Kerala High Court
Jayabharat Printers And Publishers ... vs Labour Court And Ors. on 9 November, 1992
Equivalent citations: (1994)IILLJ373KER
JUDGMENT P.K. Shamsuddin, J.
1. In this original petition, the petitioner challenges Exhibit P-2 award passed by the first respondent A dispute between the petitioner and Shri K. Suresh Kumar was referred to the first respondent by the Government for adjudication.
2. It is the case of the workman that he was appointed as a Binder in the printing press on December 3, 1985, on a monthly salary of Rs. 400 and later the salary was increased to Rs. 500 and while he was thus working, on October 10, 1987, his service was terminated without giving either any notice or notice pay or retrenchment compensation. It was alleged that the workman had more than two years' uninterrupted service and the management cannot terminate his service without complying with the mandatory provisions contained in Section 25-F of the Industrial Disputes Act. It is also the workman's case that while he was working continuously under the management, the management used to issue fresh appointment orders at periodical intervals and used to obtain his signatures on it just to make it appear that there is break in service and this is done by the management to deprive this workman of the right of permanency. It is also alleged that the workman was forced to sign those documents since the management threatened that if the workman did not sign therein he will be ousted. It is in these circumstances, the workman sought a direction to get reinstatement in the service with continuity of service.
3. The management did not dispute that the service of the workman was terminated on October 10, 1987, but denied the averment that right from December 3, 1985, till his service was terminated on October 10, 1987, he had continuous service. It is their case that the contract between the worker and the management expired on October 10, 1987. It is also averred that three or four times this worker was appointed in the binding section when there is heavy work, on contract basis and his appointment was terminated on the expiry of the period of contract. It is alleged on seven occasions for a certain number of days when work was available of fixed periods he was engaged and his service was automatically terminated on the expiry of periods for which the appointments were made.
4. On going through the evidence adduced, the Labour Court came to the conclusion that the worker was continuously engaged from 3rd December, 1985 onwards and Exhibit M-4 series which are periodical appointment orders were issued by the management just to make it appear that they were only temporary orders in order to deprive him of the right of permanency. In that view of the matter, the Labour Court found that the termination was without complying with the provisions of Section 25-F of the Industrial Disputes Act and, therefore, the termination was invalid. Accordingly, an award was passed directing the management to reinstate the workman with back-wages from October 10, 1987 and continuity of service.
5. In this original petition, the finding of the Labour Court that the worker had continuous service from December 3, 1985, was challenged. Learned counsel for the petitioner contended that the said finding is perverse and it is opposed to the documentary evidence adduced in the case and, therefore, it is liable to be interfered with. Learned counsel heavily relied on Exhibit M-4 series which are the appointment orders. A specimen of one appointment order has been produced as Exhibit P-1 along with the original petition. The appointment order has been made in a printed form. Learned counsel also pressed into service Section 2(oo)(bb) of the Industrial Disputes Act and argued that in the light of the provisions contained therein, the termination of the service of the worker on the expiry of the contract period will not amount to retrenchment. Learned counsel contended that as it is not a retrenchment, the petitioner will not be entitled to the benefit of Section 25-F.
6. Learned counsel appearing for the second respondent-worker, however, contended that the second respondent had continuous service of more than two years and he is entitled to the benefits of Section 25-F of the Industrial Disputes Act According to learned counsel, Exhibit M-4 series are created with ulterior motive by obtaining signatures at periodical intervals so as to make it appear that there is break of service and that it was a contract appointment for a specified period.
7. A counter-affidavit has been filed on behalf of the second respondent. It is stated therein that Exhibit M-4 series are contradicted by other documents produced by the management It is averred in paragraph 9 that the Employees' State Insurance return marked as M-ll shows that the workman worked for 520 half days during the period from December 3, 1985, to October 10, 1987 and paid contribution for that period. It is vehemently contended based on these demands, that Exhibit M-4 series cannot be genuine documents.
8. It is true that under Section 2(oo)(bb), the termination of service as a result of non-renewal of contract of employment between the employer and the workman concerned on its expiry will not amount to retrenchment So the question to be considered is whether the contentions raised by the management that the engagement is a contract employment for specified periods and the services were terminated on the expiry of such periods and reappointments were made on contract basis and, therefore, the termination of service of such worker on the expiry of the period of contract does not amount to retrenchment within the meaning of Section 2(oo)(bb) of the Industrial Disputes Act is correct The workman has given evidence that Exhibit M-4 series do not reflect the real nature of the employment, that he has worked continuously and the Exhibit M-4 series were obtained under threat of deprivation of employment. This story spoken to by the worker was accepted by the Labour Court. The gaps during which he was out of employment according to Exhibit M-4 series are not very wide. It is not as if at a particular period, there was excess work and therefore to meet the emergency such a contract employment was made. The nature of the employment and the gaps between the periods would indicate that the conclusion arrived at by the Labour Court that it was a continuous engagement, is reasonable. In the counter affidavit filed by the second respondent, it has been pointed out specifically that the entries in Exhibit M-ll would contradict Exhibit M-4 series. This aspect has not been considered by the Labour Court, though those documents were produced before the Labour Court However, no reply affidavit has been filed contradicting this averment. Even eschewing this material, it cannot be said that the view expressed by the Labour Court is perverse or that no reasonable person will come to such a conclusion. In this context, it would be profitable to refer to a decision of the single Judge of the Bombay High Court in Dilip Hanumantrao Shirke v. Zilla Parishad Yavatmal (1990-I-LLJ-445) where the facts are almost identical. Considering the question of the applicability of Section 2(oo) (bb), the Court made the following observations (at p. 448):
"....the terminations which are included in Sub-clause (bb) are those which are brought about either because of non-renewal of the contract or because of expiry of tune 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 will have to be determined with reference to the nature of duties performed by the workman and type of job the workman was entrusted with. If the workman is engaged to do a particular job which may require him to do actual work for more than 240 days in twelve calendar months, such employment would be covered by the amended sub-clause because the employment comes to an end with the completion of the work. A stipulation in the contract that the employment would be for a specific period or till completion of the work may also fall within the scope and ambit of this sub-clause. But if the employer resorts to contractual employment as a device to simply take it out of the principal Clause (oo) irrespective of the fact that the work continues or the nature of duties which the workman was performing are still in existence, such contractual engagements will have to be tested on the anvil of fairness, propriety and bona fides. May be that such fixed tenure employments are made to frustrate the claim of the workman to become regular or get himself confirmed as a permanent employee either under the rules applicable to such employment or even under the standing orders. It is always open to the court adjudicating the dispute to examine each and every case in its proper perspective and to protect the workman against the abuse of the amended provision. If this protection is not afforded, the benefit flowing from retrenchment, to which every termination succumbs, would be rendered nugatory. The amended Sub-clause (bb) would apply only to such cases where the work ceases with the employment or the post itself ceases to exist or such other analogous cases where the contract of employment is found to be fair, proper and bona fide....".
9. In a similar situation, a Division Bench of the Allahabad High Court examined the scope of Section 2(oo)(bb). In the course of judgment the Court observed that the nature of employment must be judged by the nature of duties performed and not on the letter issued by the employer, that if contractual employment is resorted to as a mechanism to frustrate the claim, of the employee to become regular or permanent against a job which continues or the nature of duties is such that colour of contractual agreement is given to take it out from Section 2(oo), then such agreement cannot be regarded as fair or bona fide and that Section 2(oo)(bb) cannot be extended to such cases where the job continues and the employee's work is also satisfactory but periodical renewals are made to avoid regular status to employees. I am in respectful agreement with the view expressed in these decisions. Section 2(oo)(bb) has to be strictly interpreted and it is necessary to find out whether the letter of appointment is a camouflage to circumvent the provisions of the Industrial Disputes Act which confers the benefit of permanency on workers who worked continuously for a period of more than 240 days.
10. Learned counsel for the petitioner invited my attention to the decision in Chacko v. State of Kerala (1993-I-LLJ-283), Rajan v. Kerala State Electricity Board (1992-II-LLJ-278), J.S. Shrimati v. District Development Officer, Mehsana (1990-I-LLJ-451) but those decisions are not applicable to the facts of this case.
11. Taking into account the nature of the appointments made in the instant case and the gaps in between, I am inclined to think that the view I taken by the Labour Court that this is not a case coming within the purview of Section 2(oo)(bb) is reasonable and correct.
12. Original petition fails and it is accordingly dismissed. However, the parties will bear their respective costs.