen as 'badlis', casual or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen."
It will be seen, therefore, that the Legislature has ensured ample safeguards against the provisions of Clause (bb) of Section 2(oo) being used as a device for unfair labour practice, by the employer against the employees."
33. In Haryana State Federation of Consumers Co-operative Wholesale Stores Ltd. v. Presiding Officer, Labour Court, 1992 (1) SCT 697 (P&H), a Division Bench of this Court negatived the contention of the employer that termination of service of the workman in accordance with the period fixed in the extension given by the employer would be covered by Clause (bb) and held:
"The provisions of Section 2(oo)(bb) are to be read along with Section 25F of the Industrial Disputes Act. When the management allows the workman to continue in service with notional breaks after the workman had put in 240 days of service in 12 months, it amounts to unfair practice if his services are terminated."
34. In Bhikku Ram v. Presiding Officer, Industrial Tribunal- cum-Labour Court, Rohtak, 1996-III-LLJ- (Suppl)-1126 (P&H) a Division Bench, of which one of us (G. S. Singhvi, J.) was a member, after a minute analysis of the relevant statutory provisions, laid down the following propositions at p. 1139:
"24. In every case of termination of service of a workman, where the workman claims that he has worked for a period of 240 days in a period of twelve months and termination of his service is void for want of compliance with the requirement of Section 25F and where the employer pleads that termination of service has been brought about in accordance with the terms of contract of employment or termination is as a result of non-extension of terms of employment, the Court will have to carefully scrutinise all the facts and apply the relevant provisions of law. It will be the duty of the Court to determine the nature of employment with reference to the nature of duties performed by the workman and the type of job for which he was employed. Once the employee establishes that he was employed for a work of permanent/continuous nature and that employer has arbitrarily terminated his service in order to defeat his rights under the Industrial Disputes Act or other labour legislations, a presumption can appropriately be drawn by the Court that the employer's action amounts to unfair labour practice. In such a case, burden will lie on the employer to prove that the workman was engaged to do a particular job and even though the employee may have worked for 240 days such employment should be treated as covered by the amended clause because the service was terminated on the completion of the work. A stipulation in the contract that the employment would be for a specified period or till the completion of a particular job may legitimately bring the termination of service within the ambit of Clause (bb). However, if the employer resorts to methodology of giving fixed term appointment with a view to take out to Section 2(oo) and terminate the service despite the continuity of the work and job requirement, the Court may be justified to draw an inference that the employer's action lacks bona fide or that he has unfairly resorted to his right to terminate the service -of the employee".
35. The Division Bench referred to the judgments of different High Courts in which Section 2(oo) and Clause (bb) thereof were interpreted and held 1996-III-LLJ (Suppl)-1126 at p. 1143;
"35. From the above, it is clear that termination of service of a workman, who has worked under an employer for 240 days in a period of twelve months preceding the date of termination of service will ordinarily be declared as void if it is found that the employer has violated the provisions of Section 25F(a) and (b). If the employer resists the claim of the workman and invokes Section 2(oo)(bb), burden lies on the employer to show that though the employee has worked for 240 days in twelve months prior to termination of his service, such termination of service cannot be treated as retrenchment because it is in accordance with the terms of a contract of employment or on account of non-renewal of the contract of employment. It has also to be shown by the employer that the workman had been employed for a specified work and the job which was being performed by the employee is no more required, Only a bona fide exercise of right by an employer to terminate the service in terms of the contract of employment or for non-renewal of the contract, will be covered by Clause (bb). If the Court finds that the exercise of rights, by the employer is not bona fide or the employer has adopted the methodology of fixed term employment as a conduct or mephanism to frustrate the rights of the workman, the termination of the service will not be covered by the exception contained in Clause (bb). Instead, the action of the employer will have to be treated as an act of unfair labour practice, as specified in the Fifth Schedule of the Act. The various judgments rendered by the different High Courts and by the Supreme Court clearly bring out the principle that only a bona fide exercise of the powers by the employer in cases where the work is of specified nature or where the temporary employee is replaced by a regular employee that the action of the employer will be upheld, In all other cases, the termination of the service will be treated as retrenchment unless they are covered by other exceptions set out hereinabove."
36. The above noted propositions have been reiterated in Simla Devi v. Presiding Officer, labour Court, Bhatinda 1997-I-LLJ-788 (P&H), Trishla Devi v. Presiding Officer, Industrial Tribunal-cum-Labour Court, U.T., Chandigarh, (1999) 1 RSJ 58; Ajay Kumar v. Presiding Officer, Labour Court, (2000) 2 RSJ 397; Ram Niwas v. Presiding Officer, Labour Court, Faridabad 2001-II-LLJ-1164 (P&H-DB) and Management of Vice-Chancellor, Kurukshetra University v. Presiding Officer, Labour Court, 2001 (4) RSJ 200.
37. In S.M. Nilajkar v. Telecom, District Manager, Karnataka, AIR 2003 SC 3553 : 2003 (4) SCC 27 : 2003-II-LLJ- 359 their Lordships of the Supreme Court interpreted Section 2(oo)(bb) of the Act and laid down the following propositions at pp. 363 & 364 of LLJ:
"12. Retrenchment in its ordinary connotation is discharge of labour as surplus though the business or work itself is continued, it is well settled by a catena of decisions that labour laws being beneficial pieces of legislation are to be interpreted in favour of the beneficiaries in case of doubt or where it is possible to take two views of a provision. It is also well-settled that the Parliament has employed the expression "the termination by the employer of the service of a workman for any reason whatsoever" while defining the term retrenchment, which is suggestive of the legislative intent to assign the term retrenchment, a meaning wider than what it is understood to have in common parlance. There are four exceptions carved out of the artificially extended meaning of the term 'retrenchment' and therefore, termination of service of a workman so long as it is attributable to the act of the employer would fall within the meaning of 'retrenchment' de hors the reason for termination. To be excepted from within the meaning of 'retrenchment' the termination of service must fall within one of the four excepted categories. A termination of service which does not fall within the categories (a), (b), (bb) and (c) would fall within the meaning of 'retrenchment'.
13. The termination of service of a workman engaged in a scheme or project may not amount to retrenchment within the meaning of Sub-clause (bb) subject to the following condition being satisfied:
(i) that the workman was employed in a project or scheme of temporary duration;
(ii) the employment was on a contract, and not as a daily- wager simpliciter, which provided inter alia that the employment shall come to an end on the expiry of the scheme or project; and
(iii) the employment came to an end simultaneously with the termination of the scheme or project and consistently with the terms of the contract:
(iv) the workman ought to have been apprised or made aware of the abovesaid terms by the employer the commencement of employment.
14. The engagement of a workman as a daily-wager does not by itself amount to putting the workman on notice that he was being engaged in a scheme or project which was to last only for a particular length of time or up to the occurrence of some event and, therefore, the workman ought to know that the employment was short-lived. The contract of employment consciously entered into by the workman with the employer would result in a notice to the workman on the date of the commencement of the employment itself that his employment was short-lived and as per the terms of the contract, the same was liable to termination on the expiry of the contract and the scheme or project coming to an end. The workman may not therefore complaint that by the act of employer his employment was coming to an abrupt termination. To exclude the termination of a scheme or project employee from the definition of retrenchment it is for the employer to prove the abovesaid ingredients so as to attract the applicability of Sub-clause (bb) abovesaid. In the case in hand, the respondent- employer has failed in alleging and proving the ingredients of Sub-clause (bb), as stated hereinabove. All that has been proved is that the appellants were engaged as casual workers or daily-wagers in a project. For want of proof attracting applicability of Sub-clause (bb), it has to be held that the termination of the services of the appellants amounted to retrenchment."(Italicising is ours).
38. We may also notice some judgments of other High Courts. In Shilendra Nath Sukhla v. Vice-Chancellor, Allahabad University, 1987 Lab IC 1607 (All), termination of service of a workman, who had served as daily wager for a period of five years and whose contract of service was renewed every three months, was held to be covered by the principal Section and not by Clause (bb) by the Allahabad High Court. A Division Bench of that Court held that Section 2(oo)(bb) is in the nature of an exception to Section 2(oo) and has to be construed strictly in favour of the workman as the entire object of the Act is to secure a just and fair deal to them. It was further held that Section 2(oo)(bb) cannot be extended to such cases where the job continues and the employee's work is also satisfactory but periodical renewals were made to avoid regular status to employees.
39. In Dilip Hanumantrao Shirke v. Zila Parishad, Yavatmal, (supra), a learned Judge of the Bombay High Court considered a case where the workman was appointed as a Sanitary Inspector on January 9, 1986 and his appointment letter contained a stipulation that the appointment will be for eleven months ending on November 30, 1986 or for such further period or till select list of the candidates is received by the office. His service was terminated with effect from November 30, 1986. While the workman pleaded that he had worked for more than 240 days and as there was violation of Section 25F, he was entitled to be reinstated, the employer invoked Clause (bb). While upholding the claim of the workman, the Bombay High Court set aside the award of the Labour Court and doing so it observed 1990-I-LLJ-445 at p. 448:
"7. ... But if the employer resorts to contractual employment as a device to simply take it out of the principal Clause (oo) irrespective of the fact that the work continues or the nature of duties which the workman was performing are still in existence, such contractual engagements will have to be tested on the anvil of fairness, propriety and bona fides. May be that such fixed tenure employments are made to frustrate the claim of the workman to become regular or get himself confirmed as a permanent employee either under the Rules applicable to such employment or even under the Standing Orders. It is always open to the Court adjudicating the dispute to examine each and every case in its proper perspective and to protect the workman against the abuse of the amended provision. If this protection is not afforded, the benefit flowing from retrenchment, to which every termination succumbs, would be rendered nugatory. The amended Sub-clause (bb) would apply only to such cases where the work ceases with the employment or the post itself ceases to exist or such other analogous cases where the contract of employment is found to be fair, proper and bona fide ..."
40. In K. Rajendran v. Director, P and E, Corporation of India Ltd., (supra), the facts were that the petitioner was appointed as Messenger for 44 days at a time. He continued to work on similar terms for about three years and the work was available on the date of termination of this service. While rejecting the plea of the employer that termination of service was covered by Clause (bb) of Section 2(oo), the Madras High Court held:
"But there is nothing in Sub-clause (bb) which enables an unscrupulous employer to terminate the service of the workers on the ground of non-renewal of their contract even when the work for which they were employed subsists. The exception as contained in Sub-clause (bb) will have to be strictly construed and Clause (bb) should be made applicable only to such cases where the work ceases with the employment or the post itself ceases to exist. Clause (bb) cannot be made applicable to a case when the employer resorts to contractual employment as a device to simply take it out of Clause (oo) of Section 2 of the Act not-withstanding the fact that the work for which the workman are employed continues or the nature of duties which the workman was performing are still in existence."
41. In Jayabharat Printers and Publishers Pvt. Ltd. v. Labour Court, Kozhikode, 1994-II-LLJ-373 (Ker), an identical issue came up for consideration before the Kerala High Court. In that case, the Labour Court had declared the termination of service of the workman after he had served for two years as illegal and void. While rejecting the plea of the employer that termination of service was covered by Section 2(oo)(bb), the Kerala High Court held at p. 376:
"9 ... if contractual employment is resorted to as a mechanism to frustrate the claim of the employee to become regular or permanent against a job which continues or nature of the duties is such that the colour of contractual employment is given to take it out from Section 2(oo), then such agreement cannot be regarded as fair or bona fide and that Section 2(oo)(bb) cannot be extended to such cases where the job continues and the employee's work is also satisfactory but periodical renewals are made to avoid regular status to the employees. ... Section 2(oo)(bb) has to be strictly interpreted and it is necessary to find out whether the letter of appointment is a camouflage to circumvent the provisions of the Industrial Disputes Act, which confer permanency to a worker who has continuously worked for 240 days."
42. We may now revert to the case in hand. A careful scrutiny of the record shows that respondent No. 2 was initially appointed on the post of Peon vide order dated June 11, 1987 issued by Manager of Rohtak Branch of the Corporation. The relevant extracts of that order are reproduced below:
"Re : Appointment for the post of Peon With reference to your application dated June 11, 1987, we are prepared to appoint you as Peon on daily wages at the rate of Rs. 18/- per day on purely temporary basis for a period of one month/19 days from June 11, 1987 to June 29, 1987 whereafter your service shall stand terminated automatically.
2. You will be liable to abide by the Haryana Financial Corporation (Staff) Regulation. Please note that, this service with us on daily wages will not give you any right to claim any benefit for regular employment in our Corporation. Your services are liable to be terminated at any time without any notice and without assigning any reason.
3. If you are prepared to accept the above terms, you may please report to the Branch Manager, Haryana Financial Corporation, Rohtak, immediately at your expenses but not later than June 11, 1987. In case you fail to report for duty by the said date, this letter of appointment shall be deemed to have been cancelled automatically."
43. After expiry of the term of initial appointment, Manager of Rohtak Branch of the Corporation appointed respondent No. 2 with notional breaks up to August 28, 1997 and then from November 16, 1987 to December 15, 1987. Similar appointments were given to him with intermittent breaks up to May 21, 1988 and again from July 1, 1988 to July 30, 1988 and then till September 29, 1988. The last appointment was given to him vide order dated September 1, 1989 for a period of 29 days, i. e., from September 1, 1989 to September 29, 1989. The relevant portions of that order are extracted below:
"Re: Appointment for the post of Chowkidar.
With reference to your application dated September 1, 1989 we are prepared to appoint you as Chowkidar on daily wages was at the rate of Rs. 25/- per day on purely temporary basis for a period of 29 days from September 1, 1989 to September 29, 1989 whereafter your service shall stand terminated automatically.
You will be liable to be abide by the Haryana Financial Corporation (Staff) Regulations. Please note that this service with us on daily wages will not give you any right to claim any benefit for regular employment in our Corporation. Your services are liable to be terminated at any time without any notice and without any reason.
If you are prepared to accept the above terms, you may please report to the Branch Manager, Haryana Financial Corporation, Rohtak immediately but not later than September 1, 1989 at your expenses. In case you fail to report for duty by the said date, this letter of appointment shall be deemed to have been cancelled automatically.".
44. For the reasons best known to the Corporation, copies of other orders vide which respondent No. 2 was given fixed term appointments, were neither produced before the Industrial Tribunal nor the same have been placed on the record of this petition. However, the factum of his appointment with intermittent breaks is clearly established from the averments contained in paragraph 3 of the writ petition, which is reproduced below:
"That the respondent No. 2 was employed as a Peon on June 11, 1987 on daily wages. The appointment letter issued to him specified that the services were temporary and were likely to continue up to June 29, 1987. It was specified that this temporary employment did not give him any right to claim benefit of regular employment. A copy of the appointment letter is appended as Annexure P-1 with this writ petition. Respondent No. 2 was employed against for a fixed period from November 16, 1987 to December 15, 1987. Thereafter, he was given fixed employment with notional break up to May 21, 1988. He was re-employed again from July 1, 1988 to July 30, 1988. He again continued till September 29, 1988 with notional breaks. The last employment letter issued to respondent No. 2 is appended as Annexure P-2. A perusal of Annexure P-2 shows that it was issued in pursuance to the application of respondent No. 2 seeking re-employment as Chowkidar. Respondent No. 2 never came back after September 29, 1989. In fact, he got work with another organisation namely, L.P.S., Rohtak on higher salary and hence did not seem interested to pursue his employment with the petitioner-Corporation."
45. For the sake of reference, the contents of paragraph 2 of the memo of appeal are also reproduced below:
"That the fact of the present case being that the petitioner in exercise of its power under Section 29 of the State Financial Corporation took over an establishment. The need for a Peon-cum- Chowkidar came into existence and was to continue so long as the establishment was not auctioned off. Respondent No. 2 was employed for the first time as a Peon on June 11, 1987 on daily wages. The appointment letter issued to him specified that the services were temporary and were likely to continue up to June 29, 1987. It was specified that this temporary employment did not give him any right to claim benefit of regular employment. A copy of the appointment letter was appended as Annexure P-1 with the petition. Respondent No. 2 was employed with notional breaks up to August 28, 1987. He was re-employed against for a fixed period from November 16, 1987 to December 15, 1987. Thereafter, he was given fixed employment with notional break upto May 21, 1988. He was re-employed again from July 1, 1988 to July 30, 1988. He again continued till September 29, 1988 with notional breaks. The last employment letter issued to respondent No. 2 was appended as Annexure P-2 with the petition. A perusal of Annexure P-2 shows that it was issued in pursuance to the application of respondent No. 2 seeking re-employment as Chowkidar. Respondent No. 2 never came back after September 29, 1988. In fact, he got work with another organisation, namely, L.P.S. Rohtak on higher salary and hence did not seem interested to pursue his employment with the petitioner-Corporation."
46. A careful reading of paragraph 3 of the writ petition and paragraph 2 of the memo of appeal leaves no manner of doubt that as on September 30, 1989, respondent No. 2 had actually worked for 240 days in preceding 12 months. In the opening part of paragraph 2 of the memo of appeal, the Corporation has tried to give a new twist to the entire case by stating that respondent No. 2 was engaged to meet the need of Peon-cum-Chowkidar in relation to an establishment taken over from the defaulting party, but that is inconsequential for the purpose of appreciating the finding of fact recorded by the Industrial Tribunal that he had worked for 240 days in 12 months preceding the termination of his service.
47. In the backdrop of the above legal and factual position, we have no hesitation to hold that termination of the service of respondent No. 2 cannot be treated as covered by Clause (bb) of Section 2(oo) of the Act and the Industrial Tribunal did not commit any illegality by declaring the same to be nullity on the ground of violation of Section 25F of the Act. In this context, it is appropriate to mention that in the notice of demand dated July 2, 1990 served upon the Managing Director of the Corporation and the statement of claim, respondent No. 2 had categorically averred that he was appointed on daily wages w.e.f. June 11, 1987: that his service was terminated on September 30, 1989 without assigning any reason and that even though he had completed more than 240 days in a calendar year, notice pay and retrenchment compensation had not been given to him as required by Section 25F of the Act. In reply dated November 20, 1990 sent by the Manager of Rohtak Branch of the Corporation to the notice of demand and the written statement filed before the Tribunal, it was claimed that respondent No. 2 was employed on a purely temporary basis for fixed period and it was not necessary to comply with Section 25F of the Act, because his service had come to an end by efflux of time. The assertion of respondent No. 2 that he had completed 240 days in a calendar year was met with an assertion that he be put to strict proof on this issue.
48. On an evaluation of the evidence produced by the parties, the Industrial Tribunal held that respondent No. 2 had worked for 240 days in 12 months preceding the termination of his service and that the action of the Corporation to terminate his service amounted to retrenchment within the meaning of Section 2(oo) of the Act. The learned single Judge rejected the Corporation's plea that the case of respondent No. 2 was covered by Clause (bb) of Section 2(oo) and approved the view taken by the Industrial Tribunal that it was a case of retrenchment.
49. In our opinion, the finding recorded by the Industrial Tribunal, that respondent No. 2 had actually worked for 240 days in 12 months preceding the termination of his service is a pure finding of fact based on correct appreciation of evidence which did not call for interference by this Court under Article 226 of the Constitution of India and the learned single Judge did not commit error by refusing to entertain the Corporation's challenge on this score. We also agree with the learned single Judge that Clause (bb) of Section 2(oo) of the Act is not attracted in the case of respondent No. 2 because the Corporation had failed to substantiate its assertion that he was employed in relation to a specified work, i.e., to keep watch on the particular factory taken over by the Corporation and his service was terminated on completion of the work.
50. At the cost of repetition, we consider it proper to mention that neither in the reply sent to the notice of demand nor in the reply to the statement of claim or the writ petition, the Corporation had pleaded that respondent No. 2 was employed as a Peon-cum-Chowkidar in relation to some factory/establishment taken over from a defaulting party. That apart, a bare reading of order dated June 11, 1987 issued by the Manager of Rohtak Branch of the Corporation belies the assertion to this effect made in paragraph 2 of the memo of appeal. If he had been appointed/employment/engaged to work as Peon-cum-Chowkidar in some establishment taken over by the Corporation, then this would have been mentioned in order dated June 11, 1987 or September 1, 1989. However, the fact of the matter is that there is no such stipulation in either of the two orders. Rather, in both the orders, it was specifically mentioned that respondent No. 2 will/be liable to abide by Haryana Financial Corporation (Staff) Regulations. Learned counsel for the Corporation could not explain as to how a person engaged as Peon-cum-Chowkidar in relation to a factory or establishment taken over by the Corporation could be held liable to abide by the Staff Regulations which are applicable to the employees of the Corporation. Therefore, we have no hesitation to reject the new plea taken during the course of arguments before the learned single Judge and in the memo of appeal, moreso because no evidence was produced before the Tribunal to show that respondent No. 2 was, in fact, engaged as Peon-cum-Chowkidar or Peon/Chowkidar in relation to a factory/establishment taken over by it.
51. Before concluding, we consider it proper to deal with the judgments on which reliance has been placed by Shri Mutneja. In Venugopal v. LIC of India (supra), the Supreme Court considered the question whether termination of the service of a probationer Development Officer before expiry of the extended period of probation on account of unsatisfactory service could be treated as retrenchment. It was argued on behalf of the Corporation that service of the officer concerned had been terminated in accordance with the terms of employment. The High Court dismissed the writ petition filed by the appellant by holding that termination of his service was covered by Clause (bb) of Section 2(oo) of the Act. The Supreme Court approved the view taken by the High Court and held 1994-I-LLJ-597 at p. 600:
"9. Regulation 14 aforesaid has to be read as a statutory term of the contract of employment between the Corporation and the appellant. The order of appointment had fixed a target in respect of the performance of the appellant, which admittedly the appellant failed to achieve within the period of probation which was extended up to two years. As such the Corporation was entitled not to confirm the appellant in terms of the order of appointment and to terminate his service during the period of probation without any notice in term of Regulation 14(4) aforesaid. Clauses 10 and 11 of the order of appointment along with Regulation 14 shall be deemed to be stipulations of the contract of employment, under which the service of the appellant has been terminated. Any such termination, even if the provisions of the Industrial Disputes Act were applicable in the case of the appellant, shall not be deemed to be 'retrenchment' within the meaning of Section 2(oo), having been covered by exception (bb) ..."
52. In Morinda Co-operative Sugar Mills Ltd. v. Ram Kishan (supra), the Supreme Court held that termination of the services of seasonal employees cannot be treated as retrenchment within the meaning of Section 2(oo) of the Act.
53. In State of Rajasthan v. Rameshwar Lal Gahlot (supra), the Supreme Court reversed the order of Rajasthan High Court and held that termination of the service of the respondent fell within the ambit of Clause (bb) of Section 2(oo) of the Act. The facts of this case show that the respondent was appointed for a period of three months or till the availability of regularly selected candidate. Notwithstanding this stipulation, the learned single Judge quashed the termination of the service of the respondent on the ground that he had completed 240 days of service and directed his re-appointment. On appeal, the Division Bench directed the reinstatement of the respondent with back wages. Their Lordships of the Supreme Court rejected the argument that the State had not challenged the order of the learned single Bench and observed:
"When the appointment is for a fixed period, unless there is finding that power under Clause (bb) of Section 2(oo) was misused or vitiated by its mala fide exercise, it cannot be held that the termination is illegal. In its absence, the employer could terminate the services in terms of the letter of appointment unless it is a colourable exercise of power. It must be established in each case that the power was misused by the management or the appointment for a fixed period was a colourable exercise of power. Unfortunately, neither the learned single Judge nor the Division Bench recorded any finding in this behalf. Therefore, where the termination is in terms of letter of appointment saved by Clause (bb), neither reinstatement or fresh appointment could be made."
54. In Haryana State F. C. C. W. Store Ltd. v. Ram Niwas (supra), their Lordships of the Supreme Court held that termination of the service of the Watchman appointed for a fixed period to guard stock of grain store in open area of Mandi does not amount to retrenchment within the meaning of Section 2(oo) of the Act. The Supreme Court noted that engagement of the respondent was terminated after the stock lying in the open was cleared and held as under 2002-II-LLJ-1153 at p. 1156:
"15. ... Since there exists a contract of service with the terms and conditions as noted earlier the position is inescapable that the case of disengagement/termination of the workman concerned did not amount to retrenchment. In particular facts and circumstances of the case the Labour Court rightly came to the conclusion that the workmen were entitled to no relief in the case. The High Court was clearly in error in interfering with the Award passed by the Labour Court ..."
55. The proposition laid down in none of the afore-mentioned cases is of any help to the cause of the Corporation. In all the cases, the Supreme Court carne to the conclusion that services of the workmen had been terminated in accordance with the conditions of contract of employment. The facts of those cases did not have any similarity with the fact of the case before us. Moreover, their Lordships did not deal with a case in which the employer had engaged the workman for different periods with intermittent breaks with a view to deprive the workman of his legitimate rights.
56. In the result, we hold that the learned single Judge did not commit any error by refusing to interfere with the award passed by the Industrial Tribunal. Consequently, the appeal is dismissed. However, we make it clear that this order will not entitle respondent No. 2 to claim full back wages. During the pendency of the writ petition and the appeal, the award passed by the Industrial Tribunal had remained stayed subject to the provisions of Section 17B of the Act. As on today, a period of almost 11 years has elapsed from the date of the award. Neither of the parties has produced any evidence regarding the gainful employment, if any, of respondent No. 2. Therefore, it will be in the interest of justice to direct that for claiming back wages, respondent No. 2, shall be free to avail remedy by filing application under Section 33C(2) of the Act. The Corporation shall also be free to contest the application to show that respondent No. 2 was gainfully employed and as such, he is not entitled to whole or part of the back wages.