Andhra HC (Pre-Telangana)
K. Govardhana Reddy And Ors. vs Asst. Engineer (Civil), Andhra Pradesh ... on 8 September, 1989
Equivalent citations: (1990)ILLJ439AP
ORDER
1. The five petitioners in this case are qualified Civil Engineers, who were appointed as Work Inspectors on daily wage basis from the various dates given in the affidavit filed in support of the writ petition. They had been working till the end of May 1988 when their services were discontinued on the ground that they are work-charged employees on daily wage basis in accordance with Standard Schedule of rats approved by the Board of Chief Engineers.
2. The petitioners seek a writ of mandamus directing the respondents to continue them in service with the same terms and conditions on which they were working.
3. The basic facts of the case are that the petitioners were engaged as work-charged employees on daily wage basis to complete the work on a project for the construction of Mother Dairy at Hayatnagar. The term of employment of the petitioners was for the duration of the work of Mother Dairy which was expressly stipulated and agreed to by the petitioners. It seems that the work of construction at the Mother Dairy at Hayatnagar was completed in the month of May 1988. The petitioners were, therefore, requested orally to stop attending the work spot with effect from 1st June, 1988 in view of the fact that the work for which they were engaged was already over. The contention of the petitioners is that they have worked for more than 240 days and, therefore they cannot be retrenched except in accordance with the provisions of Section 25-F of the Industrial Disputes Act, 1947 (Act No. 14 of 1947) hereinafter referred to, for short, as 'the Act', without one month's notice given to them in advance. They have also made an allegation in the additional affidavit filed by them that the list of seniority has not been maintained by the respondent Andhra Pradesh Dairy Development Co-operative Federation Limited as required under Rule 79 of the A.P. Industrial Disputes Rules, 1958 and further that three persons, viz., (1) Thajuddin (2) Muralikrishna and (3) Seshu who are juniors to the petitioner, are being continued in service.
4. From the above facts it is clear that the petitioners were employed for the completion of a specific task, viz., construction of Mother Dairy at Hayatnagar. They were working on the said project as work-charged employee in addition to the regular salaried employees. Moreover, it is not denied that the term of employment of the petitioner was only for the duration of the work of Mother Dairy and this term of employment was expressly stipulated and agreed to by the petitioners.
5. Mr. M. P. Ugle, learned counsel for the petitioners, has stressed the point that the petitioners having been engaged to work for more than 240 days are clearly entitled to the benefit of Section 25-F of the Industrial Disputes Act and are entitled to one month's notice in writing indicating the reasons for retrenchment. It is an admitted fact that no notice whatsoever has been given to the petitioners in this matter on the ground that they are work-charged employees and according to the learned counsel for the respondents discontinuation of the services of the petitioners does not constitute retrenchment in accordance with Section 2(00)(bb) of the Act. Section 2(00)(bb) of the Act defines 'retrenchment' in the following terms :-
"Section 2(00). "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
(b) xx xx xx (bb) termination of the service of the workman as a result of the non-renewal of the contract of the 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;"
A reading of this section reveals the point that clause (bb) of sub-sec (00) of Section 2 of the Industrial Disputes Act has been inserted by an Amendment Act No. 49 of 1984 with effect from 18th August, 1984. It provides that the termination of the service of the workman as a result of the non-renewal of the contract of the employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf shall not constitute retrenchment. In this matter the petitioners were engaged for a specific work which was over by May 1988. Thereafter there is no work left for the petitioners to do in the respondent - Dairy Development Co-operative Federation. Their appointment had been made subject to the specific condition that the term of employment was for the duration of the work of Mother Dairy. Under these circumstances their case is clearly governed by the provisions of Section 2(00)(bb) of the Act and does not fall within the term "retrenchment" as visualised under Section 2(00) of the Act. In this view of the matter it cannot be said that the petitioners are entitled to a notice under Section 25-F of the Act before their services are terminated by the respondents.
6. Mr. M. P. Ugle, learned counsel for the petitioners, has relied upon a decision reported in Daily Rated Casual Labour employed under P&T Department v. Union of India (1988-I-LLJ-370) which is a case dealing with an entirely different situation. The decision in the above said case is concerned with the daily rated casual labourers who were engaged in the P&T Department and who were being paid wages less than the minimum pay scales applicable to the regular employees belonging to corresponding cadres. The Supreme Court, applying the principle of 'Equal pay for equal work' to those daily rated casual labourers, held that they are entitled to corresponding Dearness Allowance and additional dearness allowance. The Supreme Court also directed the respondents therein to prepare a scheme for absorbing the casual labourers as far as possible in the regular cadre of service. It is clear beyond any doubt that the ratio of the above said case is primarily concerned with the question of the rates of minimum pay to the daily rated casual labourers, and has nothing to do with the controversy arising in this matter before me similarly the decision reported in U.P.I.T. Department, C.P.S.W. Association v. Union of India (1988-I-LLJ-396) deals with the question of workmen employed as contingent paid staff of Income-Tax Department who were working on daily wages for nearly eight years or more. The Supreme Court relying upon its earlier decision reported in the P&T Dept. v. Union of India directed the Government to pay wages at such rates of the regularly employed workers in the corresponding cadres. In fact, the above two decisions run parallel to each other and do not have anything in common with the instant case. The learned counsel for the petitioners has also relied upon a decision reported in Madan Singh v. State of Haryana (1988-II-LLJ-333) wherein the facts run on the following lines : Certain employees were engaged in the work-charged department for many years. Their services were terminated and fresh recruitment was made almost simultaneously. The government of State of Haryana had been passing orders in the past absorbing persons like the petitioners from time to time. The main consideration on the basis of which the case was decided in favour of the work charged employees is in the following terms (1988-II-LLJ-333 at 334) :
"... We are of the view that in the circumstances, appearing in these cases, there was no justification for termination of the services of the appellants and the petitioners in the respective proceedings before us. The State Government had come forward with orders from time to time for absorption of persons like the parties before us. Taking into consideration their continuous service, the benefits conferred under those Government orders are available to the appellants and, therefore, they are entitled to continue in service."
I deemed it fit and proper to quote the relevant passage in the above decision of the Supreme Court to high-light the point that the decision in that matter was based essentially on the question of the State Government coming forward with orders from time to time for absorption of persons similarly placed like the petitioners. The Supreme Court, therefore, held that they should also be entitled to the same benefit indicated in the Government orders passed in regard to others for regularisation of their services. This decision also is distinguished on the ground stated above and is not applicable to the facts of the case on hand. The decision reported in Rattanlal v. State of Haryana (1986-I-LLJ-23) is a case in which the question of appointment of teachers on ad hoc basis at the commencement of the year and termination of their services before summer vacation came up for consideration before the Supreme Court. It was clearly held by the Supreme Court that the policy of following such practice is violative of Articles 14 and 16 of the Constitution. A direction was given to the State Government to make appointments as per rules and fill up the vacancies in which the teachers who are working on ad hoc basis may be appointed. It is manifest that the above said decision is primarily concerned with the question of ad hoc appointment of teachers at the commencement of the academic year whose services were given a break in summer vacation to avoid continuity of service. This decision has nothing to do with the present controversy arising in this case.
7. Mr. P. Ugle, learned counsel for the petitioners, has also relied upon a decision reported in Y. V. A. S. Chalapathi Rao v. A. P. S. Housing Corporation Ltd. 1989 (1) ALT (NRC) 15 in which I had held that termination of services of Assistant Engineers appointed temporarily under certain programmes by State Housing Corporation after two years of service without notice was violative of Articles 14 and 16 of the Constitution. Since this decision has been relied on to a very large extent by the learned counsel for the petitioners, it would be necessary to clarify the point that the said decision is based on the fact that the services of the petitioners were utilised for other purposes also apart from the flood housing programme in West Godavari District for which they were initially recruited. During the period of two years when they were working it came to light that apart from the flood housing programme they had been engaged in several other capacities by the A.P. State Housing Corporation Limited. Moreover, it was a point of an incontrovertible nature that atleast one person who was also assigned to the flood housing scheme along with the petitioners was still being continued in service while the petitioners were asked to depart from their work. In that view of the matter it was held that as a result of the combined effect of the petitioners being utilised for services other than those for which they were recruited and also the fact that another person similarly placed like the petitioners was being continued in service the action of the respondent-Corporation was held to be violative of Articles' 14 and 16 of the Constitution. The matter arising in the instant case does not bear any similarity with the facts obtaining in the earlier decision rendered by me.
8. Lastly, Mr. M. P. Ugle, learned counsel for the petitioners has strenuously argued that three persons Thajuddin, Muralikrishna and Seshu, who were juniors to the petitioners and who were also appointed as Work Inspectors on daily wage basis, were being continued in the same category. On an earlier occasion when this question was raised, I had specifically put the learned counsel for the respondents on guard to give the information about the truth of this allegation as to whether some of the juniors were continued in service while discounting the services of the petitioners. The learned counsel for the respondents took time and has stated that it may be recorded that none of the above three persons is being continued in service.
9. The learned counsel for the respondents has placed before me the Full Bench decision reported in P. Karunakaran v. Chief Commercial Supdt. (1989-I-LLJ-8) wherein it was held that where a private labour contractor was running a vegetarian refreshment room at Railway Station and engaged some workers for the same, they cannot claim right to absorption in the service of the Railways consequent upon the termination of their employment by the contractor as his licence for running the canteen had expired. The Full Bench of Kerala High Court held that it would result in gross discrimination against the persons who are trying to get entry into the employment of the Railways if the petitioners were absorbed in the regular service to the detriment of all other eligible persons who may be entitled to the same. The learned counsel for the respondents has also placed reliance upon another decision reported in State of Rajasthan v. Jaipur Region P.W.D. 1986 (53) FLR. 220 wherein it is held that notice under Section 25-F of the Industrial Disputes Act is not necessary if the retrenchment is under an agreement which stipulates the date of termination of service. In that case certain persons were employed as Helpers in Famine Operation. Since Famine Operation was over, the services of such persons were terminated. Their termination was held to be justifiable and they were not entitled to any benefits under Section 25-F of the Industrial Disputes Act.
10. After considering the matter from every considerable angle, I am of the opinion that this writ petition is devoid of any merit and is fit to be dismissed. The writ petition is, therefore, dismissed. No costs.