Rajasthan High Court - Jaipur
R.S.R.T.C. vs Judge, Labour Court on 3 February, 1987
Equivalent citations: 1987(2)WLN864
Author: Suresh Chandra Agrawal
Bench: Suresh Chandra Agrawal
JUDGMENT Suresh Chandra Agrawal, J.
1. This writ petition has been filed by the Rajasthan Road Transport Corporation (hereinafter referred to as 'the Petitioner') to challenge the Award (Annex-P-8) dated 10th May, 1979, made by the Judge, Labour Court, Jaipur (hereinafter referred to as 'the Labour Court')
2. Shiv Shanker, respondent No. 2 hereinafter referred to as 'the respondent workman') was appointed as Conductor with the petitioner Corporation under order dated 29th December, 1973. The said appointment of the respondent workman was made on temporary basis for a period of two months. In pursuance of the said order the respondent workman joined duty on 31st December, 1973. The said appointment of the respondent workman was extended for a period of one month upto 28th March, 1974 by order 28th February, 1974. It was further extended upto dated 28th April, 1974. It was further extended upto 28th April, 1974 by order dated 27 March, till 28th May 1974 by order dated 2nd May,1974 and till 28th June, 1974 by order dated 3rd June, 1974. It was not further extended beyond 28th June, 1974 and the services of the respondent workman stood terminated on 28th June, 1974. The said termination of the services of the respondent workman gave rise to an industrial dispute and by order dated 30th June, 1978, the Government of Rajasthan referred, for, adjudication to the Labour Court, the dispute as to whether the termination of the services of the respondent workman by the Regional Manager of the petitioner Corporation was valid and proper and if not, to what relief the respondent workman was entitled.
3. Before the Labour Court it was submitted on behalf of respondent workman that he was appointed on a permanent post and that his services were terminated without any reason. The case of the respondent workman was that making the appointment on a permanent post on temporary basis and in extending the said appointment from time to time amounts to an unfair labour practice and that such a temporary appointment was also violative of the standing orders of the petitioner Corporation. On behalf of the petitioner Corporation it was submitted before the Labour Court that the appointment of the respondent workman was for a fixed term and his services were terminated on expiry of the said term. It was also submitted on behalf of the petitioner Corporation that after the services of respondent workman were extended on 28th February, 1974 certain complaints were received against him and, thereafter his services were extended from time to time but as his work was found unsatisfactory his services were not extended further and they stood terminated on 28th June, 1974.
4. The Labour Court, in its Award dated 10th May, 1979, has held that the fact that the services of the respondent workman were extended from time to time shows that he was appointed on a post of permanent nature and his appointment was temporary. The Labour Court has also held that under the standing orders the petitioner Corporation can make temporary appointment for fixed periods but such appointments are to be made for contingent reasons which are given in the standing orders and that none of the appointment orders produced before the Labour Court give any contingent reasons for the temporary appointment and, therefore it was established that the respondent workman was appointed on the job of a permanent nature. The Labour Court further held that the petitioner Corporation engages persons for jobs of permanent nature for very short periods and that the only reason for making such appointments is to get the cheap labour. The Labour Court found that the respondent workman had not completed 240 days within a period of one year and as such there was no question of violation of Section 25F of the Industrial Disputes Act, 1947, but in view of the fact that the respondent workman was appointed on the post of a permanent nature it was necessary that regular procedure for dismissal should have been followed before the termination of the services of respondent workman. The Labour Court therefore, held that termination of the services of respondent workman was unjustified and deserved to be set aside and the respondent workman was entitled to be reinstated. But as regards the back wages the Labour Court directed that the respondent workman should not be given any back wages because he did not complete the satisfactory period and also because he did not perform any duties during this period. Feeling aggrieved by the aforesaid award of the Labour Court the petitioner Corporation has filed this writ petition.
5. I have heard Shri R.N. Munshi, the learned Counsel for the petitioner Corporation and Shri P.K. Sharma, the learned Counsel for respondent workman.
6. The first question that needs to be considered is, as to whether the appointment of respondent workman can be held to be of a permanent nature. In this connection it may be stated that the initial order of appointment as well as orders for extension passed from time to time have been placed on record by the petitioner as Annexures P-1 to P-5 to the writ petition. The initial order of appointment (Annex. P-l) dated 28th December, 1973 expressly mentions that the appointment of respondent workman was for a period of two months and that on the expiry of the said period of two months the services of the respondent workman would stand terminated without any notice. The said appointment of workman was extended from time to time by orders dated 28th Feb., 1974, 27th March, 1974, 2nd May, 1974, and 3rd June, 1974. The last extension was given by order dated 3rd June 1974, upto 28th June, 1974 and thereafter, no further extension was granted and the services of the respondent workman were terminated with effect from 28th June, 1974.
7. The Labour Court has held that under the standing orders of the petitioner Corporation, temporary appointments can be made for a fixed period but such appointments are to be made for contingent reasons which are given in the standing orders itself and since the appointment orders do not give any contingent reasons for the appointment the respondent workman was appointed on a job of a permanent nature. The standing order to which reference has been made by the Labour Court in the Award is standing order No. 11 which provides as under:
A person may be appointed temporarily or as a substitute on a permanent post, for unforeseen contingencies e.g. election emergency etc. Shri Munshi has urged that the said standing order makes provision for appointment on temporary basis as well as an appointment of a temporary substitute on a permanent post for unforeseen contingencies e.g. election emergency etc. The submission of Shri Munshi is that the second part of the standing order prescribing the unforeseen contingencies applies only to the appointment of a temporary substitute on a permanent post and the said part does not restrict the power to make a temporary appointment. Shri Munshi has, therefore urged that the Labour Court has erred in construing this standing orders of the petitioner Corporation to hold that an appointment can be made on temporary basis only for the contingencies referred to in Standing Order No. 11. In my opinion the aforesaid contention of Order Munshi must be accepted. The provisions of Clause 11 of the standing orders of the petitioner Corporation have been considered by a Division Bench of this Court in the Rajasthan State Road Transport Corporation v. Judge, Labour Court (D.B. Special Appeal No. 15 of 1980, decided on September 19, 1985.) and this Court has held as under:
A perusal of Clause 11 of Standing Orders shows that the Corporation has power to make an appointment temporarily or as temporary substitute on a permanent Post. A situation may arise where appointments may be necessary even against permanent post but some time may be necessary for making regular selections on the post by screening test or otherwise. It may not be a case of unforeseen emergency e.g. election or emergency as contained in Clause 11 of the Standing Orders but the situation may arise in a case of normal course of filling a permanent post. After a permanent post is sanctioned and till selections are to be made on regular basis, some time lag is necessarily bound to occur and till then there is nothing wrong if such posts are filed by making a temporary appointment. Thus, it cannot be held that under the above Clause 11 of the Standing Orders, the Corporation has no power at all to make a temporary appointment on a permanent post except in cases of election or emergency. Such temporary appointment can remain effective till persons selected on a regular basis are found available. The view thus taken by the Labour Court as well as by the learned Single Judge on the interpretation of the provisions of Clause 11 of the Standing Orders is not correct.
8. In view of the said judgment of this Court in Rajasthan State Road Transport Corporation v. Judge, Labour Court, it must be held that in was open to the petitioner Corporation to make a temporary appointment on a permanent post and such power of making a temporary appointment is not restricted to the contingencies referred to in Standing Order No. 11, namely, election or emergency. The Labour Court was, therefore, not right in holding that since the appointment orders relating to the appointment of the respondent workman do not mention any contingent reason for the appointment, the respondent workman was appointed on the job of a permanent nature.
9. As regards the finding of the Labour Court the the only reason for making appointment of the respondent workman for very short periods on a job of permanent nature was to get cheap labour, Shri Munshi has pointed out that under order (Ex. P 1) the respondent workman was appointed on a salary of Rs. 90/- per month and that the regular pay scale for the post of Conductor in the petitioner Corporation was Rs. 90-4-110-5-150 and that there was no difference between pay of the respondent workman and the pay of regular Conductor, Shri Munshi has, therefore, urged that the Labour Court was not justified in holding that the appointment of the respondent workman for very short periods was with a view to get cheap labour. In the reply that has been filed on behalf of respondent workman to the writ petition it has not been asserted that the respondent workman was appointed on lower pay than the pay prescribed for a Conductor in the regular pay scale. In these circumstances I am of the opinion that the Labour Court was not justified in holding that the reason for the appointment of the respondent workman on temporary basis was to get cheap labour of very short periods.
10. It has been submitted by Shri Sharma that the appointment of the respondent workman for a period of two months on a job of a permanent nature and then extending it from time to time amounts to an unfair labour practice and that the Labour Court was, therefore, justified in holding that the termination of the services of respondent workman was not valid and proper. I am unable to agree with the aforesaid submission of Shri P.K. Sharma. In the present case there is no break in the service of the respondent workman and although he was appointed initially for a period of two months, his services were extended from time to time without any break. It cannot therefore be said that the respondent workman has suffered any prejudice on account of such orders of extension. It cannot be said that the petitioner Corporation sought to avoid the benefits of any labour welfare legislation being extended to the respondent workman and with that end in view the respondent workman was appointed initially for a period of two months only and his services were extended from time to time. The reason given by the petitioner Corporation for such extensions is that the performance of the respondent workman was being watched and since certain complaints had been received his services were extended & as he did not improve his efficiency no further extension was given after 28th June, 1974. In these circumstances it is not possible to hold that the action of the petitioner Corporation in appointing the respondent workman temporarily for a period of two months and extending his appointment from time to time amounts to an unfair labour practice.
11. For the aforesaid reasons I am unable to uphold the Award of the Labour Court that the termination of the services of respondent workman was illegal and improper and that he is entitled to be reinstated in service and the said Award must, therefore be set aside.
12. During the pendency of this writ petition an interim order was passed by this Court on 5th February, 1980 whereby the operation of the impugned award was stayed on the condition that the petitioner Corporation paid to the respondent workman 50% of the salary to which he was entitled with effect from 21st July, 1979 till the matter was decided by this Court. Taking into consideration the facts and circumstances of the case I am of the view that not recovery be made from the respondent workman of the amount received by him in pursuance of the said order.
13. In the result, the writ petition is allowed and the Award (Annx. P-8)dated 10th May,1979 made by the Labour Court is set aside subject to the direction that no recovery be made from the respondent workman of the amount that has been paid to him during the pendency of this writ petition on the basis of the interim order dated 5th February, 1980 passed by this Court. No order as to costs.