Gujarat High Court
Harshaben Dalpatsinh Rajput vs President on 21 February, 2017
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/10414/2007 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 10414 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS JUSTICE SONIA GOKANI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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HARSHABEN DALPATSINH RAJPUT....Petitioner(s)
Versus
PRESIDENT....Respondent(s)
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Appearance:
MR AJAY L PANDAV, ADVOCATE for the Petitioner(s) No. 1
MR KV GADHIA, ADVOCATE for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 1
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 21/02/2017
ORAL JUDGMENT
1. The award impugned arise from the Reference (LCA) No. 1781 of 1998, whereby the labour court dismissed the plea of the petitioner.
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C/SCA/10414/2007 JUDGMENT
2. The brief facts in capsulized form are as follow:
2.1 The petitioner joined the respondent-Nashabandhi Mandal on the post of a counsel in the year 1988.
However, the working hours of the petitioner was 10:00 am to 6:00 pm and the last drawn salary of hers was Rs.1595/- (One Thousand Five Hundred Ninetyfive) per month. It is the case of the petitioner that Mandal is engaged in the activity of de-addiction and also after- care centre. Considering the work of the petitioner, she was appointed as administrator on 01.11.1995 initially for the period of three months and subsequently, there had been extension of such appointment upto July, 1998. The petitioner was also sent to Hyderabad for in service training of de-addiction and after-care treatment. However, her services came to be ended abruptly with no further extension and also with an office order dated 28th July, 1998, that her work is not found satisfactorily. 2.2 This has aggrieved the petitioner who has urged that she has not been given protection under Section 25 F of the Industrial Dispute Act, 1947 ('I.D.Act' for short). She approached the labour court, which did not accept the Page 2 of 16 HC-NIC Page 2 of 16 Created On Sun Aug 13 21:06:22 IST 2017 C/SCA/10414/2007 JUDGMENT request of the petitioner on the ground that her case is covered by Section 2 (o)(o) and Section 2(b)(b) and that has drawn the petitioner to this court by preferring this present petition under Articles 226 and 227 of the Constitution of India with the following prayers:
"Para:8
(a) To issue a writ of mandamus and/or certiorari and/or any other writ, order or directions to the learned Labour Court No.3, Ahmedabad court to quash and set aside a order dated 12.06.2006 passed in Reference (LCA) Case No.1781 of 1998 passed by the Learned Labour Court No.3, Ahmedabad.
(b) To order the respondent to reinstate the petitioner with full back wages and continuity of service since 1988.
(c) Such other and further reliefs as are deemed fit in facts and circumstances of this case may kindly be granted.
(d) To provide cost of this petition".
3. This Court has heard the learned advocate Mr.Ajay L.Panday for the petitioner who has urged that the petitioner has not only been continued her services by different communications for the period of three years, prior to that the ten years of the services that she had put in made the authority to give her fresh appointment. He further urged that the petitioner was not conferred the status of confirmed employee however, the other who were similarly situated had been made permanent. Therefore, the petitioner would not Page 3 of 16 HC-NIC Page 3 of 16 Created On Sun Aug 13 21:06:22 IST 2017 C/SCA/10414/2007 JUDGMENT only be entitled to the reinstatement in service but also with full back wages. And again since later when her service has been terminated on account of unsatisfactory performance the same would amount to retrenchment.
4. Learned advocate Mr. K.V.Gadhia appearing for the respondent No.1 has urged that ten years' period of her working as counselor cannot be counted as after she resigned from the very post on which she was working, she had been appointed freshly. Her appointment letter in categorical terms had included a clause which specified that if the services had not been found satisfactory, she would be terminated without any further procedure. He has urged that there had been a periodical extension by substantive order of expedite, the last such period was expiring on 31st July, 1998 and the order impugned has been passed on 28th July, 1998 giving effect from 31st July, 1998. He has relied upon the decision to emphasize that award of reinstatement has rightly not been given as the case of the petitioner is covered under Section 2(o)(o) & Section 2(b)(b) of the I.D.Act.
5. Having heard both the sides, preferring to firstly refer to the decision of Apex Court rendered in case of State of Punjab vs. Bhagwan Singh reported in (2002) 9 SCC 636 Page 4 of 16 HC-NIC Page 4 of 16 Created On Sun Aug 13 21:06:22 IST 2017 C/SCA/10414/2007 JUDGMENT was a case of probationer who was discharged during the period of probation. The authority referred to his assessment which was made for a particular period while passing the order of discharge where the performance of officer on the whole was found "not satisfactory" such words in the impugned order, the court held that would not amount to any stigma.
"3.The impugned order dated 04.09.1992 was passed by the competent authority. It reads as follows:
"It has been reported to me by In-charge of PTC, Ladha Kofthi, Sangrur, Inspector Joginder Singh, RI Police Lines, Faridkot and Inspefctor Sadhu Ram, PS City Kot Kapura that the act and conduct of Const. Bhagwan Singh, No.1819/fdkt.on the whole isnot satisfactory and he is unlikely to become a good police officer. I am also satisfied with their reports. I, Jasminder Singh, IPS, SSP/Faridkot being competent authority do hereby discharge Const. Bhagwan Singh, No.1819/Fdk.from service w.e.f. Today I.e.4-9-1992 A.N.under PPR 12.21 as he is found to be unlikely to prove a good police officer."
4.This aforesaid order to the extent it stated that the officer was unlikely to prove a good police officer, was in terms of the relevant Rule 12.21 applicable to the respondent. In our view, when a probationer is discharged during the period of probation and if for the purpose of discharge, a particular assessment of his work is to be made, and the authorities referred to such an assessment of his work, while passing the order of discharge, that cannot be held to amount to sigma.
5.The order sentence in the impugned order is, that the performance of the officer on the whole was "not satisfactory". Even that does not amount to any stigma."
6. In case of Escort Limited vs. Presiding Officer and Page 5 of 16 HC-NIC Page 5 of 16 Created On Sun Aug 13 21:06:22 IST 2017 C/SCA/10414/2007 JUDGMENT Another reported in (1997) 11 SCC 521 the appellant before the Apex Court was appointed on temporary appointment for a specific period of two months. The terms of the appointment enabled the appellant to terminate the service at any stage without assigning any reason. In such circumstances, when the service of the appellant was terminated under the said term even though effected before the expiry of the specific period, as adjudicated by the court, the same would not amount to retrenchment. The court held that this would not attract Sections 25 F and G of the I.D. Act.
"4. We do not consider it necessary to go into the question whether the workman had worked for 240 days in a year and whether Sundays and other holidays should be counted, as has been done by the Labour Court, because, in our opinion, Shri Shetye is entitled to succeed on theother ground urged by him that the termination of services of the workman does not constitute retrenchment in view of clause (bb) in Section 2 (oo) of the Act. Clause (bb) excludes from the ambit of the expression "retrenchment" as defined in the main part of Section 2 (oo) "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". The said provision has been considered by this Court in M.Venugopal v. Divisional Manager, LIC. The appellant in that case had been appointed on probation for a period of one year from 23.05.1984 to 22.05.1985 and the said period of probation was extended for further period of one year from 23.05.1985 to 22.05.1986. Before the expiry of the said period of probation, his services were terminated on 09.05.1986. It was held that since the termination was in accordance with the terms of the contract though before the expiry of the period of probation it Page 6 of 16 HC-NIC Page 6 of 16 Created On Sun Aug 13 21:06:22 IST 2017 C/SCA/10414/2007 JUDGMENT fell within the ambit of Section 2(oo)(bb) of the Act and did not constitute retrenchment. Here also the services of the workman were terminated on 13.02.1987, as per the terms of the contract of employment contained in the appointment letter dated 09.01.1987 which enabled the appellant to terminate the services of the workman at any stage without assigning any reason. Since the services of the workman were terminated as per the terms of the contract of employment, it does not amount to retrenchment under Section 2(oo) of the Act and the Labour Court was in error in holding that it constituted retrenchment and was protected by Sections 25-F and 25-G of the Act."
7. The Delhi High Court in case of Mahinder Singh vs. Indian Airlines Ltd. was dealing with the challenge from appellant driver where the learned single judge allowed the writ petition setting aside the award passed by the Industrial Tribunal in his favour, with a request on reinstatement in services with full back wages. In view of unsatisfactory performance since his service was terminated the court held that the same would not tantamount to retrenchment within the meaning of Section 2(oo) of the I.D.Act. On the ground that the reasoning does not suffer from any perversity, which warrants interference, the court rejected or dismissed the intraCourt appeal. While so doing it referred to various decisions of the Apex Court.
"10.The question whether the termination of services of the workman during the probation period tantamounts to retrenchment came up for consideration before Supreme Court in several decisions.
11.In M. Venugopal (supra), service of the Workman Page 7 of 16 HC-NIC Page 7 of 16 Created On Sun Aug 13 21:06:22 IST 2017 C/SCA/10414/2007 JUDGMENT was terminated during the extended probation period on account of non-fulfilment of the condition of achieving minimum business target stipulated in the order of appointment. The Supreme Court held that termination of services of the Workman was not deemed to be "retrenchment" within the meaning of Section 2(oo) of the Act even in respect of the period prior to introduction of clause (bb) in Section 2(oo) of the Act. Thus, non compliance of the requirements of Section 25-F was held not to vitiate or nullify the order of termination of Workman.
12.Again in Escorts Limited (supra), Workman was appointed on temporary basis for a period of two months. The terms of appointment enabled the employer to terminate the services at any stage without assigning any reason. The Supreme Court held that the termination of services under the said terms even though effected before the expiry of the specified period, did not amount to retrenchment. Consequently, Section 25-F and 25-G of the Act did not come into play.
13.In Kalyani Sharp India Ltd.(supra), workman was terminated during the period of probation. The Labour Court as well as the High Court took a view that termination amounted to retrenchment for non-compliance of Section 25-F of the Industrial Disputes Act. The Supreme Court reversed the views of the Labour Court and the High Court and observed thus :
"6 The order of employment itself clearly sets out the terms thereafter which makes it clear that the facility of providing training to him could be put to an end at any time without assigning any reason whatsoever and his services could be regularised only on satisfactory completion of his training. If these clauses are read together, it is clear he was under probation during the relevant time and if his services are not satisfactory, the same could be put an end to. It is clear that the respondent had been appointed as a Trainee Service Technician and for a period he had to undergo the training to the satisfaction of the appellant and if his work was not satisfactory during that period the facility could be Page 8 of 16 HC-NIC Page 8 of 16 Created On Sun Aug 13 21:06:22 IST 2017 C/SCA/10414/2007 JUDGMENT withdrawn at any time and he would be regularised only on completion of his training. Thus the respondent‟s services were terminated before expiry of the probationary period. In such a case, question of issue of notice before terminating the service as claimed by the respondent does not arise. Escorts case [(1997) 11 SCC 521 : 1998 SCC (L&S) 235] is identical with the present case. Following the said decision and for the reasons stated therein these appeals are allowed. The order made by the High Court affirming the award made by the Labour Court is set aside and the claim made by the respondent is dismissed."
14.In view of the aforesaid judgments of the Supreme Court governing the field it can be safely culled out that termination of service of a probationer in terms of the stipulation contained in the contract of employment does not tantamount to "retrenchment" within the meaning of Section 2(oo) of the Act since it is covered by clause (bb) of Section 2(oo) of the Act. Thus, Section 25-F of the Act does not get attracted in such cases. These decisions were not considered in Delhi Cantonment Board (supra). Therefore, in Mahesh Chand(supra), a learned Single Judge of this Court took the view that in case of termination of a probationer Section 25-F of the Act is not attracted in view of Section 2(oo)(bb) of the Act which was followed by learned Single Judge in this case. Reliance was also placed on a decision rendered by a division bench of this Court in LPA 472/2013 titled Satish Kumar vs. Delhi Fire Services, where it was observed as under:-
"From the above, it is clear that retrenchment means termination by the employer of the services of a Workman for any reason whatsoever "except those expressly included in the section". For the point of time, when the Supreme Court was considering the cases before it, Section 2(oo)(bb) was not in vogue. However, the Supreme Court had noticed that provision because when the judgment was rendered, the amendment had been brought about and clause (bb) had been introduced. After examining the same and Page 9 of 16 HC-NIC Page 9 of 16 Created On Sun Aug 13 21:06:22 IST 2017 C/SCA/10414/2007 JUDGMENT analysing it in detail, the Supreme Court came to the conclusion that every termination by an employer of the services of a Workman would amount to retrenchment except in those cases which were expressly excluded by the said Section 2(oo) of the said Act itself. Insofar as the present case of termination is concerned, we are of the opinion that it falls under the exception carved out in Section 2(oo)(bb) of the said Act inasmuch as the contract of employment of the appellant itself contained the stipulation whereunder his services could be terminated without assigning any reason during the probation period."
8. Reliance is also placed on the decision of the learned single judge rendered in case of G.E.B. Substituted as Gujarat State Electricity Corporation vs. Harishkumar N.Bosamiya reported in 2014 (3) GLR 2277 wherein also the orders of appointment of respondent workman were demonstrative that his engagement was temporary and time to time, it was extended. Though repeatedly but on each occasion the appointment was for a fixed period. The last order was dated 17/18-8-1989, which was extended up to 31- 12-1989. The services of the workman was not retained after the expiry of the said period. In such circumstances, the court has held that the services were terminated at the end of specified period as in each order of appointment the contract of employment reflected that there was a stipulation about expiry of the contract. Therefore, when his service did not continue at the end of period specified in the last appointment Page 10 of 16 HC-NIC Page 10 of 16 Created On Sun Aug 13 21:06:22 IST 2017 C/SCA/10414/2007 JUDGMENT order, it did not constitute retrenchment within a meaning of Section 25 F of the I.D.Act and a case is covered under exception as contemplated in Section 2(oo)(bb) of the I.D.Act.
"5.From the controversy involved and the contentions canvassed, the issue that emerges is whether the termination of the respondent was a retrenchment so as to attract the provisions of section 25F or it fell within the exception and purview of section 2(oo)(bb) so as not to be treated as retrenchment.
5.1 Section 2(oo)(bb) reads as under:-
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) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (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;
5.2 In Karnataka Handloom Development Corporation Ltd. vs. Sri Mahadeva Laxman Raval [(2006) 13 SCC 15], the Hon'ble Supreme Court held that the termination of contractual employee would not attract section 25F. In that case, the letter of appointment produced on record categorically stated, as in the present case, that the respondent's appointment with the Corporation was purely contractual for a fixed period. The Court observed that it is not as if no period was Page 11 of 16 HC-NIC Page 11 of 16 Created On Sun Aug 13 21:06:22 IST 2017 C/SCA/10414/2007 JUDGMENT indicated and the only indication was the temporary nature of engagement. Therefore, the position of law highlighted that once the terms and conditions of the appointment reflected from the appointment order indicates specific period, then the employee would not be working for the purpose of section 25F, but, one employed on contract basis only. Section 2(oo) of the Act is not attracted as soon after the expiry of specific period. The services would be liable to be discontinued. The appointee would lose his right to continue beyond the period contemplated in this contractual appointment. The case would fall under section 2(oo)(bb). In Gangadhar Pillai vs. Siemens Ltd. [(2007) 1 SCC 533], it was observed by the Apex Court that the termination of service, in case falling under section 2(oo)(bb), would not unnecessarily lead to any inference that it was actuated by malice.
5.3 In Punjab State Electricity Board(supra), the facts before the Supreme Court were that the respondent was appointed as peon on daily-wage and his appointment was shown to be of temporary character and it was from 08.01.1988 upto 29.02.1988. On 07.03.1988, his appointment was extended on the same terms and conditions. Similar extensions were thrice granted thereafter. The Supreme Court held that the employment being specific/fixed term and the engagement of the workman being conditional and for specific period, which was indicated in the appointment order, his case was squarely covered by section 2(oo)(bb) and section 25F would be inapplicable. Also in Kishore Chandra Samal(supra), the facts were akin to the facts of the present case. In that case, the appellant was appointed as Junior Typist and was engaged for various spells of fixed periods from July, 1982 to August 1986. In all orders of engagement, specific period was mentioned. It was held that the case was covered by section 2(oo)(bb). The Apex Court affirmed the order of the High Court, quashing the reinstatement.
6. In the present case, the orders of appointment of the respondent- workman(pages 27-32, Annexure-B) Page 12 of 16 HC-NIC Page 12 of 16 Created On Sun Aug 13 21:06:22 IST 2017 C/SCA/10414/2007 JUDGMENT were demonstrative that his engagement was temporary and time-bound. It may be true that the engagement of the respondent was repeated, but on each occasion, it was the appointment for fixed period. As already noted, the first order dated 28.02.1989 specified temporary engagement for a period of fifty eight days and subsequent orders too provided for a date upto which, the engagement was to last. In other words, fixed period was indicated. The last order was dated 17/18.08.1989, in which, it was stipulated that it was upto 31.12.1989. Hence, on every occasion of appointment, period was indicated. After the said last order and the period provided thereunder having expired, the services of the workman was not retained and were not continued.
6.1 Each order of appointment reflected contract of employment, wherein there was a stipulation about expiry of the contract. The services were terminable at the end of specified period. This being the position manifested from the orders of appointment, it was clearly established from the said materials on record that the engagement of the workman was for a specific period. When his services were not continued at the end of the period specified in the last appointment order, it did not constitute retrenchment within the meaning of section 25F and his case stood covered under exception as contemplated in section 2(oo)(bb) of the Act. It was clear that the completion of 240 days of service or otherwise was an aspect rendered irrelevant. 6.2 The decisions relied upon by learned advocate for the respondent may be adverted to. In Surendra Kumar Verma (supra), it was emphasized that the labour law should be given broad interpretation. It was held that for the purpose of continuous service, the workman must have worked for at least 240 days in one year and it is not necessary that he has been in continuous service for one year. This decision hardly applies to the point involved in the present case. Similarly, in a decision in Anoop Sharma(supra) was relied upon by learned advocate for the respondent to the effect of non- compliance of clauses (a) and (b) of section 25F, the Page 13 of 16 HC-NIC Page 13 of 16 Created On Sun Aug 13 21:06:22 IST 2017 C/SCA/10414/2007 JUDGMENT Supreme Court held that non-compliance of the said provisions would render retrenchment nullity. The Supreme Court restored the award of the Labour Court and directed reinstatement with payment of backwages. At the cost of repetition, it may be stated that in the instant case, on facts, once it was found that the case fell under section 2(oo)(bb), the question of breach of section 25F did not arise. The decision in Anoop Sharma(supra) has, therefore, no applicability.
6.3 Learned advocate for the respondent tried to contend that since the appointments were extended in repeat, it could not be viewed as fixed time so as to attract section 2(oo)(bb) of the Act. As already noted, each order of appointment was capable of being viewed as independent contract of service specifying the fixed term for engagement. The fact remained that the orders of such nature were passed more than once by itself could not lead to a conclusion that the employer wanted the workman to continue permanently. There was nothing to indicate that even term appointment was given as a clock, whereas the engagement was of a permanent kind. It was open to the employer to issue such orders contracting with the workman for appointing him for a specific period. It was not that the workman continued for long years in the guise of fixed term appointment, in which event, in a given case, the inference of section 2(oo)(bb) may be drawn by the Court. The facts of the case does not reflect such a situation.
6.4 Merely because the engagement of the workman was extended, it could not robe off the character of fixed term appointment. The services of the workman was not continued beyond 31.12.1989 which was non-renewal of contract of service and was already specified upto that date in the order of appointment. The contention that the workman was entitled to relaxation in the age, therefore also, is of no avail in view of above factual premise of the case and the legal position discussed above."
9. Reverting to the facts of the instant case, the petitioner Page 14 of 16 HC-NIC Page 14 of 16 Created On Sun Aug 13 21:06:22 IST 2017 C/SCA/10414/2007 JUDGMENT though worked initially for the period of nearly ten years from 01.02.1988 as a counselor, her earlier appointment cannot be construed as a continuous appointment as on her resignation from the said post, her appointment at first was on 01.11.1995. As is quite apparent from the record that her appointment as an administrator was w.e.f. 01.11.1995. One of the clauses clearly stipulated that this was made for only three months either on the closure of the scheme or otherwise if her work was not found satisfactory, her employment was to come to an end. Thus, this was of a temporary character which then was extended on 10.11.1996. Another extension was on 12.08.1996 and her work was to be evaluated from 12.08.1996 to 30.10.1996 and one more extension came from 26.12.1996 to 31.03.1997. On 25th March, 1997 a term of appointment was extended till 30.06.1997 vide office order dated 17.06.1998 the same was extended till 31.07.1998 without making any change in that on 28.07.1998 on the ground that her work was not satisfactory, services of the petitioner was ended.
10. Aggrieved petitioner had chosen to approach the Tribunal on various grounds. The Tribunal after detailed discussion had held that this termination of service would not amount to retrenchment, the case of the petitioner is squarely Page 15 of 16 HC-NIC Page 15 of 16 Created On Sun Aug 13 21:06:22 IST 2017 C/SCA/10414/2007 JUDGMENT covered by the decision of the Apex Court and those which have been discussed herein above that her termination of service would not constitute retrenchment in view of Clause (bb) in Section 2(oo) of the I.D.Act, Clause(bb) is used from the ambit of retrenchment as defined in the main part of Section 2 (oo) "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" holding that the service of the petitioner was unsatisfactory also would not amount to any stigma requiring any kind of hearing.
11. As is eloquently clear from the record that on the ground of unsatisfactory performance, the last extension which had come in the series of orders of extension and which ended on 31st July, 1998, was not further extended. This would not amount to retrenchment and therefore, the order of the labour court being lawful and valid, no interference is desirable. Rule is discharged.
Petition is dismissed accordingly.
(MS SONIA GOKANI, J.) MIRZA Page 16 of 16 HC-NIC Page 16 of 16 Created On Sun Aug 13 21:06:22 IST 2017