Himachal Pradesh High Court
Het Ram And Anr. vs State Of H.P. And Ors. on 17 May, 2005
Equivalent citations: (2006)IILLJ166HP
Author: Surjit Singh
Bench: Arun Kumar Goel, Surjit Singh
JUDGMENT Surjit Singh, J.
1. The present writ petition under Articles 226 and 227 of Constitution of India has been filed for review of an undated order/judgment delivered in November, 1999 in O. A. No. 991 of 1999 by the State Administrative Tribunal (copy Annexure P-6) whereby the prayer of the petitioners for quashing their termination orders, dated March 6, 1999 has been rejected.
2. Petitioner No. 1 was appointed as Hindi Typist on daily wage basis till the completion of the job of compilation of Freedom Fighter History Book, Part-II or a period of six months, whichever was earlier. Similarly, petitioner No. 2 Narain Dass was appointed as Hindi Typist on December 11, 1997 vide order Annexure P-2 on daily wage basis, till the completion of the compilation of the aforesaid book or a period of six months, whichever was earlier. The two petitioners were, however, allowed to continue beyond the period of six months, without issuing any formal order of extension or fresh order of appointment and were paid the wages for the said extended period also. Vide order dated March 6, 1999 (Annexure P-6) their services were terminated all of a sudden, though the job for which they had been appointed had still not been completed. They challenged their termination orders by filing O.A. No. 991 of 1999 before the State Administrative Tribunal. They alleged that they had worked for more than 240 days on daily wage basis, without any break, and therefore, their service could not have been terminated, without complying with the requirement of Section 25- F of the Industrial Disputes Act, which provides for the service of notice and payment of compensation.
3. The respondents, i.e. State of H.P. through Secretary, Language and Culture and the Director, Language and Culture contested the aforesaid O.A. and took the plea that the two petitioners had been appointed purely on temporary basis as daily waged typists and that late on, a decision was taken by the respondents to entrust the work of compilation of Freedom Fighter Part-II book to a scholar in the shape of a project, on payment of lumpsum and consequently the services of the two petitioners were terminated. It was denied that Section 25-F was attracted in the matter. It was specifically pleaded that the two petitioners were employed in department of Government, which was not an Industry and, as such, petitioners were not workmen. The Administrative Tribunal dismissed the petition through the impugned order passed in November, 1999, copy Annexure P-6, holding that the activity for which the petitioners were employed was not covered by the definition of 'Industry' within the meaning of Industrial Disputes Act, 1947 and hence they were not workmen and so Section 25-F of the Industrial Disputes Act was not applicable in their case.
4. The aforesaid order of the Tribunal has been assailed in the present writ petition. It is alleged that the petitioners were workmen within the meaning of Industrial Disputes Act and, hence, their services could not have been dispensed with, unless provisions of Section 25-F of the Industrial Disputes Act, 1947 had been complied with. The further plea of the petitioners that since they had worked for 240 days on daily wage basis and the work for which they had been employed was still not over their services could not have been terminated through the impugned order dated March 6, 1999 (Annexure P-5).
5. The stand of the respondents is the same as it was before the State Administrative Tribunal, which has been summarized hereinabove.
6. We have heard the learned Counsel for the parties and perused the record.
7. It is the petitioner's own case that their services could not have been terminated without complying with the provisions of 5 Section 25-F of the Industrial Disputes Act. That means that they claim themselves to be workmen and, if it is so, ought to have approached, the Labour Court for the redressal of their grievance, by having got made a reference to the said Court, instead of approaching the State Administrative Tribunal. The said Tribunal or for that matter any other forum will not have jurisdiction when the person approaching the Tribunal or any other forum (other than Labour Court) claims that he/she is a workman.
8. The law is well settled on the point. Where the matter pertains to the enforcement of a right created by the Industrial Disputes Act, the only forum available to the aggrieved party is to approach the Labour Court or Industrial Tribunal. In Premier Automobiles Ltd. v. Kamlakar Santaram Wadke of Bombay , it was held that if the right which is sought to be enforced is a right created under the Act, such as Chapter 5-A of the Industrial Disputes Act, then the remedy for its enforcement is either Section 33-C on raising of an industrial dispute as the case may be. In the present case, the petitioners have challenged their termination on the ground that provision of Section 25-F pertaining to right to notice and compensation which Section appears in Part 5-A of the Industrial Disputes Act has not been complied with. The petitioners have also sought reinstatement and back wages. The Hon'ble Supreme Court in Jitendra Nath Biswas v. Empire of India and Ceylone Tea Co. has held that relief of reinstatement and back wages cannot be granted by the Civil Court (where the claimant is a workman) and that provisions of Industrial Disputes Act impliedly exclude the jurisdiction of the Civil Court, as regard such relief.
9. Again in Raj as than State Road Transport Corporation v. Krishna Kant , it was held that the matter regarding the termination of a workman is not cognizable by the civil Court. The view has been reiterated in Chandrakant Tukaram Nikam v. Municipal Corporation of Ahmedabad .
10. However the facts which have been alleged and emerge from the pleadings of both the parties clearly suggest that the petitioners are not workmen and hence Section 25-F of the Industrial Disputes Act cannot be called in aid by them. They were employed by a department of the Government, i.e. Language and Culture, for the purpose of doing typing work in connection with compilation of a History Book. Neither the department in which they were employed nor the purpose for which they were employed, falls within the definition of 'Industry' as given in Section 2(j) of the Industrial Disputes Act. In Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. and continued (of the same report) a seven judges bench has interpreted the term industry to mean any systematic activity, carried on by co-operation between an employer and his workmen (whether such workmen are employed by such employer directly or by or through any agency, including a contractor) for the production, supply or distribution of goods or service with a view to satisfy human wants or wishes (not wants or wishes which are merely spiritual or religious in nature).
11. In the present case, the petitioners were employed as daily waged typists for the purpose of typing work in connection with compilation of just one book called FREEDOM FIGHTER HISTORY BOOK PART II, by a department of the Government, i.e. Language and Culture Department for a limited period of six months or till the completion of the job, whichever was earlier. Therefore, they cannot be said to have been employed in connection with any systematic activity carried on by co-operation between an employer and his workmen for the production, supply or distribution of goods or service with a view to specifying human wants or wishes. Therefore, in our considered view, the petitioners were not 'workmen' and hence the dispute raised by them is not an 'industrial dispute'.
12. Admittedly, the petitioners were appointed for a specific period or till the completion of the job for which they were employed, whichever was earlier. Their appointments were not against created posts. No doubt, they were allowed to continue to work beyond the initial period of six months for which they were employed and it is also not in dispute that the purpose for which they were employed had also not been achieved, when their services were terminated, but the fact remains that the job for which they were employed stood entrusted to a scholar on payment of lump sum, and, therefore, by implication the specific purpose for which the petitioners were employed came to an end. Therefore, no fault can be found with the order dated March 6, 1999 Annexure P-5 of respondent No. 2 whereby the services of the petitioners have been terminated.
13. Petitioners' plea that they worked for 240 days continuously during a period of one year and as such their services could not have been terminated without compliance of Section 25-F of the Industrial Disputes Act and so they continue to be in service cannot be accepted for two reasons. First as already stated the petitioners are not 'workmen' as the department in which or the purpose for which their services were engaged is not an 'industry' within the meaning of Section 2(j) of the Industrial Disputes Act and secondly the purpose for which they were engaged has come to an end due to the assignment of the job to a scholar on payment of lump sum. There is a catena of judicial precedents to the effect that where a person's services are engaged in connection with a project, he ceases to be in service when the project is completed and such person cannot claim that he has the right to remain in service. The citations are:
(a) Delhi Development Horticulture Employees' Union v. Delhi Administration, Delhi ,
(b) Surendra Kumar Sharma v. Vikas Adhikari and
(c)MD., U.P. Land Development Corporation v. Amar Singh .
14. In the present case assignment of job to a scholar stands on the analogy of completion of project.
15. No other point had been urged.
16. In view of the above stated position, the writ petition is dismissed, with no order as to costs.