Madhya Pradesh High Court
Pawan Kumar Shrivastava vs Municipal Corporation on 14 May, 1998
Equivalent citations: (1999)IILLJ21MP
ORDER Dubey, J.
1. This is an appeal under Clause 10 of the Letters Patent aggrieved of the order dated September 19, 1996 passed in W.P. No. 3330 of 1996 by the learned Single Judge of this Court.
2. Facts giving rise to this appeal are thus:
The appellant who holds a Diploma in Civil Engineering and had only year's experience of working in the Public Works Department, State of M.P. was appointed by the respondent as Sub-Engineer on daily wages for a period of one month on its work charge establishment to work under Executive Engineer (Scheme) vide order dated November 2, 1995. After expiry of one month the employment of the appellant was continued without any break for the various schemes undertaken by the respondent for due performance of its functions. As post of the Sub-Engineer was lying vacant appellant applied on May 11, 1996 for regularisation of his service, on which no action was taken. Surprisingly on June 27, 1996 when the appellant reported for duty, he was not permitted to join his duties in view of a general order passed on June 17, 1996 by the Commissioner, Municipal Corporation that the services of all the employees on daily wages appointed after May 1, 1995 shall stand terminated.
3. The appellant challenged the action of termination of employment which amounted to retrenchment without complying with the mandatory pre-conditions of Section 25F of the Industrial Disputes Act, 1947 (for short 'the Act'). The respondent in the reply of the writ petition did not dispute about continuous working of the appellant for more than 240 days in a calendar year. However, it was contended that the appointment of the appellant, as is evident from the order dated November 2, 1995, was in work charge establishment on daily wages to work under the Executive Engineer (Schemes) as the respondent had undertaken to execute the various schemes of the State Government. The appointment of the appellant was for a specific period of one month, but, as the work continued the appellant's services were utilized on day to day basis till July 26, 1996. Only because the appellant possessed some technical qualification or that he was engaged for some time on daily wages on work-charge-basis, would not entitle him to claim regularisation in violation of the provisions of Articles 14 and 16 of the Constitution. Learned Judge of the Writ Court did not entertain the petition observing that the petition involves mixed questions of law and fact which can be adjudicated appropriately on an approach to be made to the Labour Court. Accordingly, the petition was disposed of with a liberty to the appellant to approach the Labour Court.
4. After notice of this appeal the respondent filed a detailed affidavit stating therein that the appellant has not continuously worked for 240 days and has worked only for 236 days and the salary was paid for the working days, details are shown in Annexure -R. 1. It was submitted that the post on which the appellant was working is not a budgeted post. The same was created with a purpose to fulfil or implement the Scheme known as Urban Basic Service Programme, i.e. U.B.S.P., sponsored by the State Government and for the purposes of implementing the above scheme the State Government has financed the respondent Corporation from time to time. Even sometimes allotments of funds were not made. The appellant was appointed for implementation of the scheme and was given the order of appointment to work as Muster Roll Employee. Since the appellant has not worked 240 days compliance of pre-requisites of Section 25F of the Act was not necessary. The appellant had no right to claim regularisation.
5. In reply to the affidavit by the respondent the appellant filed counter affidavit on April 11, 1997, wherein it is stated that the respondent admitted before the writ Court of working more than 240 days in a calendar year. The calculation of number of working days is after excluding Sundays and holidays which are liable to be calculated as. being paid holidays. The daily wages of the daily rated employee has been fixed by the Collector, Jabalpur. The circular Annexure-P.1 so issued clearly states that the daily wages for the employees working in State Government have been fixed in such a manner that the daily rated employee may get the benefit of wages of Sundays. Accordingly the appellant was paid wages. Therefore, the contention in appeal against the admission made before the writ Court that the appellant has not worked for 240 days on the face of it is factually incorrect and against the definition of "continuous service" Under Section 25B of the Act. Though the appointment of the appellant was for a fixed period of one month, but not for implementation of any particular scheme but various schemes and activities undertaken by the respondent for performance of the functions of the Corporation. The appellant was directed to work not only in U.B.S.P. but also other schemes like Flood Control, cleaning of Omti Mala and others which is evident by the order dated July 8, 1996 and July 11, 1996 passed by the Commissioner, Municipal Corporation, Jabalpur, annexed as Annexures-P.5 and P.6 with the writ petition.
6. Shri Ravindra Shrivastava learned counsel for the appellant restricted his contention for seeking of declaration of order of oral termination illegal, void and non est in view of the non-compliance of pre-requisites of Section 25F of the Act. It was submitted that as the order of termination was ab initio void, therefore, the appellant rightly approached the writ Court, as there was no dispute of completion of 240 days of service in a calendar year and non-compliance of conditions precedent of Section 25F of the Act before disengaging the appellant. To support his contentions, learned counsel cited Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Presiding Officer, Labour Court, Chandigarh and Ors., (1990-II-LLJ-70) (SC) H.D. Singh v. Reserve Bank of India and Ors. (1986-I-LLJ-127) (SC), D.K. Yadav v. J.M.A. Industries Ltd. (1993-II-LLJ-696) and the decisions of this Court in Iftikhar Ahmad Gauri v. Municipal Council Ambah 1992(1) MPJR 104, Mukhtyar Singh v. Food Corporation of India (1994-II-LLJ-488)(MP-DB), Mahesh Bhargawa v. State of M.P. and Ors. 1993-MPLJ 586, Chief Municipal Council Govindgar, Rewa v. Presiding Officer, Labour Court, Rewa 1994 MPLJ 704, Ram Krishan Sharma v. Samrat Ashok Technical Institute 1994 JLJ 776 and M.P. Bank Karmachari Sangh v. Syndicate Bank and Anr. 1996 Lab IC 1161.
7. Shri J.P. Agrawal, learned counsel for the respondent contended that the appointment of appellant was on temporary basis for executing the scheme of the State Government under work charge establishment of the respondent Corporation for a period of one Month. Appointment was not on budgeted post under the relevant Recruitment Rules, therefore, even assuming the appellant has completed 240 days of working days in a calendar year, the termination of the employment without complying with the provision of Section 25F of the Act would not render the order of termination as void or non est. The appointment of the appellant was illegal and was not in accordance with applicable Recruitment Rules, therefore, the appellant had no vested right nor he could have claimed regularisation. Learned counsel cited Surendra Kumar Gyani v. State of Rajasthan and Anr. AIR 1993 SC 115, State of Rajasthan and Ors. v. Rameshwar Lal Gahlot (1996-I-LLJ-888) (SC), Ashwani Kumar v. State of Bihar (1997-II-LLJ-856) (SC), Ram Ganesh Tripathi v. State of U.P. AIR 1997 SC 1446 and Himanshu Kumar Vidyarthi and Ors. v. State of Bihar and Ors. (1998-II-LLJ-15)(SC).
8. We may state here that the activities of the respondent Corporation fall within the ambit of 'industry' as defined in Section 2(j), and the appellant is a workman as defined in Section 2(s) of the Act. The respondent also contended before the writ Court that the 'industrial dispute' can be adjudicated on reference being made by the State Government to Labour Court, and therefore, learned Single Judge granted liberty to approach the Labour Court. In these circumstances the question for our consideration is whether the termination of the employment of the appellant amounts to 'retrenchment' as defined in Section 2(oo), without complying with the mandatory pre-conditions of Section 25F of the Act, and is illegal and void.
9. The fact that the appellant has worked right from November 2, 1995 to July 26, 1996 continuously was not disputed by the respondent before the writ Court nor before this Court. What has been submitted is that the appellant was paid his monthly pay calculated on fixed daily wage only for actual working days which excluded Sundays and other holidays. Section 25B of the Act, for the purpose of Chapter V-A, defines 'continuous service'. Sub-section (1) of Section 25B lays down that a workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service, including service which may be interrupted on account of sickness or authorized leave or an accident or a strike which is not illegal or a lock-out or a cessation of work which is not due to any fault on the part of the workman. Sub-section (2) is a deeming provision which comprehends a situation where a workman is not in continuous service within the meaning of Sub-section (1) for a period of one year or six months, he shall be deemed to be as in continuous service under an employer, for a period of one year, if the workman, during the period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than (i) one hundred and ninety days in the case of a workman employed below ground in a mine and (ii) two hundred and forty days, in any other case. The case of the appellant is covered by Section 25B(2)(a)(ii) of the Act, as by deeming provision he has rendered 240 days of service within the period of 12 months commencing and continuing backwards from the relevant date i.e. the date of termination, See - Workmen of American Express International Banking Corporation v. Management of American Express International Banking Corporation (1985-II-LLJ-539)(SC).
10. In view of the definition of 'continuous service' in Section 25B of the Act, the contention that the appellant has not worked for Sundays, therefore, his actual working days comes to 236 days for which the appellant was paid wages, hence, cannot be said to have worked for 240 days in twelve calendar months preceding termination of employment cannot be accepted. The expression "actually worked under the employer" used in Sub-section (2) of Section 25B cannot mean those days only when the workman worked with hammer, sickle or pen, but must comprehend all those days during which he was in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute, Standing Orders, etc. See - decision in Workmen of American Express International Banking Corporation (supra).
11. As the appellant had worked for a continuous period of more than 240 days in a year including Sundays and other paid holidays and rates of daily wages have been so fixed which covers Sundays, in view of the decisions of the Supreme Court in Workmen of American Express International Banking Corporation, H.D. Singh v. Reserve Bank of India (supra), we hold that the appellant had actually worked for more than 240 days in 12 calendar months preceding to the date of termination of the employment of the appellant.
12. The contention that the appointment was illegal and was not in accordance with the Recruitment Rules, therefore, compliance of Section 25F was not essential, has also no substance. The five Judge Bench of the Supreme Court in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Presiding Officer, Labour Court, Chandigarh and Ors. (supra), a case where the appointment was not by the competent authority and the appointment was illegal as the Chairman has no power to appoint, therefore, it was also contended that on cessation of work compliance of Section 25F was not necessary. Analysing the definition of 'retrenchment' in Section 2(oo) observed that 'retrenchment' in Section 2(oo) would include termination by the employer for any reason whatsoever not otherwise covered by the cases excluded in Clauses (a) to (c). The appointment was not authorized was not a matter to which the workman was concerned. Therefore, compliance of Section 25F was not necessary.
13. This Court while considering the cases of illegal appointment or the appointment of employee was not valid in absence of sanctioned post and, therefore, their appointment did not amount to retrenchment, following the decision of the Supreme Court in Punjab Land Development and Reclamation Corporation (supra) and the definition of 'retrenchment; Under Section 2(oo) has held that the termination by the employer of the service of a workman for any reason whatsoever except those expressly excluded in the Section would amount to retrenchment. The definition of retrenchment Under Section 2(oo) is comprehensive one, intended to cover any action of the management to put an end to the employment of an employee for any reason whatsoever excepting in the excluded circumstances contained in Clauses (a) to (c) of Section 2(oo) as amended. Invalid or illegal appointment is not covered by any of the exceptions in the definition of 'retrenchment' in Section 2(oo). See the decisions in Iftikhar Ahmad Gauri, Chief Municipal Officer, Municipal Council, Govindgar, Rewa and M.P. Bank Karmachari Sangh v. Syndicate Bank (supra).
14. The Supreme Court in a recent decision in Uptron India Limited v. Shammi Bhan and Anr. (1998-I-LLJ-1165) (SC) has considered the ambit and scope of Clause (bb) which was inserted in the definition of Section 2(oo) by Amending Act, 49 of 1984 and observed that the Clause (bb) is an exception and if the services are terminated of a workman on account of non-renewal of the contract of employment on the expiry of the term of the contract between the employer and employee or if such contract of employment contained stipulation for termination of service and services of the workman are terminated under that stipulation, such termination, according to Clause (bb) would not amount to retrenchment. The contract of employment referred to in the earlier part of Clause (bb) is the same as is referred in the latter part of the Clause. This is clear by the use of words "such contract" in the earlier part of this Clause. What the Clause, therefore, means is that there should have been a contract of employment for a fixed term between the employer and a workman containing a stipulation that the services could be terminated even before the expiry of the period of contract. If such contract on the expiry of its original period is not renewed and the services are terminated as a consequence of that period, it would not amount to 'retrenchment'. Similarly, if the services are terminated even before the expiry of the period of contract but in pursuance of a stipulation contained in that contract that the services could be so terminated, then in that case also, the termination would not amount to 'Retrenchment'.
The Supreme Court so held taking support from the view taken in case of Escorts Ltd. v. Presiding Officer and Anr. 1997 JT 11 SC 521.
15. In the present case, true the order of initial appointment dated November 2, 1995 was for a period of one month for implementing the scheme of U.B.S.P. and other schemes of the State Government, but, after the expiry of the period of one month the appellant was continued in service and was ordered from time to time to do and execute the work and discharge his duties not only of the U.B.S.P. scheme which admittedly has not come to an end nor it has been pointed out before us that it was temporary. Besides, the appellant was permitted to execute the work of other schemes which are undertaken for implementation by the respondent Corporation for discharging its functions and for providing civic amenities within the limits of the Municipal Corporation at Jabalpur. Therefore, from the facts as set out it cannot be now contended that the work and duties which the appellant was entrusted was not of a continuous nature and the work for which the appellant was appointed has come to an end. The appointment in the circumstances though initially was for a fixed term of one month cannot be said to be a fixed term contract of service giving a right to the respondent of terminating the service on the expiry of the contract. Therefore, the question that the termination was in pursuance of the stipulation to that effect in the contract of employment would not arise. The respondent in the facts cannot contend that the termination would not amount to retrenchment and was saved by rule of exception.
16. Therefore, as the termination of services of the appellant was without complying with the pre-conditions of Section 25F, the termination would be illegal, invalid and void ab initio, therefore, the writ petition filed by the appellant could not have been thrown by granting liberty to the appellant to approach Labour Court. It would be proper to writ Court to give relief to the appellant invoking writ jurisdiction. To say so we rely on the decision of this Court in Mukhtyar Singh 's case (supra).
17. The decision relied by the learned counsel for the respondent are distinguishable on facts, hi Himanshu Kumar Vidyarthi and Ors. (supra) the Supreme Court observed that every department of the Government cannot be treated to be industry. When the appointments are regulated by the statutory rules, the concept of industry to that extent stands excluded. The appointment on the posts was not in accordance with rules. All the employees were engaged on the basis of need of the work on daily wages. Therefore, their disengagement from service was not construed to be retrenchment under the Act.
18. The decision in Ashwani Kumar and Ors. (supra) is not a case of retrenchment, but a case where person appointed on casual basis to discharge duties of existing post or vacancies was not considered to be a holder of post.
19. In Ram Ganesh Tripathi and Ors. v. State of U.P. (supra) the Supreme Court held that ad hoc employees cannot be treated as employees regularly appointed from date earlier to date of their regularisation nor could Government count their seniority from such earlier date in view of Rules 9 and 21-A of U.P. Palika (Centralised) Service Rules, 1966.
20. The case of Surendra Kumar Gyani v. State of Rajasthan (supra) deals with appointments of employees on temporary basis not made on regular basis not being permissible under relevant recruitment rules, services were terminated on availability of properly recruited employees by Public Services Commission, termination of services was held not illegal.
21. In State of Rajasthan and Ors. v. Rameshwar Lal Gahlot (supra) the Supreme Court considered the case of appointment for fixed period and observed that termination is not retrenchment and not illegal as is covered by Section 2(oo) of the Act.
22. As the order of termination of employment of appellant is void ab initio, the appellant would be treated continuous in employment from the date of termination of his service. The appellant would also be entitled to all ancillary benefits except the back wages which we are not inclined to grant, as the appellant has directly approached the writ Court under Articles 226 and 227 of the Constitution of India and without approaching Industrial/Labour Court where the enquiry could have been held about the gainful employment by the appellant during the period of forced unemployment, which is a matter of enquiry. To say so we rely on the decision in The Managing Director, U.P. Warehousing Corporation and Anr. v. Vijay Narayan Vajpayee AIR 1980 SC 840. However, itwould be open for the appellant to take recourse to the appropriate proceedings before the appropriate forum to claim back wages where the enquiry can be held about the gainful employment during the period of forced unemployment.
23. As a result of the aforesaid discussion, we allow the appeal, as a consequence of that the order of termination passed by the respondent is quashed. The appellant would be deemed to be continuous in service with all ancillary benefits, except back wages.
24. In the circumstances, we leave the parties to bear their own costs.