Delhi High Court
Shri Manoj Kumar S/O Sh. Charan Singh vs Presiding Officer, Central Govt. ... on 21 July, 2006
Author: Shiv Narayan Dhingra
Bench: Shiv Narayan Dhingra
JUDGMENT Shiv Narayan Dhingra, J.
Page 2626
1. By this writ petition, the petitioner has challenged the Award dated 21.11.1996 passed by the Industrial Tribunal, New Delhi, dismissing the claim of the petitioner/Workmen against termination of his services.
2. Petitioner was given offer for appointment for the post of Waiter on 20.7.1990. In the offer of appointment it was stated that appointment would be purely on temporary capacity up to 29.1.1991 for which it has been approved and terms and conditions for this post were given in appendix-A to the letter of offer. The terms and conditions read as under:
1. Nature of Appointment: Temporary on nerrik rates
2. Conditions of service: (a) the post is purely temporary up to 29th Jan. 1991 on nerrik rates of pay. There is no likelihood of this appointment being extended or converted to any other types of appointment.
(b) Services are liable to be terminated without any notice.
3. Pay and allowance (a) Pay-On nerrik rates of pay i.e Rs. 16/- per day.
(b) (Allowance-nil)
4. Liability of Service : Liable to serve in 510 Army base Workshop.
5. Oath of Allegience Will be required to take an oath of allegience or make an affirmation to the constitution of India.
6. Plural Marriages No person who has more than one wife living will be appointed to any post under the Govt. If the candidate for appointment is a married man, a written declaration whether he has more than one wife living will be made by him. If the declaration once made is found incorrect he will be liable for dismissal from service.
7. Leave No leave is admissible as the appointment is on nerrik rates of pay.
Page 2627
3. Petitioner accepted the offer and appointment letter was issued to him in following terms:
APPOINTMENT LETTER The Commandant, 510 ARMY BASE WORKSHOP, MEERUT CANTT. (Designation of the appointing authority) hereby appoints Shri Manoj Kumar son/daughter/wife of Shri Charan Singh as Waiter (Designation) capacity with effect from 21 July 90 until further orders and on the terms and conditions offered to the individual vide this unit letter No. 20301/NR/Emp Cell dated 23 July 90.
4. The services of the petitioner were dispensed with on 21.1.1992. Petitioner raised an Industrial dispute in 1994 and the following reference, was made, to the Tribunal:
Whether the action of the management of 510 Army Base workshop in terminating the services of Shri Manoj Kumar S/o Shri Charan Singh, Waiter w.e.f. 21.3.1992 is legal and justified ? If not to what relief the workman concerned is entitled to ?
5. The Tribunal after considering the evidence and the record produced by both the parties observed:
1. After having gone through the points urged before me by the representatives for the parties, I am of the opinion that there is no denying fact as proved from the annexures filed by the management, which is part of the defense services of the Government of India, that USSR Specialist had come to Meerut Cantt and some staff for them was required. It was made clear by the Government of India as well as by the appointment Authority that the employees were being recruited only for services to be rendered to this Unit of USSR specialist. The nature of the job of these people was also like Masalchi, Cook, Gardner, Waiter etc. They were engaged for specific period and were not entitled to even leave. As their appointment was only daily basis which is recorded as nerrick rates of pay in the Appendix attached in the terms and conditions in respect of these candidates. It was recorded that there was no likelihood of the appointment being extended or converted to any other type of appointment . The terms and conditions were recorded in letter dated 20th July 1990 and as a part of the defense services the workmen were told that their services would no longer be extended beyond the period of their appointment. He also admitted the receipt of letter dated 23.7.1990 and accepted the offer of appointment on the terms stated therein. In view of this situation I am of the opinion that since the workman was employed along with his other colleagues whose reference have also been received, specifically for the purpose of assisting the USSR Specialists for the task entrusted to them and with the completion of the said task, the services of these employees were no longer or required. It was a clear cut case of closure as the workman were employed only for a fixed period on daily basis for specific purpose for holding those specialists. The action of the management in this case in my opinion was fully justified. However, parties are left to bear their own costs.
6. Petitioner has challenged the legality of the Award on the ground that the petitioner was appointed in the office of 2nd respondent and not on any project. Documents regarding appointment of petitioner for specialist team of USSR Page 2628 were produced only during the proceedings before the Tribunal. In the appointment letter it was not mentioned that petitioner was being appointed on the project of USSR specialist only. The petitioner's name was called through employment exchange and he could not be appointed only for a limited period. Assuming that petitioner was appointed for USSR specialists, but he was posted in the mess and the activities of the mess were of a complex nature and the services of the petitioner should not have been terminated. The petitioner was employed to work in 500 Army Base work-shop. The activities of the work-shop had not come to an end and the establishment where petitioner was appointed had not ceased to exist, therefore, the services of the petitioner could not have been terminated. The decision of the Tribunal that it was a case of closure and holding that the workman was employed for a fixed period, is contrary to the facts. The initial offer of appointment given to the workman shows that his appointment was only up to 29.1.91 but petitioner continued in service even thereafter for more than one year. So it could be said that the offer of appointment was only for a limited period.
7. The counsel for the petitioner drew attention of the Court to Section 2(cc) of the Industrial Dispute Act where closure has been defined as permanent closing down of a place of employment or part thereof and argued that since there was no closure of Army Base work-shop the termination of the petitioner amounted to retrenchment. Respondent/employer contravened the provisions of Sections 25F & N which were to be complied to retrench petitioner. The termination was bad in law.
8. On the other hand the case of the respondent is that the appointment of the petitioner was for a fixed period on a project and his services were terminated after the project was over and it was squarely covered by the provisions of Section 2(oo)(bb) of ID Act.
9. The position of the law relating to the fixed period appointments and project specific appointments and the scope and ambit of Section 2(oo)(bb) and Section 25-F is now well settled in view of the various pronouncements of the apex court.
10. In Morinda Coop. Sugar Mill v. Ram Kishan and Ors. , Supreme Court has observed as under:
4. It would thus be clear that the respondents were not working throughout the seasons. They worked during crushing seasons only. The respondents were taken into work for the season and consequent to closure of the season, they ceased to work.
5. The question is whether such a cessation would amount to retrenchment. Since it is only a seasonal work, the respondents cannot be said to have been retrenched in view of what is stated in Clause (bb) of Section 2(oo) of the Act. Under these circumstances, we are of the opinion that the view taken by the Labour court and the High Court is illegal. However, the appellant is directed to maintain a register for all workmen engaged during the seasons enumerated herein before and when the new season starts the appellant should make a publication in Page 2629 neighbouring places in which the respondents normally live and if they would report for duty, the appellant would engage them in accordance with seniority and exigency of work.
11. In A. Uma Rani v. Registrar, Cooperative Societies and Ors. , Supreme Court held that once the employees are employed for the purpose of a scheme, they do not have vested interest after project is over (para 41 and 42).
12. It is undisputed that petitioner herein and other similarly situated persons were daily wager. In Mahendra L. Jain v. Indore Development Authority 2005 SCC L&S 154, the Supreme Court ruled that persons appointed on daily wages hold no post. Once a project comes to an end the persons so appointed have to go and they have no right to get regularized in the service. The employees were appointed at the project to be executed by the Indore Development Authority. The appointments were made for the project. The life of the project came to an end in June 1997 and maintenance work was taken over by the municipal corporation of Indore and the petitioner was terminated. Labour Court did not grant relief of regularization to the petitioner. The claim of the petitioner was turned down by the High Court as well as by the Supreme Court.
13. Section 2(oo)(bb) reads as under:
(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) xx xx xx xx
(b) xx xx xx xx (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;
14. It is undisputed fact that the petitioner was engaged as a Waiter only for the period when a team of specialist from USSR was staying in the mess. It was clearly indicated in the appointment letter that the appointment was purely temporary and shall continue till further orders and has been approved for a period up to 29th January, 1991 only. The appointment continued for some time after the period indicated in the offer of appointment because the stay of USSR team get prolonged but that does not mean that the petitioner's appointment become anything other than an appointment for specific project. The appointment of petitioner came to an end after leaving of the USSR team.
15. I consider that in view of settled position of law, no fault can be found with the order of Tribunal. The termination of service of the petitioner and other similarly situated employees was covered under Section 2(oo) and (bb) of Industrial Disputes Act. Petitioner had no right to get regularized. The writ petition deserves to be dismissed and is hereby dismissed. No orders as to costs.