Gujarat High Court
Chief vs Suresh on 26 March, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
Print
SCA/665/2010 10/ 66 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 665 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.K.RATHOD
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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CHIEF
EXECUTIVE AUTHORITY - Petitioner(s)
Versus
SURESH
HARJIBHAI PATEL - Respondent(s)
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Appearance
:
MR
AMAR D MITHANI for
Petitioner(s) : 1,MR JASWANT K SHAH for Petitioner(s) : 1,
None
for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 26/03/2010
ORAL
JUDGMENT
Heard learned advocate Mr. AD Mithani on behalf of petitioner.
The petitioner authority has challenged award passed by Labour Court, Kutch at Bhuj in reference no. 68/2003 exh 19 dated 22/5/2009, wherein Labour Court has set aside termination order and granted relief of reinstatement with continuity of service with 25% back wages alongwith other consequential benefit.
Learned advocate Mr. Mithani raised contention before this Court that Labour Court has committed gross error in granting relief in favour of respondent workman. He submitted that Rahpar Area Development Authority is an 'Authority' constituted under the provision of Gujarat Town and Urban Development Act, 1976. The petitioner is statutory body constituted in Indian Statute and Officer thereof are citizen of India.
The respondent workman raised industrial disputes, which referred for adjudication before Labour Court, Bhuj mainly submitted by workman that he was working since 3/6/2001 as a Driver with petitioner and his service came to be terminated on 1/7/2003. The copy of statement of claimant is also produced on record by petitioner at page 80 Annexure B. Learned advocate Mr. Mithani submitted that considering vast destruction of human life and property in Kutch Rahpar area, due to devastating earthquake dated 26/1/2001 and for reconstruction and rehabilitation program in said back ground of Truma and devastation, Rahpar Area Development Authority was constituted by Government and notification dated 9/5/2001 published in this regard, which has been produced before Labour Court, Bhuj and also produced alongwith present petition at Annexure C. The respondent workman has produced appointment order dated 27/6/2001. The said order of appointment vide para 7, thereof specifically stated that appointment was only for term till 31/12/2001. The copy of appointment order is also annexed to present petition at Annexure D page 91.
Learned advocate Mr. Mithani relied upon a condition incorporated in appointment order which was issued in favour of respondent workman and according to him, it was an appointment on contract basis upto period 31/12/2001. Thereafter, such appointment will not be extended and it considered to be came to an end.
He submitted that in such appointment order, a condition incorporated that even prior to that period, while giving prior notice of seven days, his service can be terminated by petitioner and such condition must have to be accepted by workman. The terms and conditions incorporated in appointment order, which has been accepted by workman is also produced at Annexure E before this Court on stamp paper dated 5/7/2001 at page 95.
Learned advocate Mr. Mithani also pointed out that during contract period, workman was remained absent and he was given a notice on 1/5/2003 and 29/5/2003, both are annexed to present petition at Annexure F. Learned advocate Mr. Mithani also raised contention that on contract basis for specific time period, respondent was appointed by petitioner and on issuance of notice in reference case petitioner had appeared vide exh 10 which copy of written statement also produced along with petition at Annexure G. He submitted that in written statement a specific fact made it clear by petitioner in para 8 that appointment made by petitioner of respondent workman is for limited period on certain condition, which has been accepted by workman. Initially, it was for a period of six months, which was extended and came to an end in June 2002. Thereafter, further period was extended upto 30/6/2003 and after aforesaid period is over, his service has been automatically came to an end. Therefore, question of compliance of provision of Section 25 F by petitioner, does not arise. The workman has filed affidavit as oral evidence on 12/8/2004 and three years thereafter, respondent herein appears to have produced certain documents before Labour Court, Bhuj. The respondent workman cross examined by petitioner on 22/6/2005.
The Labour Court has not appreciated fact that respondent was appointed in fixed pay for fix period and he has accepted terms and condition on contractual appointment. Therefore, such termination is not amounts to retrenchment and covered by exception of section 2(oo)(bb) of I. D. Act, 1947.
He submitted that contract has not been renewed by petitioner. Therefore, his service came to an end automatically and no positive action has been required by petitioner. He relied upon three decision of Apex Court in case of Punjab State Electricity Board VS. Darbara Singh reported in 2006 LLR 68 (SC), in case of Punjab State Electricity Board and Anr reported in 2007 LLR 414 (SC), in case of Kishore Chandra Samal Vs. Divisional Manager, Orissa State Cashew Development Corporation Ltd, Dhenkanal reported in 2006 AIR SCW 3589.
In short his submission is that Labour Court has committed gross error in deciding or adjudicating reference. He also relied upon cross examination of respondent workman. He relied upon evidence of Rajeshbhai Shrimali, who is an Officer of petitioner, page 104 Annexure I. The said officer was cross examined by advocate of workman, which is at page 107 dated 17/4/2006.
He also submitted that before Labour Court, written arguments have been placed on record by petitioner, which has not been properly considered by Labour Court. Therefore, learned advocate Mr. Mithani has relied upon another decision of Apex Court reported in M. D. Karnataka Handloom Dev. Corpn. Ltd Vs. Mahadeva Laxman Raval reported in AIR 2007 SC 631 and submitted that Labour Court has committed gross error in deciding reference, which has been referred for adjudication while granting reinstatement in favour of workman with continuity of service with 25% back wages of interim period. Except that no other decision is relied and no other submission is made by learned advocate Mr. Mithani.
I have considered submission made by learned advocate Mr. Mithani and I have also perused award passed by Labour Court. The facts almost are not in dispute. The workman was serving as driver with petitioner w.e.f. 3/6/2001 in fixed salary of Rs. 3050/- per month. He was remained in service upto 1/7/2003. His service period was from 3/6/2001 to 1/7/2003. He has completed 240 days continuous service as required under section 25(B) of I. D. Act, 1947 and undisputedly section 25 F has not been followed by petitioner. Therefore, Labour Court has granted reinstatement in favour of workman.
According to workman before Labour Court such appointment is made on contract basis but with a view to deprive employee of his continuous service with bad intention that employee do not become permanent employee of petitioner authority. The employee was shown as contract basis only on record. The drivers, those who are serving and appointed subsequent to respondent, they were remained continue in service and one junior workman namely B. D. Gusai is taken on the post of respondnent employee after his retrenchment, who is still working with opponent. No seniority list was published by petitioner at the time of terminating service of concern respondent and it is a malafide termination and colourable exercise of power giving such kind of appointment to deny concern workman's benefit of Section 25 F of I. D. Act, 1947. The written statement filed by petitioner exh 10, where averment made in statement of claim has been denied and specific contention was raised by petitioner that it was a contractual appointment for specific period, which was extended time to time and ultimately his service was terminated on 30/6/2003. Therefore, respondent workman is not entitled any relief. The workman was examined himself at exh 7 and petitioner has produced certain documents which are on record as referred in para 7 of award.
Thereafter, Labour Court has considered submission made by both learned advocates in support of their case. In para 10 of award, issues have been framed by Labour Court and finding is given in para 12. The question has been examined by Labour Court whether workman has completed 240 days continuous service or not? The Labour Court has considered that workman was working with petitioner as driver for more than two years on vacant post. He was paid salary of Rs. 3050/- per month. The respondent is workman within a meaning of section 2(S) of I. D. Act, 1947 and he has completed more than 240 days continuous service prior to his termination. The Labour Court has considered cross examination of workman by advocate of petitioner. In cross examination say of employee has remained in tact that his post was permanent but he was retrenched from service on 30/6/2003 without any notice and he was not absent in service. No rebuttal evidence is produced by petitioner in this respect. The employee means present respondent has produced his experience certificate exh 6/7 showing that employee has worked to satisfaction of present petitioner with honesty and integrity w.e.f. 3/6/2001 to 30/6/2003 as driver. This certificate has been considered by Labour Court being specific and satisfactorily evidence produced by workman and he had remained in service more than two years period and completed 240 days continuous service in each calendar year. The evidence of witness Shri Rajeshbhai Dashrathbhai Shrimani exh 15 has been considered by Labour Court in para 16 which is quoted as under:
16. It has also come out that he was serving on the permanent post and the said post is still continued. It has also come out that the new person was appointed by giving advertisement in the newspaper and the cutting of the newspaper is produced at Exh. 6/12 and no chance was given to the employee even though he has applied for the said post of driver. It has also come out that he has requested the opponents to reinstate him on his original post but he was not taken and new persons were taken and the said new persons are still continued in service and they are doing the same work which the employee was doing before his retrenchment. It has also come out that in every calender year he has completed more than 240 days work. The say of the employee on oath, is not rebutted by the opponent by producing any documentary evidence but the opponent has examined Shri Rajeshbai Dashrathbhai Shrimali at Ex. 15 who deposed that the formation of Rahpar Area Development Authority was made for temporary period for the purpose of town planing of Rahpar Area because the Rahpar Area was devastated in devastating earthquake that had occurred in Kachchh District. The witness has also deposed that the appointment of employee was made on contract basis on the temporary establishment as driver and he was relieved after completion of contract. The witness has also deposed that at the initial stage the employee was appointed for a fixed period of 06 months but thereafter from time to time extension was given and lastly he was relieved on 31/6/2003. The witness has entered into a contract to that effect. The witness was cross examined by the learned advocate Shri S. D. Rathod for the employee and during cross examination the witness has admitted that the employee has worked for continuously from the date of his appointment upto his retrenchment. He has also admitted that the employee has worked for more than 240 days in each and every year. The witness has also admitted that no departmental enquiry was held against the employee.
He has also admitted that no retrenchment compensation was given to the employee and no notice pay was given to him. Thus, from the evidence of the witness of opponent particularly from the cross examination by the learned advocate Shri S. D. Rathod for the employee, it has come out that the employee has worked continuously from the date of his appointment upto his retrenchment. It has also come out that the employee has worked for more than 240 days in each and every calender year. If any decision is required then it is of our own Hon'ble High Court reported in 2006 GLR PAGE 695 in the case of State of Gujarat Vs. Karsanbhai Jesang (Coram: Hon'ble Mr. Justice H. K. Rathod, J). In that case the Hon'ble High Court has held that the onus to prove that workman had completed 240 days continuous service, initially, is on the workman but when the workman establishes that fact by oral evidence, the burden shifts on the employer. In that case the employer had not produced entire documents regarding the continuous service of the employee and the opponents employer has not examined any witness in support of their case that the employee has not completed 240 days continuous service with the opponents. In the present case there is sufficient evidence to show that the employee has completed two years continuous service preceding to his retrenchment so this Court has no hesitation in holding that the employee has worked with the opponent for more than 240 days continuous service.
In view of above para where evidence of witness of petitioner has been discussed and according to evidence of witness of petitioner, it is come out fact that new person was appointed by giving advertisement in newspaper and cutting of newspaper produced exh 6/12. At that time, no chance was given to employee even though he has applied for said post of driver. It is also coming from evidence of witness of petitioner that said new persons are still continued in service and they are doing same work, which was done by workman prior to retrenchment. The say of employee is that he has completed more than 240 days continuous service against which, no rebuttal evidence produced by present petitioner while producing any documentary evidence on record. In light of this evidence, which are on record as discussed by Labour Court and relevant conclusion on the basis of oral and documentary evidence, Labour Court has discussed it in para 20 which is quoted as under:
20. In the present case when the employee has put in continuous service for more than 02 years, then it is immaterial whether he has worked for a particular period say for 240 days. When such is the situation, this Court holds that the employee was workman of the opponents before his retrenchment from service and that he has completed more than 240 days service in each and every year upto his illegal retrenchment from service. Therefore, the Point No. 1 is answered in affirmative.
It is necessary to note being an important aspect of matter that though contention was raised by petitioner before Labour Court, it was a periodical appointment given to workman for fixed period and it was extended for further period and his service was came to an end on 30/6/2003, but there is no specific defence has been raised by petitioner that such termination is not an amounts to retrenchment within a meaning of section 2(oo) of I. D. Act, 1947, because workman is covered by exception u/s 2(oo)(bb) of I. D. Act, 1947. This specific contention was not raised by petitioner before Labour Court even in written statement filed by petitioner before Labour and even in written argument filed by petitioner before Labour Court, no such contention raised that case is covered by exception of section 2(oo)(bb) of I. D. Act, 1947. Therefore, Labour Court has rightly not examined this question at all because it was not raised by petitioner before Labour Court. Merely giving periodical appointment, does not amounts to consider to cover case of workman u/s 2(oo)(bb) of I. D. Act, 1947 but fact is required to be proved by petitioner by leading proper evidence on record. Though on behalf of petitioner one R. D. Shrimani was examined vide exh 15, even in his evidence also, no such defence has been taken by petitioner that respondent workman was appointed on periodical basis on project and his case was covered by section 2(oo)(bb) of I. D. Act, 1947. So, petitioner authority remained totally silent about defence that case of workman is covered by exception of section 2(oo)(bb) of I. D. Act, 1947. Therefore, Labour Court has rightly not examined such issue because it was not raised before Labour Court and before this Court first time such contention has been raised in memo of petition, naturally, such new plea raised before this Court can not be accepted by this Court.
The Labour Court while discussing oral and documentary evidence which are on record in examining question whether termination is legal or not? The following observations made in para 22 are quoted as under:
22. Mr. B. M. Dholakia, the learned advocate appearing for the opponent, in support of his arguments, has relied on the decision of Hon'ble Supreme Court reported in AIR 2007 SUPREME COURT, 288. On going through the said decision, it appears to this Court that the facts of the decision relied on by Mr. Dholakia are not similar to the facts of the present case. In that case the defence of the employer was that he is not bound to take service of the respondent in subsequent seasons. In the present case that is not the defence of the opponent. The case of the opponent is that there were three posts of the drivers and two posts of drivers are withdrawn by the Government so there is only one post of driver so the employee can not be reinstated on his original post. It is also the defence of the opponent that the establishment of the opponent is created for temporary period and that too upto town planing of the earthquake area of Rahpar and as the post of employee was for temporary period, he can not be taken again in service. As against this, the learned advocate Shri S. D. Rathod has drawn the attention of this Court to the letter No. UDA 102007 2701 V dated 03/05/2008 written by the Section Officer of the Urban Development and Urban Housing Department, Government of Gujarat, Sachivalaya, Gandhingar to the Rahpar Area Development Authority in which permission was given to regularize the employees appointed on contract basis vide Govt.
Notification No. PRCH 102002 2530 V dated 1/6/2002. Mr. Rathod has also drawn attention to the Finance Department Government notification dated 16/2/2006 under which at the initial state the employees of Class III and Class IV were to be appointed on fixed pay basis for a period of five years and after completion of five years they were to be regularized in regular establishment on regular post, with regular pay. Now on going through the Government Notification No. 102001/2067/V dated 2nd May, 2001 pertaining to Rahpar Area Development Authority, and then it appears that certain posts were created including one post of Driver in the pay scale of Rs. 3050-4590. In this notification it is not mentioned that the said posts were created for certain period or were created for temporary period and subsequently vide above referred letter dated 03/05/2008, the employees appointed on the said posts were to be regularized who were appointed as per Recruitment Rules through the Recruitment Committee. Now, on going through the appointment order of the employee produced at Exh. 13/3 it appears that he was appointed vide order dated 27/6/2001 as driver under certain conditions mentioned in the order on fixed pay upto 31/12/2001. Thereafter vide order dated 02/03/2002 the service of the employee was extended for a further period of decision relied on by Mr. B. M. Dholakia, the learned advocate for the opponent is not applicable to the facts of the present case. In the present case the employee has sufficiently proved that his post was regular post and it was not a post for temporary period. The work of the employee was also satisfactory therefore, there was no reason for the opponent to retrench the employee and to make appointment of new persons or junior to the employee. Thus, it is sufficiently proved that the employee was illegally retrenched by the employer and that to without giving any notice or notice pay. The employee has also sufficiently proved that he was not given any retrenchment compensation before retrenching him from service.
The Labour Court has also considered that appointment which was made in favour of workman is in temporary establishment or permanent and on that basis Labour Court has come to conclusion that it was an appointment on permanent vacant post on regular establishment as a driver, which was extended time to time and after his termination post was remained continue. On that post, another person i.e. junior employee was posted to work on said post. Therefore, according to Labour Court it is not really contractual appointment as alleged by petitioner but it was an appointment on regular vacant post for a period of six months. Thereafter, it was extended time to time and when service of workman was terminated on 30/6/2003, even though, post in which workman was working remained continue, on his post junior workman was appointed. Thereafter, advertisement was issued for filled up same post, at that occasion, application was made by workman but his case was not considered for appointment by petitioner. Therefore, such finding given by Labour Court in para 23 after considering oral submission made by advocate of petitioner is quoted as under:
23. The learned advocate Shri B. M. Dholakia has also relied on the decision of Hon'ble Supreme Court of Indian reported in AIR 2007 SUPREME COURT, 631. In the said case the respondent was engaged on contract basis and was assigned to train weavers own time specific short term scheme sponsored by the State. In the said case the employee was not a 'worker'. Soon after expiry of specific period respondent's service was discontinued. It was held that it was not a retrenchment as defined under section 2(oo) of I. D. Act and the compliance with Section 25-F was not necessary. So far as present case is concerned, the employee was not appointed for specific short term scheme sponsored by the State but the employee was appointed under regular establishment as driver and was given appointment for six months and from time to time his service was extended but his post was continued even after his retrenchment and another person, junior to the employee, was posted to work on the said post and thereafter appointment was also made after giving advertisement in the newspaper. The Government notifications also show that the employees so appointed on contract basis were to be regularized after completion of five years of service and the RADA given appointment to other employees. Reference can be made to the order dated 27/2/2008 in which one Shri Manojkumar Maganbhai Prajapati, Accounts Clerk, who was working with effect from 14/6/2002 was regularized on the regular post after completion of 05 years service in RADA. Thus, when the post of the employee was regular there was no need for the employer to relieve him and to appoint other person.
As shown by the certificate given to the employee produced at Exh. 6/7, issued by RADA, the service of the employee was satisfactory and he has worked with honesty from the date of his appointment upto his retrenchment. In such circumstances the employer should have given extension to the employee. Not only this, but before retrenching the employee the employer has also not given notice or notice pay and no retrenchment compensation was given to the employee. Thus, the employer has violated the mandatory provisions of Section 25 F. Therefore, the case law relied by Mr. Dholakia is not applicable to the facts of present case.
In above referred para, Labour Court has in terms come to conclusion that post in which workman was appointed was regular post found vacant and on that post, he was appointed on periodical basis and there is no justification to terminate service of workman established by petitioner because immediately on the same post another junior driver was appointed on same terms and condition. Thereafter, post was advertised and another person was recruited by petitioner. The Labour Court has rightly come to conclusion that termination of concern workman is not justified by petitioner before Labour Court. Even in case of periodical appointment, if post is remained vacant on regular establishment and just to deny benefits of section 25 (F), such kind of appointment are made by public authority can not consider to be a contractual appointment. In fact, it was regular appointment made by petitioner on post of driver of concern workman it was extended time to time and post was remained continue. It was not temporary post created by petitioner for any project/or specific work but it was regular post on regular establishment found to be vacant in which workman was appointed. The Labour Court has rightly come to conclusion that there is no need to terminate service of workman because another person was appointed immediately, who was junior to present respondent workman. Therefore, there is no justification established by petitioner for terminating service of respondent workman. The Labour Court has come to conclusion on the basis of evidence of workman as well as evidence of witness of petitioner exh 15 that after termination of concern respondent workman junior workmen were remained continue in service. Therefore, section 25 G has been violated by petitioner.
After termination of service of workman new person found appointed as per evidence of workman, against which, no rebuttal evidence produced by petitioner. Therefore, section 25 H is also violated by petitioner. No seniority list has been published by petitioner before terminating service of concern workman as per Rule 81 of Industrial Dispute Gujarat Rules 1966. Therefore, Labour Court has come to conclusion that termination of workman is contrary to mandatory provision of section 25 F, G and H of I. D. Act, 1947.
Thereafter, Labour Court has considered that there is no justification or reason given by petitioner before Labour Court that why service of concern workman is not extended and terminated. So in absence of justification of retrenchment, Labour Court has rightly granted relief in favour of workman with 25% back wages of interim period. The finding given by Labour Court that it was a regular vacancy available in which workman was appointed as driver, which appointment is shown to be periodical or contractual which was extended upto 30/6/2003 and on the date of termination post was found to be vacant and available in which junior employees has been appointed in the post of driver. Therefore, Labour Court has granted relief in favour of respondent workman for that, Labour Court has not committed any error which would require interference by this Court.
Learned advocate Mr. Mithani relied upon decision in case of Punjab State Electricity Board Vs. Darbara Singh reported in 2006 LLR 68. Learned advocate Mr. Mithani relied upon this decision only on the ground that such periodical appointment is covered by exception of section 2(oo)(bb) of I. D. Act and such termination can not consider to be retrenchment. Therefore, section 25 F is not required to be complied with. This judgment is not helpful to learned advocate Mr. Mithani because facts are otherwise. In facts of present, post in which respondent workman was appointed it was a regular vacancy of driver post which has been merely giving appointment on periodical basis. So it was not contractual appointment on temporary post but it was an appointment on periodical basis against regular vacant post of driver. Therefore, this decision is not applicable to facts of present case.
He relied upon another decision in case of Punjab State Electricity Board & Anr Vs. Sudesh Kumar Puri reported in 2007 LLR 414, where workman was engaged under agreement for specific period and appointment was made at fixed rate for work done on disengagement of workman on termination on contract section 2(oo)(bb) of I. D. Act is applicable. Looking to facts of present case, workman was not appointed on fixed rate for work done but he was appointed against regular vacancy of driver merely giving periodical order without any justification that can not consider to be covered by exception under section 2(oo)(bb) of I. D. Act, 1947.
He relied upon another decision of Apex Court in case of M. D., Karnataka Handloom Dev. Corpn. Ltd Vs. Mahadeva Laxman Raval reported in AIR 2007 SC 631, where Apex Court has considered fact that respondent engaged on contract basis as assigned to train weavers on time specific short term scheme sponsored by State Handloom Dev. Corpn., paid stipend, is not a 'worker'. Soon after expiry of specific period respondent's service was discontinued. It is not retrenchment, as defined under section 2(oo) of the I. D. Act. The aforesaid decision is also not applicable to facts of this case. However, decision which has been relied by learned advocate Mr. Mithani mainly to establish his defence that case of respondent workman covered by exception of section 2(oo)(bb) of I. D. Act, but this specific contention was not raised before Labour Court that case of termination of workman covered by exception u/s 2(oo)(bb) of I. D. Act, 1947. However, Labour Court has impliedly dealt with this contention on the ground that post has been created by petitioner authority on regular basis and against that post, workman was appointed as driver which period has been subsequently extended by petitioner authority. Thereafter, on 30/6/2003 service of workman was terminated means not extended and though it was not an appointment of workman for short term basis or in project or under scheme which required to be made periodical appointment. After terminating service of workman post of driver remained continue in which another person was appointed. Therefore, petitioner authority has not justified such termination of workman which has been found to be contrary to section 25 F G and H of I. D. Act, 1947. (See: in case of Management, Malaysian Airlines, Chennai Vs. Presiding Officer, Principal Labour Court, Chennai and Another reported in 2007 (5) MLJ 1300) In light of this factual back ground, decision which has been relied by learned advocate Mr. Mithani is not helpful to him in support of his submission.
The Apex Court has considered case of Haryana State Electronics Development Corporation Ltd Vs. Mamni reported in 2006 AIR SCW 2979, where such kind of periodical appointment with break of one or two days in between is considered not bonafide and practice adopted by employer to defeat object of I. D. Act, 1947 and in such termination section 2(oo)(bb) would not be attracted. The relevant discussion made in para 9, 10 and 11 are quoted as under:
9. The respondent was appointed from time to time. Her services used to be terminated on the expiry of 89 days on regular basis. However, it is noticed that she used to be appointed after a gap of one or two days upon completion of each term. Such an action on the part of the Appellant can not be said to be bona fide. The High Court rejected the contention raised on behalf of the appellant herein stating:
....It is not possible for us to accept the aforesaid plea arised at the hands of the management on account of the fact that the factual position, which has not been disputed, reveals that the respondent workman was repeatedly engaged on 89 days basis. It is, therefore, clear that the intention of the management was not to engage the respondent workman for a specified period, as alleged, but was to defeat the rights available to him under section 25 F of the Act. The aforesaid practice at the hands of the petitioner management to employ the workman repeatedly after a notional break, clearly falls within the ambit and scope of unfair labour practice...
10. A finding of fact was arrived at that her services were terminated on regular basis but she was re appointed after a gap of one or two days. In that view of the matter, the Labour Court or the High Court can not be said to have committed any illegality.
11. In this case the services of the respondent had been terminated on a regular basis and she had been re appointed after a gap of one or two days. Such a course of action was adopted by the Appellant with a view to defeat the object of the Act. Section 2(oo)(bb) of the Industrial Disputes Act, 1947, therefore, is not attracted in the instance case.
The similar aspect has been considered by this Court in case of State of Gujarat Vs. Dipak Kumar Madhusudanbhai Gandhi reported in 2008 (2) GLH 132. The relevant para observation made in para 8, 9 and 10 are quoted as under:
8. The Apex Court has taken the view in the case of S.M.Nilajkar and Others v. Telecom District Manager, Karnataka reported in 2003-II-LLJ-359. Relevant observation are in 11, 12, 13 and 14 which are quoted as under :
"11. It is common knowledge that the Government as a welfare State floats several schemes and projects generating employment opportunities, though they are short lived. The objective is to meet the need of the moment. The benefit of such schemes and projects is that for the duration they exist, they provide employment and livelihood to such persons as would not have been able to secure the same but for such schemes or projects. If the workmen employed for fulfilling the need of such passing-phase-projects or schemes were to become a liability on the employer State by too liberally interpreting the labour laws in favour of the workmen, then the same may well act as a disincentive to the State for floating such schemes and the State may opt to keep away from initiating such schemes and projects even in times of dire need, because it may feel that by opening the gates of welfare it would be letting in onerous obligations entailed upon it by extended application of the labour laws. Sub-clause (bb) in the definition of retrenchment was introduced to take care of such like situations by Industrial Disputes (Amendment) Act, 1984 with effect from 18-8-1984.
12. "Retrenchment"
in its ordinary connotation is discharge of labour as surplus though the business or work itself is continued. It is well settled by a catena of decisions that labour laws being beneficial pieces of legislation are to be interpreted in favour of the beneficiaries in case of doubt or where it is possible to take two views of a provision. It is also well settled that the Parliament has employed the expression "the termination by the employer of the service of a workman for any reason whatsoever" while defining the term "retrenchment", which is suggestive of the legislative intent to assign the term 'retrenchment' a meaning wider than what it is understood to have in common parlance. There are four exceptions carved out of the artificially extended meaning of the term 'retrenchment', and therefore, termination of service of a workman so long as it is attributable to the act of the employer would fall within the meaning of 'retrenchment' dehors the reason for termination. To be excepted from within the meaning of 'retrenchment' the termination of service must fall within one of the four excepted categories. A termination of service which does not fall within the categories (a), (b), (bb) and (c) would fall within the meaning of 'retrenchment'.
13. The termination of service of a workman engaged in a scheme or project may not amount to retrenchment within the meaning of sub-clause (bb) subject to the following conditions being satisfied:-
(i) that the workman was employed in a project or scheme of temporary duration;
(ii) the employment was on a contract, and not as a daily wager simpliciter, which provided inter alia that the employment shall come to an end on the expiry of the scheme or project ; and
(iii) the employment came to an end simultaneously with the termination of the scheme or project and consistently with the terms of the contract.
(iv) the workman ought to have been apprised or made aware of the abovesaid terms by the employer at the commencement of employment.
The engagement of a workman as a daily wager does not by itself amount to putting the workman on notice that he was being engaged in a scheme or project which was to last only for a particular length of time or upto to the occurrence of some event, and therefore, the workman ought to know that his employment was short lived. The contract of employment consciously entered into by the workman with the employer would result in a notice to the workman on the date of the commencement of the employment itself that his employment was short lived and as per the terms of the contract the same was liable to termination on the expiry of the contract and the scheme or project coming to an end. The workman may not therefore, complain that by the act of employer his employment was coming to an abrupt termination. To exclude the termination of a scheme or project employee from the definition of retrenchment it is for the employer to prove the abovesaid ingredients so as to attract the applicability of sub clause (bb) abovesaid. In the case at hand, the respondent-employer has failed in alleging and proving the ingredients of sub-clause (bb), as stated hereinabove. All that has been proved is that the appellants were engaged as casual workers or daily wagers in a project. For want of proof attracting applicability of sub-clause (bb), it has to be held that the termination of the services of the appellants amounted to retrenchment."
9. The Patna High Court has taken the view in the case of Bennett Coleman and Co. Ltd. v. Presiding Officer, Labour Court, Patna and Others reported in 2003-III-LLJ-981. Relevant observation are in 16, 17, 19 and 29 which are quoted as under :
"16. This takes us to the moot question as to whether the termination amounted to retrenchment within the meaning of Section 2(oo) of the I.D.Act. The protection under Section 25F of the Act is against retrenchment and therefore, the workman is required to prove that his dismissal etc. amounted to retrenchment. The argument of the counsel for the management is that as the respondent held a tenure employment her case would fall under exception (bb) appended to Section 2(oo) and therefore, the termination of her service did not amount to retrenchment. In order to appreciate this submission the definition of 'retrenchment' under Section 2(oo) may be noticed as under:
"(a) .........
(b) .........
(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) ......."
According to learned counsel for the management, the latter part of clause (vv) i.e. "contract being terminated under a stipulation" covers the case of the respondents. I do not find any merits in this submission. The first part of clause (bb) governs cases where the termination results from non-renewal of the contract such as where appointment is for a particular tenure and on expiry whereof his appointment comes to an end. The latter part of the clause refers to a situation where the contract is terminated on the happening of certain events in accordance with the stipulation as indicated in the appointment order i.e. contract of service.
17. In the instant case, as seen above, the services were terminated on the ground of performance not being found satisfactory during her training period. The termination being on the ground of unsatisfactory performance cannot be said to be "under a stipulation" contained in the appointment order. The appointment order simply stipulated that the appointment was termination at any time without notice and without assigning any reason and, further, the appointment would stand terminated on expiry of six months from the date of joining. As the appointment was not terminated after expiry of the six months' period from the date of joining, clearly, that pat of the appointment order was not attracted. So far as the other part is concerned, if I may say so, the stipulation was general; it merely incorporated what is implicit in every case of temporary appointment. Every case of temporary appointment is terminable at any time without notice and if such termination were to come within the ambit of second part of clause (bb) it would mean that all such cases of termination would be covered by the exception and stand out of pale of retrenchment. Such interpretation would not be in the interest of labour for whose benefit the I.D.Act has been enacted. Every retrenchment has an element of termination and vice versa, unless it is by way of punishment in a departmental proceeding or is covered by any of the exceptions. I accordingly hold that termination of the respondent's service amounted to retrenchment within the meaning of Section 2(oo) of the I.D.Act.
19. On a plain reading of the section it would appear that any workman who has been in continuous service for not less than one year under an employer cannot be retrenched without one month's notice in writing, indicating reasons for retrenchment or wages in lieu of such notice and, further, without retrenchment compensation equivalent to fifteen days' pay for every completed year of service or any part thereof in excess of six months, and lastly, without serving notice in the prescribed manner on the appropriate Government. Law is well-settled on the point that for valid retrenchment it is necessary that all the three conditions precedent must be satisfied failing which the retrenchment becomes void ab initio.
29. The question which then arises for consideration is whether the award of the Labour Court directing reinstatement without full back wages and other service benefits is correct. In Surendra Kumar Verma and others v. Central Government Industrial Tribunal-cum- Labour Court, New Delhi and another, AIR 1981 SC 422 : 1980 (4) SCC 443 :
1981-I-LLJ-386, the Court observed that removal of an order terminating the services of workmen must ordinarily lead to the reinstatement of the services of the workmen. It is as if the order has never been and so it must ordinarily lead to back wages too. But there may be exceptional circumstances which make it impossible or wholly inequitable vis-a-vis the employer and workmen to direct reinstatement with full back wages. For instance, the industry might have closed down or might be in severe financial doldrums; the workmen concerned might have secured better or other employment elsewhere and so on. In such situations, there is a vestige of discretion left in the Court to make appropriate consequential orders. The Court may deny the relief of reinstatement where reinstatement is impossible because the industry has closed own. The Court may deny the relief of award of full back wages where that would place an impossible burden on the employer. In such and other exceptional cases the Court may mold the relief but, ordinarily the relief to be awarded must be reinstatement with full back wages."
10. Recently, this Court has considered identical issue in case of Gujarat Agro Industries Corporation Limited v. Pravinsinh Babubhai Chauhan reported in 2008 (1) GCD 346. Relevant observations are made in Para.9 to 13, which are quoted as under :
9. Findings given by the labour court are based on legal evidence and labour court has given cogent reasons in support of its conclusions.
Looking to the appointment order, why such type of appointment orders were issued periodically and on temporary basis, for that, there is no justification coming forward from the side of the petitioner. If the requirement is continuing from the date of appointment till the date of termination, then, why management is issuing such orders on periodical basis, on temporary basis. Reason is apparent that this is done only with a view to get rid of the mandatory provisions of section 25F of the ID Act, 1947 and to deprive the workman from claiming protection of the said mandatory provisions. Such type of efforts on the part of the petitioner are arbitrary and same amounts to unfair labour practice adopted by the petitioner. Looking to all the orders of appointment periodically given to the petitoner from time to time on temporary basis, there is no reason or justification given by the petitioner for issuance of such orders. Last order is dated 15th July, 1994. Why service period was extended and for that, no appointment order has been issued which suggests periodical or temporary. Looking to the last order dated 15th July, 1994, services of the respondent workman came to an end on 20th July, 1994. For that, periodical order was not given to the respondent by the petitioner. This being an undisputed position, upto 30th September, 1993, periodical appointment orders were there but beyond that from 1st October, 1993 to 20th July, 1994, no such periodical appointment orders have been given by the petitioner to the respondent and, therefore, considering the entire period of services including the order dated 15.7.1994, services of the respondent workman were terminated by the petitioner without complying with the provisions of section 25F of the ID Act, 1947. In light of this situation, whether the provisions of section 2(oo) (bb) of the ID Act, 1947 would be applicable or not. Considering the submission of Ms. Desai that such contention was not raised by petitioner before the labour court which is not disputed by learned Advocate Mr. Nanavati for petitioner, therefore, since the labour court was not given an opportunity to examine this contention and to give finding thereon, this court cannot permit the petitioner to raise such contention for the first time before this court as it is a mixed question of law and facts required to be pleaded and proved by the petitioner before the labour court. However, without entering into that aspect, this court has examined the contention. Looking to the facts of this case as emerging from the record, section 2(oo) (bb) of the ID Act, 1947 would not be applicable in this case because there is no fixed term order of appointment issued by the petitioner in favour of the respondent. There is some purpose behind bringing this provisions in the Statute with effect from 18.8.1984. In Executive Engineer, District Panchayat, Bharuch versus Shankarbhai Jivabhai Patel reported in 2006 Lab IC page 2180, this aspect has been considered by this court in detail. Relevant observations made by the Madras High Court in case of Manager (P&A) Oil and Natural Gas Corporation Ltd. Chennai v. G. Radhakrishnan (200) Lab IC 2570 have also been considered by this court in the said decision by referring to para 22 of the said decision. Scope of sec.2(oo) (bb) has been considered and it has also been considered how the employer is abusing such provision unscrupulously while employing the workman and in such circumstances, court should see the real position so as to rule out the injustice to workman. Decision of the Division Bench of Madras High Court has been considered by this court in the above referred decision of this court in case of Executive Engineer, District Panchayat, Bharuch versus Shankarbhai Jivabhai Patel reported in 2006 Lab IC page 2180. Therefore, relevant observations made by this court in case of Executive Engineer, District Panchayat,Bharuch (supra) in para 8,9,10,and 11 are reproduced as under:
8. Relying upon the decision of Apex Court in General Manager, Haryana Roadways (supra) it is submitted that in case termination is found to be bad or illegal, workman is not entitled automatically for full backwages or any wages, but before granting wages, certain relevant factors are to be taken into account by the Labour Court about the length of service, age, family circumstances and condition of establishment. He submitted that as per the decisions of Apex Court, periodical appointments are outside the scope of Section 2(oo) of the Act, means, it is not retrenchment. However, the facts in each case are different in comparison to the facts of the present case. Recently, the Division Bench of Madras High Court in The Manager (P&A), Oil and Natural Gas Corporation Ltd., Chennai v. G.Radhakrishnan (2005 Lab.I.C. 2570) has considered the scope of Section 2(oo)(bb) and also considered that how unscrupulous employer abuse such provision while employing the workmen, and that in such circumstances, the court should see the real position so as to rule out injustice to the workmen. The Division Bench of Madras High Court in above decision considered certain decisions of Apex Court and various High Courts and thereafter held in paragraph-22 that:
22. The above referred to decisions on interpretation of Section 2(oo)(bb) explain the legal position to the effect that a claim of an employer on a term based employee providing for automatic termination whether within the terms fixed or on expiry of the said term, cannot be taken for granted to sustain the order of termination. On a plain reading of Section 2(oo)(bb), it is quite clear that such term based employment would fall outside the scope of `retrenchment' so long as the requirement of such fixed period of employment was bona fide required by the employer. It was therefore, repeatedly pointed out that such excepted categories required a rigorous test rather than accepting the plea of employer on its face value or otherwise it would cause serious prejudice to an employee, who can be taken for a ride by unscrupulous employers by contending that the term of employment was for specific period though as a matter of fact such period of employment lasted quite for a long spell. In other words even though the requirement of employment was perennial by adopting the methodology of employing a person for a specific period as many a times, an unscrupulous employer can always resort to abusing the provision contained in Section 2(oo)(bb) to thwart the other statutory protection available to an employee under Section 2(oo), namely, in the case of a `retrenchment' vis-a-vis the consequential benefits contained under Section 25-F of the Industrial Disputes Act. Therefore, when such extraordinary circumstances are brought out in the matter of employment and termination is resorted to by taking umbrage under Section 2(oo)(bb) of the Industrial Disputes Act, in the interest of justice, we are of the view that a close scrutiny of the real position will have to be necessarily made to rule out the possibility of any injustice being caused to an employee. It cannot be lost sight of that Section 2(oo)(bb) is specifically meant to cover only such employment which would be needed for an employer for a specific period alone and beyond which the requirement will not be there and even on such occasions, the employer should not be put into an unnecessary predicament of facing the other consequences that would normally occur while resorting to retrenchment. The benefit of the said exception will have to be strictly restricted to such specific situations alone and the same cannot be allowed to be misused or abused by the employers even in regard to cases where the nature and requirement of employment is perennial.
See :
(1) S.M.Nilajkar v. Telecom District Manager, Karnataka, 2003 Lab IC 2273 : AIR 2003 SC 3553 : 2003 AIR SCW 2196 : 2003 AIR Kant HCR 1193.(2)
Dpty. Director of Health Services, Nashik v. Latabai Rajdhar Paturkar, 1996 Lab IC 428 : (1996)3 Lab LN 675 (Bom) (3) Madhya Pradesh Bank Karmachari Sangh (MP) v. Syndicate Bank 1996 Lab IC 1161 (MP) (4) Alexander Yesudas Maikel v. Perfect Oil Seals and IRP, 1995(1) Lab LN 1165 :
1995 Lab LR 777 (Bom) (5) M.Venugopal v. LIC of India, AP AIR 1994 SC 1343 : 1994 AIR SCW 778 : 1994(1) Lab LJ 597 (6) Chairman-cum-Managing Director, Orissa Road Transport Co. Ltd. v.
Ramesh Chandra Gouda, 1994 Lab IC (NOC) 387 : 1994(2) Lab LJ 1127 (Orissa) (7) Chakradhar Tripathy v. State of Orissa 1992 Lab IC 1813 (Orissa) (8) Shailendra Nath Shukla v. Vice-Chancellar, Allahabad University, 1987 Lab IC 1607.
9. Termination of service of casual workmen on daily wages will not fall within the exception contained in sub-clause (bb) of S.2(oo) of the Act, because the contract of employment is referable to the contract other than engagement of casual workers on daily wages. `Non-renewal of the contract of employment' presupposes an existing contract of employment which is not renewed. Even in respect of a daily-wager a contract of employment may exist, such contract being from day to day. The position however, would be different when such a contract is in reality camouflage for a more sustaining nature of arrangement, but the mode of daily-wager is adopted so as to avoid the rigors of the Act. This clause does not contemplate to cover a contract such as of a daily-wager and is rather intended to cover more general class of contracts where a regular contract of employment is entered into and the termination of the service is because of non-renewal of the contract. This interpretation of sub-clause (bb) is in consonance with the substantive provision of clause (oo) of S.2 defining `retrenchment' as termination of service of a workman for any reason whatsoever (See: Chairman-cum-Managing Director Orissa Road Transport Co. Ltd. v. Ramesh Chandra Gouda, [1994] II LLJ 1127 (1128-29) (Ori.) (D.B.), per Rath, J.). Likewise termination of service of a `badli' workman in terms of the contract of employment will not be retrenchment in view of this provision. (Shankariah v. K.S.R.T.C., [1986] I LLJ 195 (196) (Kant.), per Rama Jois, J.)
10. In S. Gobindaraju v. K.S.R.T.C. ([1986] II LLJ 351 (SC), per K.N.Singh, J. the case was decided on another short point viz., the workman was entitled to succeed as the termination order was violative of the principles of natural justice, the Supreme Court did not consider it necessary to decide the point that if the termination of service of a workman by non-renewal of the term of contract of employment or under a stipulation contained in the contract of employment in that behalf will not amount to `retrenchment' in view of the provisions of sub-clause 2(bb), it would enable unscrupulous employers always to provide a fixed term or stipulation in the contract of service for terminating the employment of employees to escape the rigor of S.25F or S.25N of the Act. And it would further confer arbitrary powers on the employer which would be destructive of the protection guaranteed by the Act to the employees. But various High Courts, using interpretative techniques have mellowed down the rigor of the bare reading of the statute. In Shailendra Nath Shukla v. Vice Chancellor, Allahabad University ([1987] Lab.I.C. 1607 (All.) (D.B.), per Sahai, J.; Chairman-cum-Managing Director Orissa Road Transport Co. Ltd. v. Ramesh Chandra Gouda, [1994] II LLJ 1127 (1128-29) (Ori.) (D.B.), per Rath, J.; Jaybharat Printers & Publishers Pvt. Ltd. v. Labour Court Kozhikode, [1994] II LLJ 373 (Ker.), per Shamsuddin, J.; Bhikku Ram v. Presiding Officer Industrial Tribunal-cum-Labour Court, Rohtak, [1995] Lab.I.C. 2448 (2458-60) (Punj. & Har.) (D.B.), per Singhvi, J. In the facts and circumstances of the case, the termination was held not to be bona fide.; Nathu Ram Saini v. Hindustan Copper Ltd., [1995] I LLJ 421 (424) (Raj.), per Singhvi J.; Ramkishan v. Samrat Ashok Technical Institute, Vidisha, [1995] I LLJ 944 (999) (M.P.), per Dwivedi, J.; Alexander Yesudas Maikel v. Perfect Oil Seals and I.R.P., [1996] I LLJ 533 (535-36) (Bom.), per Srikrishna, J.; Vadodara Municipal Corporation v. Gajendra R.Dhumal, [1996] I LLJ 206 (208-9) (Guj.), per Balia, J.), a Division Bench of the Allahabad High Court observed that sub-clause (bb) is in the nature of an exception to S.2(oo) and has to be construed strictly and in favour of the workmen, as the entire object of the Act is to secure a just and fair deal to them, while adjudicating the termination of service of a workman for non-renewal of the contract of employment on expiry of the time stipulated in the contract of employment. The nature of employment must be judged by the nature of duties performed by the workman and not on the basis of the letter issued by the employer. S.2(oo)(bb) cannot be extended to cases where the job continues and the employee's work is also satisfactory but periodical renewals are made to avoid regular status to the workmen, as it would be `unfair labour practice'. If contractual employment is resorted to as a mechanism to frustrate the claim of the employee to become regular or permanent against a job which continues or the nature of duties is such that the colour of contractual agreement is given to take it out from S.2(oo), then such agreement cannot be regarded as fair or bona fide. In this case, since the workmen had been working for nearly five years continuously and their jobs were not seasonal, casual or of a daily worker and their duties were like that of a regular employee, the termination of their services on expiry of the stipulated period in the agreement or non-renewal of contract of employment did not come under sub-clause 2(oo)(bb) and amounted to `retrenchment'. A similar view has been taken by a single Judge of a Bombay High Court in Dilip Hanumantrao Shirke v. Zilla Parishad, Yavatmal ([1990] Lab.I.C. 100 (103) (Bom.), per Patel, J., holding that the mere fact that the contract of employment provided termination of by efflux of time, would not by itself be sufficient to take such terminations out of the scope of the definition of `retrenchment'. The adjudicator has to address himself to the question as to whether the period of employment was stipulated in the contract of employment as a device to escape the applicability of the definition of `retrenchment'. Likewise, a single Judge of the Punjab & Haryana High Court in Balbir Singh v. Kurukshetra Central Co-op. Bank Ltd. ([1990] LLJ 443 (445) (Punj. & Har.), per Amarjeet Chaudhary, J. See also: Chairman-cum-managing Director Orissa Road Transport Co. Ltd. v. Ramesh Chandra Gauda, [1994] II LLJ 1127 (1128-29) (Ori.) (D.B.), per Rath, J.) has pointed out that this clause being in the nature of an exception cannot be given meaning which will nullify or curtail the ambit of the principle clause, because it is not intended to be an outlet to unscrupulous employers to shunt out workmen in the garb of non-renewal of the contract even if the work subsists. The clause, therefore, has to be construed strictly in favour of the workman as far as possible. This provision cannot be resorted to, to frustrate the claim of the employee against uncalled for retrenchment or for denying other benefits. In other words, it is not to be so interpreted as to enable an employer to resort to the policy of `hire and fire' and give unguided power to him to renew or not to renew the contract irrespective of the circumstances in which it was entered into or the nature and extent of work for which he was employed. It has to be interpreted to limit it to the case where the work itself has been accomplished and the agreement of hiring for a specific period was genuine. If the work continues, the non-renewal of the contract has to be dubbed as mala fide.
11. In Madhya Pradesh Bank Karamchari Sangh v. Syndicate Bank [(1996) Lab. I.C. 1161 (1165-66) (M.P.), Per Doabia, J.] on a review of the law laid down by the Supreme Court and by various High Courts, a single Judge of the Madhya Pradesh High Court has stated the following principles of interpretation and application of the provisions of this clause --
(i) that the provisions of Section 2(oo)(bb) are to be construed benevolently in favour of the workmen;
(ii) that if the workman is allowed to continue in service by making periodic appointments from time to time, then it can be said that the case would not fall under section 2(oo)(bb);
(iii) that the provisions of S.2(oo)(bb) are not to be interpreted in the manner which may stifle the main provision;
(iv) that if the workman continues in service, the non-renewal of the contract can be deemed as mala fide and it may amount to be a fraud on statute;
(v) that there would be wrong presumption of non applicability of section 2(oo)(bb) where the work is of continuous nature and there is nothing on record that the work for which a workman has been appointed had come to an end .
In Alexander Yesudas Maikel v. Perfect Oil Seals and IRP & Ors. [1996(1) LLJ 533], the Bombay High Court held in paragraph-5 that:
......In any event, one cannot lose sight of the fact that clause (bb) has itself been restrictively interpreted and the judicial consensus appears to be that, if the post cannot be said to operate as a charter for unscrupulous employers to jettison their workmen. (See in this connection Dilip Hanumantrao Shirke & Ors. v. Zilla Parishad, Yavatmal & Ors. (1990-I-LLJ-445) (Bom), State Bank of India v. N.Sundaramoney (1976-I-LLJ-478) (SC), S.S.Sambre v. Chief Reg. Manager Central Bank of India, Nagpur & Anr. (1992-I-LLJ-684 Bom), and K.Rajendran v. Dir.(Per.) Project & Equipment Corporation of India Ltd. New Delhi & Anr. 1992 I CLR 462.
[See : State of Gujarat and Kiritbhai Somabhai Bariya reported in 2006-II-LLJ pg. 1079].
10. Recently, Madras High Court has also considered section 25B and to interpret beneficiary legislation or welfare legislation in case of Management, Malaysian Airlines Chennai versus Presiding Officer, Principal Labour Court, Chennai and another (2007) 5 MLJ 1300. Ratio decidendi as decided by the Madras High Court in the aforesaid decision is as under:
I. 'The word 'preceding' has been used in section 25B of the Industrial Disputes Act as incorporated in the year 1964. The concept of 'preceding' was introduced in the Industrial Disputes Act so as to give complete and meaningful benefit of welfare legislation to the working class.
II.
only because of the action of the Management the workman was terminated without any order and he was stopped from service without being paid compensation either. The conduct of the Management amounted to victimization.
III. The approach to be borne in mind while interpreting the welfare legislation is illustrated in Surendra Kumar Verma's case where the Supreme Court observed that semantic luxuries are misplaced in the interpretation of 'bread and butter' statutes. Welfare statutes must, of necessity, receive a broad interpretation. Where legislation is designed to give relief against certain kinds of mischief, the Court is not to make inroads by making etymological excursions.
11. In Haryana State Electronics Development Corporation Ltd. v. Mamni reported in AIR 2006 SC 2427, the apex court has considered the provisions of section 2(oo) (bb). Observations made by the apex court in para 7 to 11 are reproduced as under:
7. Mr. Ranvir Singh Yadav, learned counsel appearing for the respondent, on the other hand, urged that the respondent having completed 240 days of service within a period of twelve months preceding the date of her termination and in view of the fact that no compensation had been paid as provided in section 25F of the Industrial Disputes Act;
the Labour Court and consequently the High Court has rightly directed her reinstatement with full back wages.
8. Section 2 (oo) (bb) of the Industrial Disputes Act reads as under:-
termination of the service of the workman as a result of the non removal 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.
9. The respondent was appointed from time to time. Her Services used to be terminated on the expiry of 89 days on regular basis. However, it is noticed that she used to be appointed after a gap of one or two days upon completion of each term. Such an action on the part of the Appellant cannot be said to be bona fide. The High Court rejected the contention raised on behalf of the appellant herein stating:
'.....
It is not possible for us to accept the aforesaid plea raised at the hands of the management on account of the fact that the factual position, which has not been disputed, reveals that the respondent workman was repeatedly engaged on 89 days basis. It is, therefore, clear that the intention of the management was not to engage the respondent workman for a specified period, as alleged,but was to defeat the rights available to him under Section 25-F of the Act. The aforesaid practice at the hands of the petitioner management to employ the workman repeatedly after a notional break, clearly falls within the ambit and scope of unfair labour practice. '
10. A finding of fact was arrived at that her services were terminated on regular basis but she was re-appointed after a gap of one or two days. In that view of the matter, the Labour Court or the High Court cannot be said to have committed any illegality.
11. In this case the services of the respondent had been terminated on a regular basis and she had been re-appointed after a gap of one or two days. Such a course of action was adopted by the Appellant with a view to def eat the object of the A ct. Section 2(oo) (bb) of the Industrial Disputes Act, 1947, therefore, it is not attracted in the instant case.
12. In Union of India and others versus Ramchander and Another (2007) 1 SCC (L&S) 439, section 25F of the ID Act, 1947 was considered by the apex court. Observations made by the apex court in para 4 of said decision are reproduced as under:
4. The respondents were appointed against casual labourers but nevertheless they continued in service for four spells and that too their reappointments were made immediately within a few days of termination on completion of 89 days. It shows that sufficient work was available with the employer and had there been no termination on completion of 89 days, they would have completed 240 days of continuous employment. In that view of the matter, the appellants had violated Section 25G of the Industrial Disputes Act. We do not find any error or illegality in the decision rendered by the Division Bench.
In view of above observation made by Apex Court, considering similar facts of periodical appointment on vacant post on regular basis has been held to be not bonafide and it can not attracted provision of section 2(oo)(bb) of I. D. Act, 1947 such kind of periodical appointment against regular vacancies which course has been adopted by employer with a view to defeat object of law. Looking to fact of present case, regular vacancies made available for post of driver in which workman was appointed for a period of six months which has been extended time to time and on 30/6/2003 his service was terminated. So, an appointment which was made by petitioner of respondent workman against regular post of driver and such extension by periodical further order, which course has been adopted by petitioner authority with a view to defeat object of I. D. Act and such kind of termination section 2(oo)(bb) is not attracted in facts of present case also.
In such cases, how to deal with by High Court under Art. 226 and 227 of constitution of India has been recently examined by Apex Court in case of Harjinder Singh Vs Punjab State Warehousing Corpn. reported in 2010 (1) SCALE 613. The Apex Court has considered approach of this Court while keeping in mind social welfare legislative, Court must be compatible with constitutional philosophy of which Directive Principles of State policy constitute an integral part. Justice due to workman should not be denied by entering specious and untenable grounds put forward by employer. The relevant discussion made in aforesaid decision which is very relevant in para 17 to 23 and 26 to 44 are quoted as under:
17. Before concluding, we consider it necessary to observe that while exercising jurisdiction under Articles 226 and/or 227 of the Constitution in matters like the present one, the High Courts are duty bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to sub serve the common good and also ensure that the workers get their dues. More than 41 years ago, Gajendragadkar, J, opined that the concept of social and economic justice is a living concept of revolutionary import; it gives substances to the rule of law and meaning and significance to the ideal of welfare State: - State of Mysore Vs. Workers of Gold Mines AIR 1958 SC 923.
18. In Y. A. Mamarde Vs. Authority under the Minimum Wages Act (1972) 2 SCC 108, this Court while interpreting the provisions of Minimum Wages Act, 1948, observed:
The anxiety on the part of the society for improving the general economic condition of some its less favoured members appears to be in supersession of the old principle of absolute freedom of contract and the doctrine of laissez faire and in recognition of the new principle was advocated by the movement for liberal employment in civilized countries and the Act which is a pre constitution measure was the offspring of that movement. Under our present Constitution the State is now expressly directed to endeavor to secure to all workers (whether agricultural, industrial or otherwise) not only bare physical subsistence but a living wage and conditions of work ensuring a decent standard of life and full enjoyment of leisure. This Directive Principle of State Policy being conductive to the general interest of the nation as a whole, merely lays down the foundation for appropriate social structure in which the labour will find its place of dignity, legitimately due to it in lieu of its contribution to the progress of national economic prosperity.
19. The preamble and various Articles contained in Part IV of the Constitution promote social justice so that life of every individual becomes meaningful and he is able to live with human dignity. The concept of social justice engrafted in the Constitution consists of diverse principles essentially for the orderly growth and development of personality of every citizen. Social justice is thus an integral part of justice in the generic sense. Justice is the genus, of which social justice is one of its species. Social Justice is a dynamic devise to mitigate the sufferings of the poor, weak, dalits, tribals and deprived sections of the society and to elevate them to the level of equality to live a life with dignity of person. In other words, the aim of social justice is to attain substantial degree of social economic and political equality, which is the legitimate expectation of every section of the society. In a developing society like ours which is full of unbridgeable and ever widening gaps of inequality in status and of opportunity, law is a catalyst to reach the ladder of justice. The philosophy of welfare State and social justice is amply reflected in large number of judgments of this Court, various High Court, National and State Industrial Tribunals involving interpretation of the provisions of the Industrial Dispute Act, Indian Factories Act, Payment of Wages Act, Minimum Wages Act, Payment of Bonus Act, Workmen's Compensation Act, the Employees Provident Fund and Miscellaneous Provisions Act and the Shops and Commercial Establishments Act enacted by different States.
20. In Ramon Services (P) Ltd Vs. Subhash Kapoor (2001) 1 SCC 118, R. P. Sethi, J. observed: that after independence the concept of social justice has become a part of our legal system. This concept givens meaning and significance to the democratic ways of life and of making the life dynamic. The concept of welfare State would remain in oblivion unless social justice is dispensed. Dispensation of social justice and achieving the goals set forth in the Constitution are not possible without the active, concerted and dynamic efforts made by the persons concerned with the justice dispensation system.
In L. I. C. of India Vs. Consumer Education and Research Center and Others (1995) 5 SCC 482, K. Ramaswamy, J. observed that social Justice is a device to ensure life to be meaningful and liveable with human dignity. The State is obliged to provide to workmen facilities to reach minimum standard of health, economic security and civilized living. The principle laid down by this law requires courts to ensure that a workman who has not been found guilty can not be deprived of his device then that is misconduct on the part of the employer can not possibly be permitted to deprive a person of what is due to him.
21. In 70s, 80s and early 90s, the courts repeatedly negated the doctrine of laissez faire and the theory of hire and fire. In his teaties:
Democracy, Equality and Freedom, Justice Mathew wrote:
The original concept of employment was that of master and servant. It was therefore held that a Court will not specifically enforce a contract of employment. The law has adhered to the age old rule that an employer may dismiss the employee at will. Certainly, an employee can never expect to be completely free to do what he likes to do. He must face the prospect of discharge for failing or refusing to do his work in accordance with his employer's directions. Such control by the employer over the employee is fundamental to the employment relationship. But there are innumerable facets of the employee's life that have little or no relevance to the employment relationship and over which the employer should not be allowed to exercise control. It is no doubt difficult to draw a line between reasonable demands of an employer and those which are unreasonable as having no relation to the employment itself. The rule that an employer can arbitrarily discharge an employee with or without regard to the actuating motive is a rule settled beyond doubt. But the rule become settled at the time when the words 'master' and 'servant' were taken more literally than they are now and when, as in early Roman Law, the rights of the servant, like the rights of any other member of the household, were not his own, but those of his pater familias. The overtones of this ancient doctrine and discernible in the judicial opinion which rationalized the employer's absolute right to discharge the employee. Such a philosophy of the employer's dominion over his employee may have been in tune with the rustic simplicity of bygone days. But the philosophy is incompatible with these days of large, impersonal, corporate employers. The conditions have not vastly changed and it is difficult to regard the contract of employment with large scale industries and government scale industries and government enterprises conducted by bodies which are created under special statutes as mere contract of personal service. Where large number of people are unemployed and it is extremely difficult to find employment, an employee who is discharged from service might have to remain without means of subsistence for a considerably long time and damages in the shape of wages for a certain period may not be an adequate compensation to the employee for non employment. In other words, damages would be a poor substitute for reinstatement. The traditional rule has survived because of the sustenance it received from the law of contracts. From the contractual principle of mutuality of obligation, it was reasoned that if the employee can quit has job at will, then so too must the employer have the right to terminate the relationship for any or no reason. And there are a number of cases in which even contracts for permanent employment, i.e., for indefinite terms, have been held unenforceable on the ground that they lack mutuality of obligation. But these case demonstrate that mutuality is a high sounding phrase of little use as an analytical tool and it would seem clear that mutuality of obligation is not an inexorable requirement and that lack of mutuality is simply, as many courts have come to recognize, an imperfect way of referring to the real obstacle to enforcing any kind of contractual limitation on the employer's right of discharge, i.e. lack of consideration. If there is anything in contract law which seems likely to advance the present inquiry, it is the growing tendency to protect individuals from contracts of adhesion from overreaching terms often found in standard forms of contract used by large commercial establishments. Judicial disfavour of contracts of adhesion has been said to reflect the assumed need to protect the weaker contracting pari against the harshness of the common law and the abuses of freedom of contract. The same philosophy seems to provide an appropriate answer to the argument, which still seems to have some vitality, that the servant can not complain, as he takes the employment on the terms which are offered to him.
22. In Government Branch Press Vs. D. B. Belliappa (1979) 1 SCC 477, the employer invoked the theory of hire and fire by contending that the respondent's appointment was purely temporary and his service could be terminated at any time in accordance with the terms and conditions of appointment which he had voluntarily accepted. While rejecting this plea as wholly misconceived, the Court observed:
It is borrowed from the archaic common law concept that employment was a matter between the master and servant only. In the first place, this rule in its original absolute from is not applicable to government servants. Secondly, even with regard to private employment, much of it has passed into fossils of time. this rule held the field at the time when the master and servant were taken more literally than they are now and when, as in early Roman Law, the rights of the servant, like the rights of any other member of household, were not his own, but those of his pater familias. The overtones of this ancient doctrine are discernible in the Anglo American jurisprudence of the 18th century and the first half of the 20th century, which retionalised the employer's absolute right to discharge the employee. Such a philosophy , as pointed out by K. K. Mathew, J. (vide his treatise: Democracy Equality and Freedom , p. 326), of the employer's dominion over his employee may have been in tune with the rustic simplicity of bygone days. But that philosophy is incompatible with these days of large, impersonal, corporate employers . To bring it in tune with vastly changed and changing socio-economic conditions and mores of the day, much of this old, antiquated and unjust doctrine has been eroded by judicial decisions and legislation, particularly in its application to persons in public employment, to whom the Constitutional protection of Articles 14, 15, 16 and 311 is available. The argument is therefore overruled.
The doctrine of laissez faire was again rejected in Glaxo Labouratories (India) Ltd Vs. Presiding Officer (1984) 1 SCC 1, in the following words:
In the days of laissez faire when industrial relation was governed by the harsh weighted law of hire and fire the management was the supreme master, the relationship being referable to contract between unequals and the action of the management treated almost sacrosanct. The developing notions of social justice and the expanding horizon of socio economic justice necessitated statutory protection to the unequal partner in the industry namely, those who invest blood and flesh against those who bring in capital. Moving from the days when whim of the employer was suprema lex, the Act took a modest step to compel by statute the employer to prescribe minimum conditions of service subject to which employment is given. The Act was enacted as its long title shows to require employers in industrial establishments to define with sufficient precision the conditions of employment under them and to make the said conditions known to workmen employed by them. The movement was from status of contract, the contract being not left to be negotiated by two unequal persons but statutory imposed. If this socially beneficial Act was enacted for ameliorating the conditions of the weaker partner, conditions of service prescribed thereunder must receive such interpretation as to advance the intendment underlying the Act and defeat the mischief.
23. Of late, there has been a visible shift in the courts approach in dealing with the cases involving the interpretation of social welfare legislations. The attractive mantras of globalization and liberalisation are fast becoming the raison d'etre of the judicial process and an impression has been created that the constitutional courts are no longer sympathetic towards the plight of industrial and unorganized workers. In large number of cases like the present one, relief has been denied to the employees falling in the category of workmen, who are illegally retrenched from service by creating by lanes and side lanes in the jurisprudence developed by this Court in three decades. The stock plea raised by the public employer in such cases is that the initial employment/engagement of the workman employee was contrary to some or the other statute or that reinstatement of the workman will put unbrearable burden on the financial health of the establishment. The courts have readily accepted such plea unmindful of the accountability of the wrong doer and indirectly punished the tiny beneficiary of the wrong ignoring the fat that he may have continued in the employment for years together and that micro wages earned by him may be the only source of his livelihood. It need no emphasis that if a man is derived of his livelihood, he is deprived of all his fundamental and constitutional rights and for him the goal of social and economic justice, equality of status and of opportunity the freedoms enshrined in the Constitution remain illusory. Therefore, the approach of the courts must be compatible with the constitutional philosophy of which the Directive Principles of State Policy constitute an integral part and justice due to the workman should not be denied by entertaining the specious and untenable grounds put forward by the employer public or private.
26. Judges of the last Court in the largest democracy of the world have a duty and the basic duty is to articulate the Constitutional goal which has found such an eloquent utterance in the Preamble. If we look at our Premable, which has been recognized, a part of the Constitution in His Holiness Kesavananda Bharti Sripadagalvaru and others vs. State of Kerala and another (1973 SC 1461), we can discern that as divide in three parts. The first part is a declaration whereby people of India adopted and gave to themselves the Constitution. The second part is a resolution whereby people of India solemnly resolved to constitute India into a sovereign, socialist, secular, democratic republic. However, the most vital part is the promise and the promise is to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
And to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;
(SEE:
Justice R. C. Lahoti, Preamble The Spirit and backbone of the Constitution of India, Anundoram Barooah law Lectures, Seventh Series, Eastern Book Company, 2004, at p. 3)
27. Judges and specially the judges of the highest Court have a vital role to ensure that the promise is fulfilled. If the judges fail to discharge their duty in making an effort to make the Preambular promise a reality, they fail to uphold and abide by the Constitution which is their oath of office. In my humble opinion, this has to be put as high as that and should be equated with the conscience of this Court.
28. As early as in 1956, in a Constitution Bench judgment dealing with an Article 32 petition, Justice Vivian Bose, while interpreting the Article 14 of the Constitution, posed the following question:
After all, for whose benefit was the Constitution enacted?
(Bidi Supply Co. Vs. Union of India and Others AIR 1956 SC 479 at para 23, page 487)
29. Having posed the question, the Learned Judge answered the same in his inimitable words and which I may quote:
I am clear that the Constitution is not for the exclusive benefit of Governments and States; it is not only for lawyers and politicians and officials and those highly placed. It also exists for the common man, for the poor and the humble for those who have businesses as stake, for the butcher, the baker and the candlestick maker . It lays down for this land a rule of law as understood in the free democracies of the world. It constitutes India into a Sovereign Democratic Republic and guarantees in every page rights and freedom to the individual side by side and consistent with the overriding power of the State to act for the common good of all.
30. The essence of our Constitution was also explained by the eminent jurist Palkhivala in the following words:
Our Constitution is primarily shaped and moulded for the common man. It takes no account of the portly presence of the potentates, goodly in girth . It is a Constitution not meant for the ruler but the ranker, the tramp of the road, The slave with sack on his shoulders pricked on with the goad, The man with too weighty a burden, too weary a load. (N.A. Palkhivala, Our Constitution Defenced and Defiled. Mac Millan 1974 p. 29)
31. I am in entire agreement with the aforesaid interpretation of the Constitution given by this Court and also by the eminent jurist.
32. In this context another aspect is of some relevance and it was pointed out by Justice Hidayatullah, as His Lordship was then, in Naresh Shridhar Mirajkar and Anr (AIR 1967 SC 1). In a minority judgment, His Lordship held that the judiciary is a State within the meaning of Art. 12. (See paras 100, 101 at page 28, 29 of the report). This minority judgment, His Lordship was endorsed by justice Mathew in Kesavannanda Bharti (supra) (at page 1949, para 1717 of the report) and it was held that the State under Article 12 would include the judiciary.
33. This was again reiterated by Justice Mathew in the Constitution bench judgment in the case of State of Kerala and another Vs. N. M. Thomas and others (AIE 1976 SC 490) where Justice Mathew's view was the majority view, though given separately. At para 89, page 515 of the report, his Lordship held that under Article 12, 'State' would include 'Court'
34. In view of such an authoritative pronouncement the definition of State under Article 12 encompass the judiciary and in Kesavnanda (supra) it was held that judicial process is also state action (Para 1717, page 1949.)
35. That being the legal position under Article 38 of the Constitution, a duty is cast of the State, which includes the judiciary, to secure a social order for the promotion of the welfare of the people. Article 38(1) runs as follows:
The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.
36. Therefore, it is clearly the duty of the judiciary to promote a social order in which justice, economic and political informs all the institution of the national life. This was also made clear in Kesavananda Bharati (supra) by Justice Mathew at para 1728, p. 1952 and His Lordship held that the Directive Principles nevertheless are:
&fundamental in the governance of the country and all the organs of the State, including the judiciary are bound to enforce those directives. The Fundamental Rights themselves have no fixed content; most of them are mere empty vessels into which each generation must pour its content in the light of its experience.
37. In view of such clear enunciation of the legal principles, I am in clear agreement with Brother J. Singhvi that this Court has a duty to interpret statutes with social welfare benefits in such a way as to further the statutory goal and not to frustrate it. In doing so this Court should make an effort to protect the rights of the weaker sections of the society in view of the clear constitutional mandate discussed above.
38. Thus, social justice, the very signature tune of our Constitution and being deeply embedded in our Constitutional ethos in a way is the arch of the Constitution which ensures rights of the common man to be interpreted in a meaningful way so that life can be lived with human dignity.
39. Commenting on the importance of Article 38 in the Constitutional scheme, this court in Sri Srinivasa Theatre and Others vs. Government of Tamil Nadu and others [(1992) 2 SCC 643], held that equality before law is a dynamic concept having many facets. One facet- the most commonly acknowledged- is that there shall be not be any privileged person or class and that none shall be above the law. This Court held that Art 38 contemplates an equal society [Para 10, pg. 651].
40. In Indra Sawhney and Others vs. Union of India and Others [1992 Supp. (3) SCC 217], the Constitution Bench of the Supreme Court held that:
The content of the expression equality before law is illustrated not only by Articles 15 to 18 but also by the several articles in Part IV, in particular, Articles 38, 39, 39-A, 41 and 46. [at Paras 643, pg. 633]
41. Therefore, the Judges of this Court are not mere phonographic recorders but are empirical social scientists and the interpreters of the social context in which they work. That is why it was said in Authorised Officer, Thanjavur and another vs. S. Naganatha Ayyar and others - [(1979) 3 SCC 466], while interpreting the land reforms Act, that beneficial construction has to be given to welfare legislation. Justice Krishna Iyer, speaking for the Court, made it very clear that even though the judges are constitutional invigilators and statutory interpreters they should also be responsive to part IV of the Constitution being one of the trinity of the nation s appointed instrumentalities in the transformation of the socio-economic order . The Learned Judge made it very clear that when the Judges when decode social legislation, they must be animated by a goal oriented approach and the Learned Judge opined, and if I may say so, unerringly, that in this country the judiciary is not a mere umpire, as some assume, but an activist catalyst in the constitutional scheme. [Para 1, p. 468]
42. I am in entire agreement with the aforesaid view and I share the anxiety of my Lord Brother Justice Singhvi about a disturbing contrary trend which is discernible in recent times and which is sought to be justified in the name of globalisation and liberalisation of economy.
43. I am of the view that any attempt to dilute the constitutional imperatives in order to promote the so called trends of Globalisation , may result in precarious consequences. Reports of suicidal deaths of farmers in thousands from all over the country along with escalation of terrorism throw dangerous signal. Here if we may remember Tagore who several decades ago, in a slightly different context spoke of eventualities which may visit us in our mad rush to ape western ways of life. Here if I may quote the immortal words of Tagore:
We have for over a century been dragged by the prosperous West behind its chariot, choked by the dust, deafened by the noise, humbled by our own helplessness and overwhelmed by the speed. We agreed to acknowledge that this chariot-drive was progress, and the progress was civilization. If we ever ventured to ask progress toward what, and progress for whom , it was considered to be peculiarly and ridiculously oriental to entertain such ideas about the absoluteness of progress. Of late, a voice has come to us to take count not only of the scientific perfection of the chariot but of the depth of the ditches lying in its path.
44. How Stunningly relevant are these words and how deep are the ditches created in our society by the so called advanced of globalization.
In view of above referred observation made by Apex Court which has been kept in mind by this Court and while considering case covered by provision of I. D. Act, 1947, workman has been appointed against regular vacant post on periodical basis without any justification and service also not extended further though post and work remained in existence. Such kind of termination definitely found to be not bonafide and in such cases, termination is not covered by exception of section 2(oo) (bb) of I. D. Act, 1947. However, this specific question was not raised before Labour Court by petitioner, this Court has considered it and dealt with in light of facts which are on record. Therefore, contention raised by learned advocate Mr. Mithani can not be accepted, hence, rejected.
According to my opinion, Labour Court has rightly examined entire matter on merits and on the basis of admission made by witness of petitioner as referred above, rightly granted relief of reinstatement with 25% back wages in favour of workman, for that, Labour Court has not committed any error which would require interference by this Court while exercising power under Art. 227 of Constitution of India. Hence, there is no substance in present petition. Accordingly, present petition is dismissed.
(H.K.RATHOD, J) asma Top