Jharkhand High Court
The Management Of Delhi Public School ... vs Presiding Officer, Labour Court, ... on 3 August, 2004
Equivalent citations: [2004(4)JCR733(JHR)], (2005)ILLJ1068JHAR, 2005 AIR - JHAR. H. C. R. 631, (2005) 1 LABLJ 1068, (2005) 2 LAB LN 456, 2005 LABLR 515, (2005) 2 SCT 599, (2004) 4 JLJR 418, (2005) 2 CURLR 153, (2005) 104 FACLR 265
Author: P.K. Balasubramanyan
Bench: P.K. Balasubramanyan, Tapen Sen
ORDER P.K. Balasubramanyan, C.J.
1. The appellant is the petitioner in W.P. (L) No. 2286 of 2001. It is the Delhi Public School, Bokaro Steel City through its Principal. The School gave employment to one Pratha Mahto in terms of a letter dated 29.10.1990. The letter in- formed Pratha Mahto that he was being offered ad-hoc appointment as a Cook- cum-General duties for the Delhi Public School Students/Staff Facility Centre at Delhi Public School, Bokaro Steel City from 1st October, 1990 to 30th March, 1991 effective from the date of his joining, on a consolidated salary of Rs. 900/- per month. It was also offered that in addition to the pay, he will also be provided free food facilities on all working days. The letter of offer specified that the services of Pratha Mahto will be purely temporary and can be terminated by one month's notice on either side. He was also informed that in case the Students/Staff Facility Centre was to be closed down due to any reason whatsoever during the period, his engagement would automatically be considered as terminated. He was to be governed by the Delhi Public School Society Leave Rules. Pratha Mahto went into employment by accepting this offer. Though his terra as per the letter ended on 30.3.1991, it is seen that he was allowed to continue till 2.1.1992 and there- after, he was not in the employment of the School. The dispute was raised on bahalf of Pratha Mahto by respondent No. 2 Union. The dispute was referred to the Labour Court. The question referred was :
"Whether the termination of service of Shri Pratham Mahto, Rasoiya-cum-General duty Kamgar of Delhi Public School. Sector-4, Bokaro Steel City is proper? If not, whether he should be reinstated on work or/and should be given compensation"?
2. The Union claimed in the written statement filed before the Labour Court that Pratham Mahto was a workman in the School and worked for more than 240 days and that his services could not be terminated except in accordance with the Industrial Disputes Act; that the School had violated the provisions of Section 25F of the Act; that the termination was illegal and unjustified and that he was entitled to reinstatement.
3. The School on the other hand con- tended that the appointment of Pratham Mahto was only on ad-hoc basis for a fixed period; that he was not continued there- after, that he was not entitled to any relief since no retrenchment was involved. It was also pleaded by the School that the Student/Staff Facility Centre under which a Canteen was being run and for which the ad-hoc appointment was given to Pratha Mahto, was closed and hence there was no need for a Cook-cum-General duties, for the School and that was the reason why the appointment of Pratham Mahto was not continued after 2.1.1992.
4. On behalf of the workman, a Bank Pass Book was produced to show that he was continued in the employment of the School even after 30.3.1990 and that he was allowed to continue till 2.1.199.2 when his service was terminated. Another workman was examined as W.W. 1 who stated that normally appointments were made only on ad-hoc basis and in the case of some others, the appointments were subsequently regularized. The workman himself stated that he was employed not only as a Cook in the canteen but he was also attending to other works like attending the telephone in the office of the Head-master.
5. On behalf of the Management, its witness stated that the appointment of the workman was on ad-hoc basis and there was no need for appointing another Cook in the position in which Pratha Mahto was appointed on ad-hoc basis since the Canteen has been closed.
6. The Labour Court, did not specifically address itself to the question whether the School in question was an Industry. It is true that a school may come within the definition of Industry Under Section 2(f) of the Act, but it does not mean that every school is ipso facto an Industry as defined under the Act. But for the purpose of this case, we do not think it necessary to pursue this aspect further. The Labour Court further proceeded to hold that since the workman had continued to work even beyond 30.3.1991 and till 2.1.1992 it must be taken that he was entitled to regularization in service of the School and, consequently, his termination was bad. The Labour Court, therefore, ordered reinstatement of the workman with full back wages and other consequential benefits.
7. The School filed the writ petition before this Court. The learned single Judge, after referring to the definition of Industry, proceeded to reject the argument that the school was not an Industry. While reading the offer of appointment and the clause mentioned therein that in case the Students/Staff Facility was closed, there will be no necessity for the workman, the learned Judge proceeded to hold that as regards Pratha Mahto, it was a termination or retrenchment and it was not a situation covered by Section 2(oo) and (bb) of the Act. The learned Judge, therefore, held that the termination will become a retrenchment requiring compliance of Section 25F of the Act and since there is no compliance of Section 25F of the Act, there was no perversity of the order of the Labour Court. The learned Judge further held that since Pratha Mahto had worked for 240 days continuously, he was entitled to be reinstated as ordered by the Tribunal. This judgment of the learned single Judge is challenged in this appeal.
8. The . learned Advocate General. who appeared for the appellant-School, submitted that in the case of an adhoc appointment, and that too for a fixed term, there was no question of any retrenchment or violation of Section 25F of the Act. He referred to the decision of the. Supreme Court in the State of Rajasthan and Ors. v. Rameshwar Lal Gahlot, (1996) 1 SCC 595. In that decision, the Supreme Court has noticed that when an appointment was for a specific period, the termination on expiry of such period, unless found to be malafide or in colourable exercise of power, are to be held valid and Section 25F of the Act, was not attracted. Hence, neither the relief of fresh appointment nor that of reinstatement could granted. The Supreme Court relied in its earlier decision in M. Venugopal v. Divisional Manager, LIC, (1994) 2 SCC 323. The learned Advocate General also pointed out that since the Canteen facility itself was discontinued, there could be no occasion for reinstatement. Counsel referred to the decision of the Supreme Court in Surendra Kumar Sharma v. Vikas Adhikari and Anr., 2003 (4) JCR 32 (SC) : 2003 (4) Supreme 61. In that decision, their Lordships held that when posts temporarily created for fulfilling the needs of a particular project or scheme limited in its duration comes to an end, a person employed in such a scheme, cannot claim regularization of service. In answer, learned counsel for the workman submitted that the learned single Judge has dealt with this aspect and has held that even if the Canteen facility was closed, the service of the workman could be utilized elsewhere in addition to the work of a Cook. He was also attending to other duties in relation to the School, Counsel also submitted that since the ad-hoc appointment was not terminated by 30.3,1990 and. the workman was allowed to continue until 2.1.1992, this was a case where the termination of the workman was not in consonance with Section 25F of the Act, and, in that context, there was no reason to interfere with the decision of the Single Judge.
9. It is clear from the letter of appointment that the appointment was an ad-hoc appointment and it was purely temporary. It is also clear that even during the currency of the period of employment, the same has come to an end as the facility rendered has been closed down. It is true that the workman was allowed to continue after the expiry of 30. 3. 1991 and until 2.1.1992. There is no finding either by the Labour Court or by the learned single Judge that the case of the School that the Students/Staff facility Centre had to be discontinued for economic reasons, is not acceptable for any reason. In this case, it is not as if the stopping of the facility was not proved. In this situation, it is clear that on the terms of appointment and the withdrawal of the facility, the Labour Court could not have ordered for reinstatement of the workman. The learned single Judge, in our view, was clearly in error in finding that the School could be directed to utilize the services of the workman otherwise even though the facility of canteen had been closed down.
10. Then the question is whether there was any retrenchment in this case. Section 2(oo) of the Act, defines the word "retrenchment" as meaning the termination by the employer of the services of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action. But the definition itself says that certain circumstances are not covered by it. In that context, clause (bb) has to be referred to. It provides that if termination of the services of the workman is 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 that behalf contained therein, it would not amount to retrenchment. Hence, merely because the workman was allowed to work for a short period beyond the period, mentioned in the letter of appointment, it would not mean that a retrenchment is involved. Here, the contract was terminated 'on the basis of the stipulation in the letter of ad-hoc appointment that his services would not be required, once the Students/Staff facility Centre is closed down. Obviously, on the closing of the services, the service of Pratham Mahto was dispensed with. This cannot be retrenchment as defined.
11. In our view, the Labour Court has not properly appreciated or has ignored the relevant aspect of the closing of the Canteen. The learned single Judge has also not adverted properly to this relevant aspect while refusing to interfere at the instance of the School. We are, therefore, satisfied that interference is called for in this appeal.
12. Hence, we allow this appeal and setting aside the decision of the learned single Judge and allow W.P. (L) No. 2286 of 2001 filed by the School. We quash the award of the Labour Court and answer the question against the first respondent.