Karnataka High Court
Telecom District Manager, Belgaum vs A.A. Angali And Others on 9 February, 2000
Equivalent citations: [2000(87)FLR97], ILR2000KAR2963, 2000(6)KARLJ327, (2000)IILLJ1433KANT
Author: N.S. Veerabhadraiah
Bench: N.S. Veerabhadraiah
JUDGMENT
1. These intra-Court appeals are directed against the order dated 16-9-1999 passed by the learned Single Judge in W.P. No. 30044 of 1999 and connected cases modifying the judgment and award dated 21-6-1999 by directing reinstatement without back wages as against reinstatement with 50% back wages passed by the Central Industrial Tribunal.
2. It is not in dispute that the respondents-workmen were employed by the Telecom Department as casual labourers in connection with extension of telephone facilities in the district of Belgaum. Their services had been utilised for digging, laying of coaxial cable and other sundry works. It is also not in dispute that the said project had been completed long back some time in the year 1986-87. As found by the learned Single Judge, after a lapse of 7 to 9 years, disputes were referred to the Tribunal to ascertain as to whether termination of the services of the workmen in question was justified and legal.
3. Though there appears to be some dispute about the length of period for which the services of the workmen concerned had been availed on daily wages but certainly no conclusive evidence except oral testimony has been placed to prove the length of their services in the project. So far as the department is concerned, as noticed by the learned Single Judge, it was not in a position to produce the relevant documents on the said aspect since as per the statutory rules the department was required to maintain the Nominal Muster Rolls (NMR) only for a period of 5 years. Admittedly, in these cases, reference was made after a lapse of 7 years. In this connection, Mr. Y. Hariprasad, learned Counsel for the appellant, places the relevant extract of Appendix-3 in Swamy's Compilation of Posts and Telegraphs, Financial Handbook, Volume III-Part, according to which, the period for preservation of Muster Rolls has been prescribed as five years.
4. In the light of the above, two short questions, which arise for our consideration are that (i) whether the termination of service of the workman who had been employed for completion of a project can be said to be 'retrenchment' within the meaning of Section 2(oo) of the Industrial Disputes Act, 1947 (in short the 'Act') and, (ii) whether the dispute, which was referred after a period of seven years, was entertainable by the Industrial Tribunal?
5. So far as the first question is concerned, it is necessary to refer to Section 2(oo)(bb) of the Act, which defines 'retrenchment'. The relevant provisions thereof are extracted hereunder:
"2(oo) "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)xxx xxx xxx;
(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".
6. From the above provision, it is quite clear that termination of service of a workman as result of non-renewal of contract of employment between the employer and the workman concerned on expiry of the contract does not amount to retrenchment requiring compliance of Section 25F of the Act.
7. In the present case, admittedly, the workman concerned had been engaged on daily wages only for the purpose of completion of the project undertaken by the Telecom Department for laying coaxial cables in the Belgaum District. It is not in dispute that the said project had been completed in 1986-87 itself. Therefore, ipso facto their services got terminated because they had been engaged only for the purpose of completion of the project and not against any existing permanent posts. This aspect has also been clarified by the department in its Circular dated 30-3-1985 (Annexure-B). Paragraph 3 of the said Circular reads thus:
"These orders would, however not apply to the coaxial cable laying work in the projects organisation and in line dismantling/constructions work in the electrification projects circle. The casual labour for such works in these units could be engaged only for specific jobs and retrenched as soon as the work is over".
8. We may observe that neither the Tribunal nor the learned Single Judge has taken note of the above stipulations contained in the circular at Annexure-B.
9. For the aforesaid reasons, we hold that non-providing of work to a workman on completion of project does not amount to 'retrenchment' as defined under Section 2(oo) of the Act and therefore there was no legal necessity of compliance of Section 25F of the Act. This view of ours is duly substantiated by the judgment of the Supreme Court in the cases of Ghaziabad Development Authority and Others v Vikram Chaudhary and Others and Executive Engineer (State of Karnataka) v K. Somasetty and Others.
10. In the case of Vikram Chaudhary, supra, it has been held by the Supreme Court that:
"On completion of the existing projects in which the respondents are working, if the appellant undertakes any fresh project, instead of taking the services of fresh hands at the place of the new project, the appellant needs to take the services of the existing temporary daily wage respondents. In the event of the appellant not having any project on hand, the obligation to pay daily wages to the respondents does not arise".
11. In the case of K. Somasetty, supra, it has been held by the Supreme Court that--
"The function of public welfare of the State is a sovereign function. It is the constitutional mandate under the Directive Principles, that the Government should bring about welfare State by all executive and legislative actions. Under these circumstances, the State is not an 'industry' under the Industrial Disputes Act. Even otherwise, since the Project has been closed, the respondent has no right to the post since he had been appointed on daily wages".
12. So far as the second question is concerned, admittedly, there was undue delay of 7 to 9 years in raising the dispute before the Tribunal. Therefore for the reasons recorded in the cases of M/s. Shalimar Works Limited v Their Workmen and in the case of Ratan Chandra Sammanta v Union of India, the reference is not maintainable because of laches committed in seeking the reference.
13. Recently, the above principles have again been reiterated in the case of Nedungadi Bank Limited v K.P. Madhavankutti and Others. In para 6 whereof, it has been held that--
"Law does not prescribe any time-limit for the appropriate Government to exercise its power under Section 10 of the Act. It is not that this power can be exercised at any point of time and to revive matters which had since been settled. Power is to be exercised reasonably and in a rational manner. There appears to us to be no rational basis on which the Central Government has exercised powers in this case after lapse of about seven years of order dismissing the respondent from service. At the time reference was made no industrial dispute existed or could be even said to have been apprehended. A dispute which is stale could not be the subject-matter of reference under Section 10 of the Act. As to when a dispute can be said to be stale would depend on the facts and circumstances of each case. When the matter has become final, it appears to us to be rather incongruous that the reference be made under Section 10 of the Act in the circumstances like the present one. In fact it could be said that there was no dispute pending at the time when the reference in question was made. The only ground advanced by the respondent was that two other employees who were dismissed from service were reinstated. Under what circumstances they were dismissed and subsequently reinstated is nowhere mentioned. Demand raised by the respondent for raising industrial dispute was ex facie bad and incompetent".
14. Accordingly, the judgment and award of the Tribunal is quashed and the order of the learned Single Judge is set aside.
15. In the result, W.A. Nos. 7505 of 1999 to 7514 of 1999 are allowed and W.A. No. 8011 of 1999 and W.A. No. 8012 of 1999 are dismissed. No costs.