Madhya Pradesh High Court
National Thermal Power Corporation vs K.K. Shrivastava And Ors. on 23 September, 2002
Equivalent citations: [2003(97)FLR1065], (2003)IILLJ1001MP, 2003(2)MPHT175
ORDER S.L. Jain, J.
1. Undaunted by the failure before the Labour Court, Sidhi, in Case No. 8/94, MPIR, before the Industrial Court, in Appeal No. 501/97, MPIR and before this Court in Writ Petition Nos. 3956 and 3945 of 1999, the appellants have filed these Letters Patent Appeal Nos. 373 and 372 both of 2002, under Clause 10 of the Letters Patent challenging the common order of the learned Single Judge passed in W.P. Nos. 3956/99 and 3945/99.
2. Both the appeals referred to above, i.e., L.P.A. No. 373/2002 (National Thermal Power Corporation v. K.K. Shrivastava and Ors.) and L.P.A. No. 372/2002 (National Thermal Power Corporation v. D.K. Mishra and Anr.) are being decided by this judgment, since common order was passed by the learned Single Judge and common questions of law and fact are involved therein.
3. Reference is being made to the facts in L.P.A. No. 372/2002. The respondent No. 1 filed an application before the Labour Court under Section 31 (3) of the M.P. Industrial Relations Act (for short 'Act') challenging the termination of his services. His case before the Labour Court was that he was engaged as Data Entry Operator from 18-1-91 to 15-2-94 in appellant-Corporation. From 16-2-94 the employer stopped taking work from him. The appellant was engaged in the construction and distribution of electricity and had employed more than 100 workmen therefore, provisions of Act, were applicable. After three months work on mustor roll, appellant started taking work from respondent No. 1 on contract basis just to defeat the provision of law. He worked from 18-1-91 to 15-2-94 in the appellant's establishment and since he had worked for 240 days in a calendar year he acquired the status of permanent employee and therefore, his service could not have been terminated without notice and without payment of retrenchment compensation.
4. The appellant combatting the claim of the employee stated that the respondent was engaged from 18-1-91 to 17-4-91 on contingency basis and later on as and when required, on contract basis. It was stated that since respondent No. 1 did not work for more than 240 days in a calendar year the provisions of Section 25F of the Industrial Disputes Act, 1947 (for short' Act-of 1947') were not attracted and there was no question of payment of compensation.
5. The Labour Court found that the respondent No. 1 worked in the establishment of appellant from 18-1-91 to 15-2-94 and after working for more than 240 days in a year he acquired the rights of permanent employee and held that his service could not have been terminated without notice and without payment of retrenchment compensation, it further directed to reinstate respondent No. 1 as Data Entry Operator. However, the backwages were refused.
6. This order of Labour Court was challenged by the appellant by filing Appeal No. 501/97 and also by respondent No. 1 by filing Appeal No. 477/97 before the Industrial Court, Jabalpur. Both these appeals were dismissed by the Industrial Court, Jabalpur by common order dated 19-7-99. Being aggrieved by the judgment of the Industrial Court, the appellant herein filed a Writ Petition No. 3956/99 invoking the extra-ordinary jurisdiction of this Court under Article 226/227 of the Constitution of India. This petition was heard by the learned Single Judge and was dismissed by the impugned order. Being aggrieved by this order dated 10-5-2002, passed by the learned Single Judge, appellants have filed the aforementioned appeals.
7. We have heard Shri N.S. Kale, learned Counsel for the appellant at the admission stage. All the contentions which had been raised before the learned Single Judge have been reagitated before us. The main thrust of the contention of Shri Kale is that work of Data Entry Operator is not a continuous process and it is for this reason that the job was given on the basis of contract whenever the necessity arose. There was no employer and employee relationship between the appellant and the respondent No. 1. He was merely a contractor and was not doing the job as an employee. Shri Kale, contended that the conclusion of the learned Single Judge that the award of contract was nothing but extension of service is without any basis. Non renewal of contract is not retrenchment within the meaning of Section 2(2) of the Act of 1947.
8. It has not been disputed that the respondent No. 1 worked as Data Entry Operator from 18-1-91 to 15-2-94. He was engaged as a muster roll employee from 18-1-91 to 17-4-91 and thereafter he rendered service on contract basis but on the perusal of the record we find that after 17-4-91 also the nature of the duties continued to be the same as were performed while respondent was working on mustor roll. Duty performed by the respondent in both the capacities was the same. Thus, when the veil is lifted it becomes clear that the object of the appellant was to deprive the respondent of the benefit available under the Act of 1947.
9. The appellant camouflaged the appointment of the respondent by awarding a sham contract for the performance of the same duty. This is an unfair labour practice. The appellant cannot take the benefit of their clever device which cannot be said to be bona fide, reasonable and genuine. The material on record does not satisfy our conscience. It was not a simple case of non-renewal of contract. The learned Single Judge has rightly held that the award of contract was merely an extension of service.
10. When the work for which the employee was engaged was not for a fixed duration and it did not cease to exist on the date on which the employment was terminated and the employee was appointed on contract basis and the employer engaged certain employees for the same work, the termination without notice would amount to unfair labour practice.
11. When the intention is to by pass the provisions of the Act, action of the employer may be deemed to be tainted by malice. The subterfuge involving non-employment of certain employees continuously but offering them work on contract basis characterising them as contractors cannot be approved.
12. The respondent has worked for more than 240 days in a year continuously immediately preceding the order of termination of service. For the purpose of eligibility for relief under the provisions of Section 25F of the Act of 1947, it is not necessary for the workman to work in the same capacity for 240 days. In fact the respondent has worked for more than 240 days and asking him to work on contract basis was only a device to defeat the provisions of law. Workman completed 240 days of service under the same employer, hence he is entitled to the benefit of Section 25F of the Act of 1947.
13. As a matter of fact, where by arithmetic count the workman is able to prove that he has completed more than 240 days, the relief of reinstatement has to be granted. We have to note that in Santosh Gupta v. State Bank of Patiala (AIR 1980 SC 1219) the earlier view expressed in State Bank of India v. Sundara Money (AIR 1976 SC 1111) and Hindustan Steel Limited v. The Presiding Officer, Labour Court, Orissa (AIR 1977 SC 31) was approved. The learned Single Judge did apply with care and caution the doctrine of lifting of veil in Industrial Jurisprudence and recorded that in the contextual fact and upon lifting of the veil the respondent worked for more than 240 days. The payment on contract basis was thus a mere camouflage which could be easily pierced and employer and employee's relations between the appellant and respondent easily visualized. Respondent who worked for more than 240 days, cannot be retrenched. The above view stands reiterated in Secretary, H.S.E.B. v. Suresh (AIR 1999 SC 1160). The relevant observations are as under :--
"As noticed above Draconion concept of law is no longer available for the purpose of interpreting a social and beneficial piece of legislation specially on the wake of the new millennium. The democratic polity ought to survive with full vigour : socialist status as enshrined in the Constitution ought to be given its full play and it is in this perspective the question arises is it permissible in the new millennium to decry the cry of the labour force desirous of absorption after working more than 240 days in an establishment and having their workings supervised and administered by an agency within the meaning of Article 12 of the Constitution - the answer cannot possibly be in the affirmative -the law Courts exist for the society and in the event law Courts feel the requirement in accordance with the principle of justice, equity and good conscience, the law Courts ought rise up to the occasion to meet and redress the expectations of the people......"
The Labour Court, Industrial Court and learned Single Judge have given concurrent finding that the duty performed by the respondent as Data Entry Operator remained the same as it was at the time he was engaged on muster roll and even after he had been engaged on contract. We cannot take a different view in this appeal, particularly when the finding is not perverse and is based on due appreciation of evidence in proper perspective.
14. In the aforesaid premises the impugned judgment is unassailable. We do not find any merit in both these appeals, which are accordingly dismissed in limine.