Punjab-Haryana High Court
Haryana Warehousing Corporation vs Presiding Officer, Industrial ... on 18 October, 1996
Equivalent citations: (1997)115PLR99
Author: R.L. Anand
Bench: R.L. Anand
JUDGMENT R.L. Anand, J.
1. The precise and concise point for determination in the present writ petition would be as to whether the termination order terminating the services of the workman-respondent No. 2 Shri Naresh Kumar amounts to retrenchment as envisaged under Section 2(oo) of the Industrial Disputes Act, 1947 (for short 'the Act') or this action falls within the exception, i.e. (bb) of Section 2(oo) of the Act. ?
2. The present writ petition on behalf of the Haryana Warehousing Corporation, Chandigarh (for short 'the Corporation') has been filed under Article 226 of the Constitution of India for the issuance of a writ in the nature of certiorari, quashing the award (annexure P-13), passed by the Labour Court, Rohtak, and it has been averred in the Writ Petition that the Corporation is engaged in the business of storage of foodgrains and other materials in the State of Haryana and it has constructed several godowns and warehouses. It had to employ various work mistries and labourers for temporary duration for the purposes of specific jobs of construction. Such jobs of construction of the warehouses/godowns were taken up in Ladwa, Radour and Kaul. The project of constructing the warehouses/godowns at Ladwa was undertaken in the year 1985. Since the duration of the construction was not definite and depended upon various factors, such as availability of budget provision, availability of finance, availability of building material and manpower etc., respondent No. 2 was appointed as work mistry for the initial period of three months on 21.2.1985 and respondent No. 2 joined his duties on 26.2.1985 by submitting the joining report along with his qualification certificate in support of his date of birth. The appointment of respondent No. 2 was a contractual one for specified period and in case of expiry of period of employment without renewal of contract, he ceased to remain an employee without any order of termination or retrenchment as contemplated by exception (bb) of Section 2(oo) of the Act.
3. It was also pleaded that since the work of construction of the warehouses/godowns at Ladwa continued even after 25.5.1985, respondent No. 2 was appointed for another period of 8 weeks w.e.f. 28.5.1985, i.e., upto 22.7.1985. He was again employed for another period of six weeks w.e.f. 24.7.1985 and this period came to an end on 3.9.1985. Since the work at Ladwa was still continuing and there was a demand for work mistry, another appointment was given to respondent No. 2 for a period of four weeks w.e.f. 5.9.1985 to 2.10.1985. As the finishing touches were continuing, another contract for employment was issued to respondent No. 2 w.e.f. 4.10.1985 to 3.12.1985, i.e., for two months. The appointment of respondent No. 2 was for a specific purpose. That was for the purpose of construction of the godowns/warehouses at Ladwa. Thereafter, after the completion of the work, the contract for employment of respondent No. 2 was not renewed at Ladwa and his services stood automatically terminated on the expiry of the period of contract. This automatic termination of contract did not amount to retrenchment, dismissal or termination. Therefore, no order to that effect was passed nor there was any need to do so.
4. It was also pleaded that around this time another project of the petitioner started for the construction of the godown/warehouse at Radaur, District Kurukshetra and respondent No. 2 was again employed as Work Mistry for the construction of State Warehouse/Godown at Radaur on 3.1.1986 and he joined the duty on 4.1.1986. The construction at Radaur also experienced delay and the contract was renewed on 7.4.1986 for another three months. Delay further hampered the work and as a result of that a further contract of three months was given to respondent No. 2 on 28.6.1986 and with the expiry of three months, the contract came to an end. It was further pleaded by the petitioner that after the completion of the project at Ladwa and Radaur, a third project at Kaul (Karnal) was started and respondent No. 2 was appointed as Work Mistry for three months with effect from 25.10.1986. The project of Kaul was a big project and extensions were given from time to time to respondent No. 2. The work at Kaul was almost complete and since the finishes touches were to be given, respondent No. 2 was granted last ex post facto sanction with effect from 3.12.1987 to 25.12.1987. With the completion of the work, the services of respondent No. 2 stood automatically terminated as per the terms of employment and it did not amount to an act of retrenchment. Respondent No. 2, however, felt aggrieved by the non-renewal of his contract and he raised an industrial issue by serving demand notice dated 11.2.1988, and his allegations in the demand notice were specifically denied and the State Government referred the matter to the Labour Court by making a reference as to whether the termination of services of respondent No. 2 was justified and was in order. Finally after entertaining the statement of claim, written statement and the replication, the Labour Court gave the award (Annexure P13), holding that the action on the part of the petitioner amounted to termination within the meaning of Section 2(oo) of the Act and since the provisions of Section 25 of the Act have not been complied with by the petitioner before the alleged termination of the services of respondent No. 2, therefore, the Labour Court gave declaration that the workman was entitled to be reinstated with continuity of service and full backwages and this award of the Labour Court has been challenged by the petitioner-Management in the light of the provisions of Section 2(oo)(bb) of the Act, by inter alia pleading that respondent No. 2 was employed for a specified work and for a specific period and non-renewal of his contract did not amount to 'retrenchment' within the meaning of Section 2(oo) of the Act; rather it is covered under Exception (bb) of the said Section.
5. Notice of the writ petition was given to the respondent-workman, who filed reply and denied the allegations and he reiterated his stand by pleading that he remained in service with effect from 26th February 1985 to 26th December, 1987 with notional breaks. He was not appointed for a specified work. The notional breaks have been caused by the petitioner so as to deprive the respondent of the benefits of the Act and this act on the part of the petitioner-management amounted to an unfair labour practice. It was further pleaded by respondent No. 2 that those work Mistries, who were junior to him, have been retained in service while his services were terminated as he was claiming regularisation and for that reasons the Corporation has also not complied with the provisions of Section 25-G of the Act. Supporting the award, respondent No. 2 has prayed for the dismissal of the writ petition, which is being disposed of with the assistance of Shri P.K. Mutneja, Advocate, appearing for the Corporation, and Shri S.C. Kapoor, Senior Advocate, assisted by Shri Ashish Kapoor, Advocate, appearing on behalf of respondent No. 2, and I have gone through the records of this case with their assistance.
6. It is true that termination of the services of the workman as a result of non-renewal of the contract of employment on its expiry and on such contract being terminated under a stipulation in that behalf contained therein does not amount to retrenchment as contemplated under Section 2(oo) of the Act. If a person is engaged for a specific period or for the execution of a specific work and a clear stipulation is made in the contract of employment that the services shall be terminated at the expiry of the work, the workman shall not be entitled to claim hat he has been retrenched or that the action is violative of the provisions of the Act. In such a situation, even the provisions of Section 25-F of the Act shall not be attracted. However, all these are the questions of fact which have to be proved by the petitioner by leading cogent evidence.
7. Before I deal with the submissions raised by the learned counsel for the parties in support of their case, I would like to refer to the operative portion of the impugned award (Annexure P13) Paras Nos. 9 and 10 of the award are relevant, vide which the learned labour Court had decided issue No. 1 in favour of the workman and against the petitioner-Corporation. The said paras are reproduced as under:-
"9. The authorised representative for the management was frank enough to concede at the bar that the workman had completed 240 days of service preceding twelve calendar months and that the management while terminating him had not followed the provisions of Section 25-F of the Act. The point for consideration is whether the termination of the workman amounts to retrenchment or not. The management has pleaded that since the workman was appointed for specific periods time and again for specific work, therefore, his termination on the completion of the specific work does not amount to retrenchment and that his case falls within the exception as contained in sub-clause (bb) of Section 2(oo) of the Act. There is no dispute that the workman was appointed time and again for specific periods and that he had worked at several places as work-mistry. Every time the workman used to be given fresh appointment letter, when he used to be appointed by the management. There are several appointment letters on the record arid there is no mention to any of the appointment letters that the workman was appointed for a specific work. Had the workman been appointed for a specific work, then there should have been mention of this fact in the appointment letters and the non-mention of the fact indicates conclusively that the workman was not appointed against a specific job, therefore, it can be said that the termination was retrenchment and since it was retrenchment and the management had not complied with the mandatory provisions of Section 25-F of the Act, therefore, the termination of workman was void ab initio.
10. Apart from the above, the management had also violated the provisions of Section 25-G of the Act. The workman has stated that the management had retained Satish Deep Chand and Sultan in service who were juniors to him at time of his termination. MW-I V.K. Chakarvarti could not deny in his statement that Satish, Sultan and Jai Singh were junior to workman or not and that whether these persons are still in service of management or not. He simply stated that he does not remember if Satish, Sultan and Jai Singh are still working with the management or not. He had not the courage to say that those persons are not juniors to workman and that they are also not in service of management at the moment. His reply is misleading on this point. The only conclusion which can be drawn from the statement of MW-1 is that the management while terminating the workman from service and retaining Satish and Sultan juniors to workman in service and even those persons are still in the service of management, had thus violated the provisions of Section 25-G of the Act also."
Now it may be useful for me to refer to the various annexures in order to see whether the contentions which have been raised by the learned counsel Shri P.K. Mutneja are borne out and can be supported from the evidence led by the parties. Annexure P1 is the office order dated 21.2.1985 by which Shri Naresh Kumar (respondent No. 2) was appointed as Work Mistry at State Warehouse, Ladwa, on purely temporary/ad hoc basis for a period of three months in the pay scale of Rs. 350 - 500 plus usual allowances under the rules of the Corporation and respondent No. 2 was called upon to report for duty, but not later than. 6.3.1985. It is a common case of the parties that respondent No. 2 joined the services of the petitioner-Corporation on 26.2.1985. The second office order is dated 9.12.1985 (Annexure P2), regarding which I would like to make a reference, which would show that ex post facto sanction was accorded for the appointment of respondent No. 2. as Work Mistry at State Warehouse, Ladwa, for a period of two months, starting from 4.10.1985. Annexure P3 is the office order dated 3.1.1986 by which respondent No. 2 was appointed as Work Mistry at State Warehouse, Radaur. Annexure P4 is yet another office order dated 22.7.1986 vide which ex post facto sanction was accorded for the appointment of Sh. Naresh Kumar as Work Mistry at State Warehouse Radaur. Annexure P5 is the office order dated 20.10.1986 vide which respondent No. 2 was again appointed as Work Mistry at State Warehouse Kaul on the same terms and conditions. Annexure P6 would show about the ex post facto sanction having been given to respondent No. 2 for the period 5.10.1987 to 30.11.1987 when he was working as a Work Mistry at Kaul. The last Annexure is P7 vide which again ex post facto sanction was accorded to respondent No. 2 to work as Work Mistry at Kaul for a period from 3.12.1987 to 31.12.1987.
8. Making an endeavour to bring his case within the ambit of Section 2(oo)(bb) of the Act, Shri P.K. Mutneja argued that as per the appointment letters issued by the Corporation from time to time it stands established that respondent No. 2 was engaged in different industrial establishments as defined under Section 2(ka) of the Act for a limited period and for a specified work, i.e., for the construction of the godowns. Therefore, respondent No. 2 cannot be permitted to say that termination of his services would amount to retrenchment under section 2(oo) of the Act, nor he can be permitted to allege that his termination is bad due to the non-compliance of the provisions of Section 25-F of the Act.
9. I have considered the primary submission made by the learned counsel for the petitioner and I am of the considered opinion that his endeavour does not cut ice. I have just made a brief mention of Annexures P1 to P7, i.e., the various office orders appointing respondent No. 2 or granting ex post facto sanction for the job of Work Mistry and the perusal of the same would reveal that in none of the office orders it has been incorporated that the appointment of respondent No. 2 was against a specified work; rather the action on the part of the petitioner clearly amounts to an unfair labour practice when it indulged in issuing different appointment letters with notional breaks so as to give a colour to the service of respondent No. 2 as contractual one, so that in case of necessity the petitioner-Corporation may take the advantage of the provisions of Section 2(oo)(bb) of the Act. In the annexures P1 to P7 only the place of posting has been given from time to time, i.e., at village Ladwa, Kaul or Radaur, but there is no indication that respondent No. 2 was being appointed against a specified work or that there was no indication that each project of the petitioner was an independent industrial establishment as has been tried to be shown by the learned counsel for the petitioner. Once it is established and proved that respondent No. 2 was doing the job of Work Mistry under the petitioner-Corporation, and this part of the reference has been rightly appreciated by the Labour Court, this Court would not interfere in the conclusions drawn by the Labour Court, which are based on the appreciation of evidence.
10. Shri P.K. Mutneja has also referred to various citations in order to fortify his contentions and first in attempt is M. Venugopal v. The Divisional Manager, Life Insurance Corporation of India, Machilipatnam, Andhra Pradesh, and Anr., JT 1994(1) S.C. 281. This is a case which can be safely distinguished from the facts in hand. In the cited case the service of the appellant was terminated while he was on probation on the ground that he failed to achieve his target business and in these circumstances the Hon'ble Supreme Court was to determine whether the termination of service of the appellant amounts to retrenchment within the meaning of Section 2(oo) and the view was expressed by the Hon'ble Supreme Court in the negative. In the present case respondent No. 2 was not on probation nor there was any stipulation in his contract of employment that in the event of his work having been found unsatisfactory, while on probation, his services could be terminated without any notice. In the present case respondent No. 2 worked for 240 days right from 1985 to 1987 and the provisions of Section 25-F have not been complied with and in these circumstances the action on the part of the petitioner would amount to termination within the meaning of Section 2(oo) of the Act, which clearly states that it will be considered as termination of the service of the workman for any reason whatsoever. It was obligatory on the part of the management to comply with the provisions of Section 25-F of the Act before terminating the services of respondent No. 2 and the fact of its non-compliance entitles the Labour Court to pass an award in favour of the workman declaring that he is entitled to reinstatement with continuity of service and full back wages.
11. The second authority which has been relied upon by the learned counsel for the petitioner is Morinda Co-op. Sugar Mills Ltd. v. Ram Kishan and Ors. etc., JT 1995(6) S.C. 547. This authority is also not helpful to the learned counsel for the petitioner. It was a case of seasonal workers, who were employed by a sugarcane factory against the seasonal work. In the present case the employment of the respondent-workman was neither seasonal nor against a seasonal work. He was employed as a Work Mistry for the construction of the godowns/warehouses, though it may not be the primary business of the petitioner-Corporation. In the appointment letters there is no indication, as already stated above, that he was appointed against a specified work. My attention has also been invited to the citation reported as State of Rajasthan and Ors. v. Rameshwar Lal Gahlot, JT 1995 (9) S.C. 621. The cited case was a case for regularisation where the workman was appointed for three months and he continued in service for over 240 days and the point for determination before the Hon'ble Supreme Court was whether such, a workman was entitled to be regularised and the answer was given in favour of the management. It was further held that where the termination of a workman was in terms of letter of appointment, such termination is saved by clause (bb) of Section 2(oo) of the Act. In the present case the notional breaks given by the petitioner-Corporation amount to an unfair labour practice, which cannot be approved or endorsed.
12. Shri P.K. Mutneja also built his argument while relying on Section 2(ka) of the Act and submitted that each project of villages Radaur, Kaul and Ladwa was an independent industrial establishment and the appointment of respondent No. 2 was by each industrial establishment and with the finishing of the work of construction of independent industrial establishment, it cannot be said that there was a retrenchment of respondent No. 2, and in support of his argument Shri Mutneja relied on Hindustan Steel Works Construction Limited etc. v. Hindustan Steel Works Construction Limited Employees' Union, Hyderabad and Anr. etc., JT 1995(2) S.C. 410, in which it was held that retrenchment of workman was on closure of a district establishment and the workmen had no right to demand absorption in other units. This authority is again not helpful to Mr. Mutneja. Here in the present case respondent No. 2 was not asking for his absorption, rather he was challenging his termination order on the plea that the management had failed to comply with the provisions of Section 25-f of the Act. Furthermore it is a fallacy in the argument of Mr. Mutneja when he submitted that each was independent project of the petitioner-Corporation at villages Ladwa, Radaur and Kaul and was an independent/industrial establishment or undertaking within the meaning of Section 2(k) of the Act. Here in the present case the major activity of the petitioner is to store foodgrains in the various warehouses/godowns. The management is one and in order to run its business the Management had constructed its godowns/warehouses at different places and engaged the labour, including respondent No. 2. In these circumstances it cannot be said that each construction work was an independent industrial establishment.
13. Learned counsel appearing for respondent No. 2 has drawn my attention for my assistance to Haryana Financial Corporation, Chandigarh v. Presiding Officer, Labour Court-cum-Industrial Tribunal, Rohtak, and Anr., (1996-2)113 P.L.R.512, and submitted that this Court will not interfere with the order of the Labour Court in the exercise of its certiorari jurisdiction unless the order of the Labour Court is found without jurisdiction in violation of rules of natural justice or where they suffer from an error of law apparent on the face of it. There is a point in the submission raised by learned counsel for respondent No. 2 because the award of the Labour Court is based on proper appreciation of evidence led by the parties and the Labour Court had correctly adjudicated in holding that the management did not comply with the provisions of Section 25-F of the Act while terminating the services of respondent No. 2. It also discriminated against respondent No. 2 by retaining his juniors into service and by saying good-bye to the provisions of Section 25-G of the Act. My attention has also been invited to Ram Karan v. Presiding Officer and Ors., 1996(3) R.S.J. 37, in which the Hon'ble Division Bench of this Court held that when the services of the petitioner-workman, who had completed more than 240 days of service, had been terminated without complying with the mandatory provisions of Section 25-F of the Act and that the persons junior to him had been retained in service, the action of the management cannot be endorsed and the workman is entitled to be reinstated into service with back wages from the date of demand notice. The Kurukshetra Central Co-Op. Bank Ltd., Kurukshetra v. State of Haryana and Ors., 1993(1) R.S.J. 763, is yet another case law which supports my reasons, holding that when the Management allows the workman to continue in service with notional breaks after the workman had put in 240 days in service in 12 months, it amounts to unfair labour practices if services of such workman were terminated by the Management.
14. Shri S.C. Kapoor, Senior Advocate, appearing for respondent No. 2, while building the case for his client under Section 25-F of the Act submitted that the management regularised the services of persons employed on work charged basis or daily wages, who were even junior to Naresh Kumar, respondent No. 2, by retaining them into service and in support of his contention he pointed out the names of those persons, who, admittedly, joined service of the petitioner-Corporation after the joining of the service of respondent No. 2 as Work Mistry. Learned counsel submitted that there is a finding of the Labour Court in that regard in para No. 10 of the award and the action of the petitioner while terminating the service of respondent No. 2 is against the provisions of Section 25-G of the Act. There is a force in this contention because the finding of the Labour Court is that the management had retained two persons by the names of Satish Deep Chand and Sultan, who were junior to respondent No. 2 and this submission of Mr. S.C. Kapoor could not be controverted successfully by the Corporation, and for this reason also the action on the part of the petitioner-Corporation has to be struck down.
15. The net conclusion is that there is no apparent illegality or error of jurisdiction in the award (Annexure P13), which is based on the proper appreciation of the evidence and does not call for any interference by this Court while exercising the powers conferred upon it under Articles 226/227 of the Constitution of India.
16. Consequently, there is no merit in this writ petition, which is hereby dismissed, leaving the parties to bear their own costs.
17. Before I part with the judgment, it may also be mentioned that during the pendency of this writ petition, the petitioner-Corporation gave an undertaking on 18th August, 1993 that in the event of its failure in the writ petition, the worker will be entitled to the interest on the amount of award at the permissible rate also, and this undertaking will remain binding on it apart from the declaration given by the Labour Court.