Punjab-Haryana High Court
Bharat Bhushan vs The Haryana Handloom Weavers Apex ... on 14 March, 1996
Equivalent citations: (1996)113PLR793
Author: T.H.B. Chalapathi
Bench: T.H.B. Chalapathi
JUDGMENT T.H.B. Chalapathi, J.
1. The petitioner filed this writ petition invoking the certiorarial jurisdiction of this Court under Article 226 of the Constitution of India for quashing the award passed by the Industrial Tribunal-cum-Labour Court, Rohtak.
2. The petitioner was appointed as a Salesman on ad hoc basis of the Ist respondent-Society on 2.1.1986 for a period of 89 days. Then his services were extended from 3.4.1986 to 1.8.1996. Again he was appointed on 17.7.1986 and worked till 14.10.1986. Again the petitioner was engaged on 29.10.1986 and worked as Salesman till 28.1.1987. Again he was appointed on 10.2.1987 and worked till 23.3.1987. Thereafter he was appointed as Clerk and worked as such till 1.7.1987. The services of the petitioner were terminated with effect from 1.7.1987.
3. Admittedly, the petitioner worked for more than 240 days in a calendar year. As already observed, the services of the petitioner were terminated w.e.f. 1.7.1987. Therefore, the petitioner raised an industrial dispute, which has been referred to Industrial Tribunal cum-Labour Court, Rohtak. By an order dated 23.8.1993, the Industrial Tribunal held that the termination of the services of the petitioner are violative of the mandatory provisions of Section 25-F of the Industrial Disputes Act and accordingly ordered his reinstatement, but the Industrial Tribunal passed another award dated 25.4.1994 dismissing the claim of the petitioner on the ground that the termination of service of the petitioner on the expiry of fixed periods of tenure did not amount to retrenchment and therefore, he is not entitled to the benefits of Section 25-F of the Act in view of sub clause (bb) of Section 2(oo),
4. Challenging the award passed on 25.4.1994, the petitioner filed the above writ petition.
5. Learned counsel for the petitioner contended that the Tribunal reviewed its earlier order dated 23.8.1993 which is not permissible under law. Therefore, the subsequent order dated 25.4.1994 is liable to be set aside. He, therefore, contended that sub-clause (bb) of Section 2(oo) is not applicable to the case on hand and the petitioner has admittedly worked for more than 240 days in a calendar year and, therefore, the termination of services of the petitioner without following the procedure Under Section 25-F of the Industrial Disputes Act is illegal and is liable to be set aside.
6. There is no dispute that the Industrial Tribunal-cum-Labour Court, Rohtak passed an award in favour of the petitioner on 23.8.1993. It appears that the said award is an ex-parte award, but it does not appear that the society namely the Haryana Handloom Weavers Apex Co-operative Society filed any application to set aside the ex-parte award and any order has been passed on such application. The record does not show as to how and under what circumstances the Tribunal passed the subsequent order dated 25.4.1994 in the same Reference No. 327 of 1992. From the reading of both the awards which are filed as Annexure P-18 and P-19 alongwith the writ petition, it appears that there are two reference made by the Labour Deptt. in respect of the same subject matter. The first reference appears to have been made for adjudication vide Labour Department Endst. No. S.O.V./Panipat/90-88/28086-91 dated 6.6.1988. In the reference following question has been referred to the Industrial Tribunal: -
"Whether the termination of services of Shri Bharat Bhushan is justified and in order. If not, to what relief he is entitled."
The other reference made by the Labour Deptt. vide Notification No. 3/25/90- 3-lab, dated 29.10.1991 is in respect of the following questions :-
"Whether the termination of services of Shri Bharat Bhushan is justified and in order? If not, to what relief he is entitled."
Thus it appears that there are two references made by the Labour Department under sub caluse (c) of sub section (1) of Section 10 of the Industrial Disputes Act, 1947. But in both the references the question referred to is the same and both the references have been taken on file as Reference No. 327 of 1992 by the Labour Court. Therefore, when an order was passed in earlier reference on 23.8.1993, the Labour Court cannot deviate from the same order. Further both the orders have been passed by the same Presiding Officer namely Shri P.L. Khanduja. Thus it appears that the same Officer has passed conflicting orders, one in favour of the petitioner and another against him. I am of the opinion that such a course is not permissible and therefore, his subsequent order dated 25.4.1994 is liable to be set aside. Further I am of the opinion that sub-clause (bb) of Section 2(oo) of the Act is not applicable to the present case. Admittedly, the petitioner has been appointed from time to time and he worked for more than 240 days in a calendar year. Annexures P-1 to P-11 are the orders of appointment appointing the petitioner every time for a period of 89 days. The orders of appointment do not show that the petitioner has been appointed for any specific work though the orders of appointment contained a clause that the services of the petitioner can be terminated at any time without assigning any reason thereof.
7. It has been held in State Bank of India v. N. Sundara Money, (AIR 1976 S.C. 1111) as follows.
"A break-down of Section 2(oo) unmistakably expends the semantics of retrenchment. "Termination .... for any reason whatsoever are the key words. Whatever the reason, 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 after by the active step of the master or running out of the stipulated term. To protect the weak against the strong this policy of comprehensive defintion has been effectuated. Termination embraces not merely the act of termination by the: employer, but the fact of termination how soever produced. May be, the present may be a hard case, but we can visualise abuses by employers, but suitable verbal devices, circumventing the armour of Section 25-F and Section 2(oo) without speculating on possibilities, we may agree that 'retrenchment' is no longer terra incognita, but area covered by an expansive definition. It means to end, conclude cease. In the present case, the employment ceased, concluded, ended, on the expiration of nine 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 25-F (b) is inferable from the proviso to Section 25-F(i) (sic) (Section 25-F(a) - True, the action speaks of retrenchment by the employer and it is urged that some act of volation by the employer to bring about the termination is essential to attract Section 25-F and automatic extinguishment of services by effluxion of time cannot be sufficient".
8. It is no doubt true that sub clause (bb) of Section 2(oo) has been added subsequent to the above decision, but I am of the opinion that the principles laid down in the above decision are equally applicable even after the introduction of Section 2(oo) (bb).
9. In Chennaiah v. Divisional Engineer, APSR Corporation (1987) LIC 1259 AP) Justice Jeevan Reddi (as his Lordship then was) held that "the second part of sub clause (bb) of Section 2(oo) contemplated a contract which expressly provides for certain circumstances or situations in which the contract can be terminated. The 2nd part of sub-clause does not add any unilateral right reserved for the employer to terminate the services of ah employee at any time and that too without any notice or without any reason. The learned Judge observed as follows:-
"A literal or liberal interpretation of clause (bb) may result in depriving the workman of the protection by the Act. The said clause has to be read and understood having regard to and in the light of the scheme and object of the Act. I am of the considered opinion that a termination simpliciter purporting to have been made in pursuance of the above nature cannot be termed as termination under a stipulation contained in the contract within the meaning of clause (bb). It, therefore, follows that the petitioner's termination amount to retrenchment and inasmuch as he has admittedly put in a service of more than 240 days he is entitled to the benefit of Section 25-F of the Act."
10. It has been held by the High Court of Bombay in Pilip Hanumantrao Shinko and Ors., (AIR 1990 Labour I.C. 100) as follows:-
"As stated above, the terminations which are included" in sub-clause (b) are those which are brought about either because of non-renewal of the contract or because of expiry of time stipulated in the contract of employment. It needs no further explanation, but the probability of the employer exploiting the labour by giving fixed tenure appointments can never be overruled and, therefore, it would be improper and unwise simply to decide the nature of employment on the basis of letter of appointment issued by the employer. The nature of employment has to be determined with reference to the nature of duties performed by the workman and type of job the workman was entrusted with".
11. In. K. Rajendran v. The Director (Personnel) The Project and Equipment Corporation of India Limited (1992 LIC 909), it has been held as follows:-
"But there is nothing in sub clause (bb) which enable an unscrupulous employer to terminate the service of the workers on the ground of non renewal of their contact even when the work for which they were employed subsists. The exception as contained in sub-cl (bb) will have to be strictly construed and Clause (bb) should be made applicable only to such cases where the work ceased with the employment or the post itself ceased to exist. Clause (bb) cannot be made applicable to a case when the employer resorts to contractual employment as a device to simply taken it out of clause (oo) of Section 2 of the Act notwithstanding the fact that the work for which the workmen are employed continues or the nature of duties which the workman was performing are still in existence.'
12. This Court in Kurukshetra Central Co-operative Bank Limited, Kurukshetra v. State of Haryana, (1993(1) SCT 109) held as follows :-
"In similar circumstances, a Division Bench of this Court to which I was a party, in Haryana State Federation of Consumer's Co-operative wholesale Stores Ltd. v. Presiding Officer Labour Court, Chandigarh, 1992(1) SCT 697 held that "the provisions of Section 2(oo) (bb) are to be read alongwith Section 25-F 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 labour practice if his services are terminated. In that case, Section 25-F (ii) of the Act would cover to a case and the workman would be entitled to retrenchment compensation if his services were to be terminated".
13. In the light of the above discussion, I am of the opinion that the termination of services of the petitioner on the ground that the order of appointment provides for termination on the expiry of a particular period and, therefore, the termination in the case does not amount to retrenchment, cannot be accepted.
14. In view of the foregoing discussion I am of the opinion that the writ petition deserves to be allowed.
15. Accordingly, I allow the writ petition, set aside the orders of the Industrial Tribunal-cum-Labour Court and direct the reinstatement of the petitioner with full back wages and continuity of service. No order as to costs.