Punjab-Haryana High Court
Zila Parishad Fatehgarh Sahib vs Presiding Officer, Labour Court ... on 3 October, 2000
Author: R.C. Kathuria
Bench: R.C. Kathuria
JUDGMENT N.K. Sodhi, J.
1. This writ petition is directed against the award dated 6.5.1996 passed by the Presiding Officer, Labour Court, Patiala answering the reference made to it in favour of the workman and directing the reinstatement with continuity of service and, full back wages. Facts which are not in dispute may briefly be stated.
2. Ranjit singh respondent was employed by the Zila Parishad, Fatehgarh Sahib on 15.9.1993 as waterman for a fixed period of 89 days. He was thereafter given two extensions of 89 each and his last extension was upto to 24.6.1994. No further extension was granted to the workman and his services came to an end by efflux of time. He had completed more than 240 days of service and claimed that since the provisions of Section 25F of the Industrial Disputes Act, 1947 (for short the Act) had not been complied with he was entitled to re-instatment. He thus raised an industrial dispute which was referred for adjudication to the Labour Court. The reference was contested by the employer and it was pleaded that the services of the workman came to an end on account of the non-renewal of his contract of employment on its expiry and that such a termination did not amount to 'retrenchment' within the meaning of Section 2(oo) of the Act as, according to the management, the case fell within the exception contained in clause (bb) of Section 2(oo). The Labour, Court came to the conclusion that since the workman had worked for more than 240 days the provisions of Section 25F of the Act were attracted and that his case did not fall within the ambit of Section 2(oo) of the Act. Reliance in this regard was placed on a single Bench judgment of this Court in Haryana State Federation of Consumers Co-operative Wholesale Stores Ltd. v. Labour Court, Hisar and another, 1994(4) SLR 415 and also on a Division Bench Judgment in Randhir Singh v. State of Punjab and others, 1993(3) RSJ 212. Accordingly, the reference was answered in favour of the workman and the employer was directed to reinstate him with full back wages.
We have heard counsel for the parties.
3. Section 25F of the Act prescribes, the conditions precedent which have to be complied with before a workman can be retrenched. The negative form adopted by the provision coupled with the use of word 'until' ma'kes it clear that the conditions prescribed in the Section must be first satisfied before retrenchment can be validly effected. It is not necessary for us to refer to the conditions prescribed by this Section as it is common case of the parties that those conditions were not complied with in the case before us. The word 'retrenchment' is defined in clause (oo) of Section 2 of the Act which reads as under :-
"2(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) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (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; or
(c) termination of the service of a workman on the ground of continued ill- health."
The first part of this Section tells us what retrenchment means. According to this provision, 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. After giving a very broad meaning of the term 'retrenchment', the Legislature carved out a few exceptions by taking some of the terminations out of the definition of retrenchment. Clause (bb) which was introduced by Act 49 of 1984 contains one such exception. According to this clause, termination of the service of a workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry would not fall within the meaning of retrenchment. In the case before us, the workman was initially employed for a period of 89 days and his contract of employment xvas further extended on two occasions for 89 days each. Admittedly, the last extension expired on 24.6.1994 and his services stood terminated as the contract of employment was not extended thereafter. The termination was, therefore, effected on account of non-renewal of the contract of employment and the same squarely fell within the ambit of clause (bb) of Section 2(oo). In this view of the matter, the termination of the workman did not amount to retrenchment and, therefore, the provisions of Section 25F were not attracted and it was not necessary for the employer to comply with those provisions. It is true that the post of Waterman on which the workman had been engaged had not been abolished. In fact, the employer filled up that post on regular basis after inviting names from the Employment Exchange and also from the Soldier Board and District Welfare Department. These authorities sponsored the names of some persons but not that of the workman. The argument of the learned counsel for the respondent is that since the post had not been abolished and the work for which he had been engaged was still available, the termination amounted to retrenchment and could not be excluded under clause (bb) of Section 2(oo) of the Act. We are unable to agree with him. As already observed, the termination of the services of the workman squarely fell within the ambit of clause (bb) of Section 2(oo) and abolition of post is not a condition precedent for that exception to operate. Of course, in a given case, if an employer was to mis-use his power and continues giving extensions to a workman endlessly with a view to avoid compliance of Section 25F of the Act the matter would be different. Even in such a case, the termination would not amount to retrenchment but the employer would be held guilty of an unfair labour practice within the meaning of the Act. Mala fides will have to be alleged before the Labour Court and if they are established the termination would be set aside on account of the employer having committed an unfair labour practice and not because the termination amounted to retrenchment. In the instant case, it is not even the case of the workman that non-renewal of his contract of employment after the two extensions had been granted was mala fide with a view to deprive him of his rights under the Act. On the other hand, the employer filled up the post on regular basis after inviting names from the employment exchange and other concerned authorities. The action of the employer cannot but he held to be fair and justified.
4. In Haryana State Federation of Consumers Co-operative Wholesale Stores' case (supra), the workman was appointed on ad hoc basis on 23.3.1984 for 89 days and his appointment was extended from time to time and the last extension granted to him expired on 30.1.1987 whereafter his services stood terminated. On a dispute raised by him the Labour Court directed his reinstatement with full back wages and that award was upheld by a learned Single Judge of this Court. The contention that the services of the workman had been terminated on account of non-renewal of his con-
tract of employment and, therefore, it did not amount to retrenchment was rejected and it was observed as under :-
"A perusal of the factual position, as noticed above, shows that the respondent-workman had virtually remained in continuous employment from 23.3.1984 to 30.1.3987. He had served for more than 3-1/2 years. He had not been employed for executing a project nor were his services terminated at the expiry of the initial period of employment. In fact, he had continued in service on account of a series of extension orders. The post held by him was no! even alleged 10 have been abolished. It was not even suggested that there was no work for him..... In such a case, the acceptance of the petitioner's plea would virtually amount to giving a go-bye to the various provisions of the Act. A daily wage worker would never be entitled to any benefit under the Act for his service contract ends with the day. It would enable the employer to keep an employee in service for 30 years by giving periodic extensions after short breaks or even on daily wage and then take the plea of non-renewal' of the contract of employment. As at present, such a plea cannot be accepted.
The present state of affairs in the country when the 'workmen' are doing everything but 'work' and even staff in hospitals resorts to frequent slrikes, it may be desirable or even necessary to suitably amend the law. However, as at present the law does not appear to be that action such as that taken by the petitioner would not amount to retrenchment. Such is not the position of law today. The plea of the petitioner is, consequently, rejected."
5. We have perused this judgment carefully and with utmost respect to the learned Single Judge we have not been able to persuade ourselves to agree with the view expressed therein. In a given case, the employer may after giving some extensions to the workman like to keep the post vacant for economic or other good reasons and merely because the work for which the workman had been employed was still available or that the post occupied by him had not been abolished by itself would not mean that the termination on account of non- renewal would amount to retrenchment. The language of the exception contained in clause (bb) of Section 2(oo) of the Act is quite clear and unambiguous and if this was the intention of the Parliament then the language used therein would have been different. As already observed, if the workman can allege apd prove that the extensions given to him were not bona fide and were meant to deprive him of his rights under the Act, the employer would be held guilty of unfair labour practice and in that event his action in not renewing the contract of employment would be set aside on that ground. Even in such a case, the termination would not amount to retrenchment. We have, therefore, no hesitation in overruling the view expressed in Haryana State Federation of Consumers Co-operative Wholesale Stores case (supra). Even the learned Single Judge in that case has observed that the law needs to be suitably amended. We need not go into the kinds of amendments that may be necessary but we are of the view that clause (bb) as introduced in the year 1984 is clear and unambiguous and excludes from the concept of 'retrenchment all terminations of services which are effected on account of non-renewal of contract of employment unless the act of the employer is vitiated on account of unfair labour practice.
6. In Randhir Singh's case (supra), the provisions of clause (bb) of Section 2(oo) of the Act did not come up for consideration. In that case, the workman had continuously worked for more than 240 days and yet he was shown the door without complying with the provisions of Section 25F of the Act. The workman approached this court directly under Article 226 of the Constitution and his writ petition was dismissed by a learned Single Judge observing that "no order of termination could be passed in view of the fact that the petitioner was employed for a fixed term and after its expiry he automatically ceased to be in service". The Let-(ers Patent Appeal filed by him was allowed on the ground that the workman had put in more than 240 days of service and his service could not be terminated without complying with Ihe provisions of Section 25F of the Act. The judgment does not advance the case of the workman before us and is, therefore, of no help to him.
In the result, the writ petition is allowed and the impugned award dated 6.5.1996 quashed. There is no order as to costs.
7. Petition allowed.