Rajasthan High Court - Jaipur
Rajveer Singh vs Judge, Labour Court And Anr. on 29 August, 1995
Equivalent citations: (1998)IIILLJ143RAJ, 1996WLC(RAJ)UC280
JUDGMENT Mohini Kapur, J.
1. This writ petition is directed against the award passed by the Labour Court on March 21, 1987 by which the claim of the workman was not accepted. Hence he has approached this Court with the allegation that from August 19, 1981 to August 18, 1982 he was appointed as apprentice with the respondent and thereafter he was appointed as semi-skilled workman on the post of Welder in the regular pay scale on November 2, 1982. The petitioner met with an accident on March 5, 1983 in which his eyes were injured and he received treatment in the ESI Hospital. When he reported for duty on August 16, 1983 he was not allowed to do so and was informed that his services had already been terminated as his employment was on contractual basis and the terms of the contract had expired. According to him the termination of his services tantamounts to retrenchment. It was also alleged that the contracts were in the form of limited periods, sometimes one month and sometimes two months. As the workman has a weaker bargaining power such a contract is against public policy. The petitioner also gave the names of the persons who had been appointed after him in order to show that there was work on which the employer could have engaged him.
2. The claim was contested by the management and firstly it was submitted that the workman was employed for a fixed term as the management had received an order for supplying wagons to Vietnam and for this extra work he was engaged for a short duration and the last contract was upto March 8, 1993. The extra work was over and the services of the petitioner were no longer required, The petitioner w25Forked only for 94 days in all and could not claim the benefits of Section 25F of the Industrial Disputes Act. It was admitted that the petitioner was treated under the provisions of the ESI Act and this treatment continued even after the terms of the contract expired because the Act provides this facility. The contention that some other labour was engaged in his place was also denied. The learned Judge, Labour Court examined the material on record and also the affidavits which were filed by the parties and held that there was no violation of any Standing Orders and there was no unfair labour practice. Referring to the contracts on the basis of which the petitioner was employed it was held that after the expiry of contractual period the services automatically came to an end and this was not retrenchment. The employment was for a short duration in order to meet the extra work on account of the supply of wagons to Vietnam. It was further held that the period during which the petitioner remained under the treatment under the provisions of the ESI Act could not be counted as service rendered with the employer and as such the petitioner has worked only for 94 days and has not completed 240 days so as to make Section 25F-F of the Industrial Disputes Act applicable. Certain rulings were relied in arriving at this conclusion.
3. Both the parties have raised the same arguments which were raised before the Labour Court.
4. The learned counsel for the petitioner placed reliance on 1989 (1) RLR 636 wherein it was held that at the time of retrenchment of the workmen the petitioners who were senior to others were not given offer for re-employment before juniors were re-employed. Subsequently the juniors who were re-employed were also removed after about four months and were no more in employment of the non-petitioner. It was held that the petitioners could not seek re-employment but they were entitled to wages as compensation for a period of four months for which the three juniors were given re-employment. In this case the services of the petitioners had been terminated and in the written order it was stated that when the occasion arose in future they would be re-employed according to their seniority. However at the time of re-employment they were not given any opportunity to offer themselves for re-employment. Another case relied upon is Narendra Kumar and Ors. v. State of Punjab and Ors. (1985-I-LLJ-337) (SC). This case relates to absorbing a person in employment after Apprentice Training. Referring to Section 22(2) of the Apprentices Act, 1961 it was held that on occurrence of vacancy a reciprocal binding is created under Section 22(2) of the Act as well as purely on the basis of the contract of apprenticeship on the part of the employer to offer employment and on the part of the apprentice to accept the same. This was not the case of the petitioner before the Labour Court. It was not the case of the petitioner before the Labour Court that he was legally entitled to employment after completion of the apprenticeship because in that case the terms of the contract of apprenticeship were very relevant. The petitioner approached the Labour Court on the basis of illegal termination of services and not re-employing when the juniors to him were taken in employment.
5. The respondent has placed reliance on a D.B. decision of this Court in Moti Singh v. Factory Manager, CIIMCO reported in 1989 (53) FLR 900. The facts and circumstances of this case are exactly similar with the present one. It was a case where the agreement of service was to expire on December 31, 1981 and prior to this workman met with an accident on December 24, 1981. The petitioner remained sick and when he submitted his joining report on May 10, 1982 he was not allowed to resume his duties. It was held that when the termination of services follows automatically either on account of contract or Standing Orders, then the provisions of Section 73 of the Employees' State Insurance Act, 1948 did not apply even if he remained sick during the last days of service. In arriving at this conclusion this Court relied upon the Supreme Court decision in Buckingham Carnataka Company v. Venkatiya (1963-II-LLJ-638). It was held that Section 73(1) of the ESI Act prohibits punitive action for all kinds of misconduct only during period of illness for which employee has received sickness benefits. It has been further held that where termination of the employee's services follows automatically either from a contract or from a Standing Order by virtue of the employee's absence without leave for the specified period, such termination is not the result of any positive act or order on the part of the employer, and so to such a termination the prohibition contained in Section 73(1) would be inapplicable.
6. On the basis of the arguments advanced on behalf of both the sides and the decisions cited by them, it can be said that the petitioner was under contractual employment and this contract of employment came to an end on March 8, 1983 and till this time he had worked only for 94 days. Hence the provisions of Section 25F of the Industrial Disputes Act would not be applicable.
The termination of the services either automatically or by an act after expiry of the contractual period is not in the nature of a punishment, is not a retrenchment so as to attract the provisions of Section 25H-H of the Industrial Disputes Act. The respondent has been able to satisfy that the contractual employment was for meeting extra work which the company had to perform and the contractural employment for a short duration was not on account of any unfair labour practice. After the term the contract expired, the company was no longer under obligation to retain the services of the workman. I find no error in the findings which have been arrived at by the learned Judge of the Labour Court so as to call for any interference in this writ petition. The writ petition is accordingly dismissed.