Bombay High Court
Alexandar Yesudas Maikel vs Perfect Oil Seals And Irp & Ors. on 22 March, 1995
Equivalent citations: [1995(70)FLR1086], (1996)ILLJ533BOM
Author: B.N. Srikrishna
Bench: B.N. Srikrishna
JUDGMENT
1. This Writ Petition under Article 227 of the constitution of India impugns the Order of the second Labour Court, Pune, dated 13th March, 1987 made in Complaint (ULP) No. 148 of 1986 and the Revisional Order of the Industrial Court dated 4th August, 1988 in Revision Application (ULP) No. 14 of 1987, under the precisions of the Maharashtra Recognition of Trade Unions and Prevention of Unfair labour practices Act. 1971 (hereafter referred to as "the Act").
2. The petitioner was in the employment of the First Respondent for about a year, at the end of which he resigned from service. The petitioner was appointed off and on by the First Respondent, which appeared to be periodically interrupting the service of the petitioner, probably with a view to disrupt continuity of service. The petitioner was given a letter of appointment that he would be employed for a period of 7 months from 20th April, 1985 to 19th October, 1985. After 19th October, 1985, the petitioner was neither removed from service, nor was the contract of employment demand to have run out, bringing about disruption of the employer-employee relationship. For some inscrutable reason, the First Respondent continued the petitioner in service till 22nd November, 1985, on which date, a letter of termination of service was served on the petitioner terminating his service with effect from 22nd November, 1985. After a gap of about 10 days, the petitioner was re-appointed on 2nd December, 1985, for a fresh period of 6 months. When the six month period ended on 1st May 1986, the petitioner was allowed to continue in service till 31st May, 1986, without any further ado. On 31st May, 1986, he was served with letter terminating his service with effect from the same date. The petitioner challenged the termination of his service as arbitrate illegal, mala fide and amounting to an unfair labour practice by his Complaint (ULP) No. 148 of 1986. By its Order dated 14th March, 1987, the Labour Court held that the termination of his service did not amount to "retrenchment", as it specifically fell within the newly added clause (bb) of Section of 2(oo) of the Industrial Disputes Act, 1947. In this view of the matter, the Complaint of the petitioner was dismissed by the impugned order of the Labour Court dated 13th March 1987. The Complainant moved the Industrial Court in revision by his Revision Application (ULP) No. 14 of 1987. The Industrial Court in its impugned Order dated 4th August, 1988, asserted the reasoning within appealed to the Labour Court and further held that the petitioner had filed to prove that he had completed 240 days' service and, since the burden of establishing the said fact lay on the petitioner, the petitioner was not entitled to the benefit of Section 25-F of the Industrial Dispute Act, 1947. Therefore, his application was dismissed. Hence, this writ petition.
Wednesday, the 22nd March, 1995.
3. A reading of the Orders of the Labour Court and the Industrial Court impugned in this Writ Petition shows that both the courts below have concluded, firstly, that the petitioner could not be said to be in continuous service for one year and, secondly, that even if there was termination of his service, it did not amount to "retrenchment" within the meaning of section 2(oo) of the Industrial Disputes Act, as it feel within the exception to the said definition provided in clause (bb). In my view, both conclusions are erroneous in law. As to "continuous service". Section 25-B of the Industrial Dispute Act defines "continuous service", for the purpose of chapter VA of the Industrial Disputes Act. Since it is not in dispute that the case of the petitioner would not fall within sub-section (1) of Section 25B we need consider only sub-section (2) of Section 25B particularly clause (a) thereof. By a fiction of law, clause (b) of sub-section (2) of Section 25B provides that a workman shall be deemed to be in continuous service for a period of one year if, during the period of 12 calendar months proceeding the date with reference to which the calculation is to be made, he had actually worked under the employer for not less than 240 days. The explanation to this sub-section indicates that absence on account of contingencies enumerated in clauses (i) to (iv) shall not be treated as absence from duty. In the Petitioner's case, the petitioner's service was finally terminated on 31st May, 1986. During the period of 12 months prior to the said date, i.e. from 1st June, 1985 to 31st May, 1986, the only period during which the period from 22nd November, 1985 to 1st December, 1985. Otherwise he was continuously in service. Both courts below have ignored the materialon record which shows that the petitioner has completed more than 240 days working during the said period. Particularly, the Industrial Court seems to have ignored the documents on record which evidence this situation. On 2nd April, 1987 the petitioner made an application of production of the Muster-sum-Wage Registers of the First respondent for the period 1st September, 1984 to 31st May, 1986. They were actually produced for inspection, and, after taking inspection, the advocate of the petitioner filed a precept in the Labour Court on 3rd March, 1987 showing the results of his inspection. It showed that, during the period January, 1985 to May, 1986, the total number of working days put in by the petitioner in the employment of the First Respondent was 271. Surprisingly, neither Court paid attention to this document and both Courts assumed that the petitioner had failed to discharge the burden of proving 'continuous service'. In my view, the petitioner did all that was legally possible for him to do and has sufficiently discharged the burden of showing that he had worked for more than 240 days during the relevant period. I am, therefore, of the view that the petitioner had one year's continuous service within the meaning of Section 25B of the Industrial Disputes Act on 31 May, 1986, when his service was terminated.
4. The next question to be considered is - Whether the termination of the service of the petitioner by the Order dated 31st May, 1986 did not amount to retrenchment' as it fell within the exclusory clause (bb) of Section 2(oo) ? The Industrial Court summarized the terms of appointment of the petitioner in paragraph 12 of the impugned order and pointed out that the recital in the letters of appointment indicated that the petitioner was employed on purely temperate basis for the period 20th April, 1985 to 19th October 1985 and from 2nd December, 1985 to 1st May, 1986. From this the industrial Court came to the conclusion that the termination of the petitioner's service was neither the result of non-renewal of the contract of employment, not because the contract was terminated under a stipulate in that behalf contained in the contract. In my judgment, both conclusions are erroneous. In first place, it is erroneous to say that the petitioner's service came to an end by the contract running out. The first contract run out on the expiry for 6 months from 19th April, 1985, i.e. on 18th October, 1985. Admittedly, the petitioner was not removed from service contemporaneously with the expiry of 6 months, but was allowed to continue in service, as before, till his service was expressly terminated by the order of 22nd November, 1985, with effect from 22nd November, 1985.
5. Turning to the second period of service of the petitioner, it ended on 1st May 1986. It is not in dispute that the petitioner was not removed from service on 1st May 1986, but was allowed to continue till 31st May, 1986, on which date, by a specific letter dated 31st May, 1986, he was removed from service. The termination of the petitioner's service was effected either by the letter dated 22nd November, 1985 or by the letter dated 31st May, 1986, and neither letter claimed that it was under any of the two contingencies contemplated by clause (bb) of Section 2(oo) of the Industrial Disputes Act. In any event, one cannot lose sight of the fact that clause (bb) has itself been restrictively interpreted and the judicial consensus appears to be that, if the post continues and the work continues, clause (bb) cannot be said to operate as a charter for unscrupulous employees to jettison their workmen. See in this connection Dilip Hanumatrao Shirke & Ors v. Zilla Parishad, Yavatmal & Ors,. 1989 II CLR 447, State Bank of India Nagpur & Anr. 1990 II CLR 793 and K. Rajendran v. Dir. (Per.) Project & Equipment Corporation if India Ltd. New Delhi & Anr. 1992 I CLR 462.
6. In my judgment, the termination of the petitioner's service on 31st May, 1986 amounted to "retrenchment" as defined in Section 2(oo) of the Industrial Disputes Act as it did not fall within the exception clause (bb), but fell within the main body of the definition of the section. Since it is not in dispute that the provisions of Section 25F were not compiled with, the retrenchment was, ab initio, illegal and invalid. The petitioner was, therefore, entitled to continue in service. The writ petition is liable to be allowed.
7. In the result, petition is allowed, the impugned Order of the Labour Court dated 13th March, 1987 in Complaint (UPL) No. 148 of 1986 and that of the Industrial Court dated 4th August, 1988, in Revision Application (UPL) No. 14 of 1987, are hereby quashed and set aside. the First respondent is directed to reinstate the petitioner in service with continuity and pay him back wages from 1st June, 1986 at such rates as he would have been entitled to if his service had not been discontinued. The reinstatement and payment of back-wages shall be effected within a period of 6 weeks from today. The first respondent to pay a sum of Rs. 500/- as quantified costs to the petitioner.
8. Rule made absolute accordingly.
9. Certified copy expedited.