Amit C Kadam vs Mumbai Port Authority And Ors
2023 Latest Caselaw 8541 Bom

2023:BHC-AS:24080

                                                                                      1-wp-10301-2022.doc




                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                APPELLATE CIVIL JURISDICTION

                                     WRIT PETITION NO.10301 Of 2022

             Amit C. Kadam                                                   ...Petitioner
                  vs.
             Mumbai Port Authority and Others                                ...Respondents

             Mr. Jaiprakash Sawant, for the Petitioner.
             Mr. Ajai Fernandez a/w. Mr. Amit Meharia, Mr.Sujith Suresh i/b.
             Meharia and Co. for Respondent No. 1.

                                                 CORAM :          N.J. JAMADAR, J.
                                                 RESERVED ON : 1st AUGUST 2023
                                                 PRONOUNCED ON : 22nd AUGUST, 2023
                                                         ---------
             JUDGMENT:

1. Rule. Rule made returnable forthwith. With the consent of the

learned counsel for the parties, heard finally.

2. By this petition the petitioner takes exception to the common

judgment and award passed by the Presiding Officer, Central

Government, Industrial Tribunal No. 1 (CGIT) in an Application

Nos. CJIT-9, 10 and 11 of 2012 dated 19 th February, 2021 whereby

the Reference, made under section 2-A(2) of the Industrial Disputes

Act, 1947 (the ID Act, 1947) for adjudication of industrial dispute

between the petitioner and respondents No. 2 and 3, of the one part,

and the Mumbai Port Trust, the respondent, of the other part,

which arose over the demand for reinstatement in service with full

Vishal Parekar ...1

1-wp-10301-2022.doc

backwages, continuity in service and all consequential benefits,

came to be dismissed.

3. Shorn of unnecessary details the background facts leading to

this petition can be stated as under:-

3.1 Mumbai Port Trust, respondent, was a Port Trust

established under the Major Port Trust Act, 1963 and now an

Authority under Major Port Authorities Act, 2021. The respondent

is a "State" within the meaning of Article 12 of the Constitution of

India. In response to a public notice issued by Assistant Chief

Medical Officer (Hospital) of respondent No. 1, the petitioner had

applied for the post of X-ray Technician (Jr.). The petitioner had the

necessary qualification prescribed under Mumbai Port Trust

Employees (Recruitment, Seniority and Promotion) Regulations,

2010 for being appointed to the said post.

3.2 The petitioner claimed to have undergone a regular

selection process. He was interviewed and declared successful, by

the Service Selection Committee. The petitioner was made to

undergo pre-appointment medical examination. Post certification of

medical fitness, the petitioner was appointed as X-ray Technician

(Jr.) with effect from 5th April, 2007.

3.3              The petitioner alleged, the respondent did not pay full


Vishal Parekar                                                                     ...2





                                                                     1-wp-10301-2022.doc

wages and deprived the petitioner of the rights and benefits

admissible under various civil and labour welfare legislations. The

respondent No. 1 gave artificial breaks in service after every six

months and thereby indulged in unfair labour practices. As a part of

such unfair labour practice, the petitioner was given break in

service on 4th October, 2007 and reappointed on 18th February,

2008. Thereafter, the petitioner's services were terminated on 17 th

August, 2008; only to be appointed on 12 th September, 2008. The

petitioner claims in the aforesaid fashion, the petitioner was made

to serve with the respondent No. 1 till 9 th September, 2011, with

artificial breaks in service, so as to deprive the petitioner of the

benefits of permanency.

3.4 The petitioner claimed he was appointed to substantive

post after following the prescribed selection process in accordance

with the recruitment rules. Respondent No. 1 resorted to a

subterfuge of appointment on 'locum' basis to exploit the

petitioner's labour. Two of the similarly circumstanced employees

were, however, made permanent. Hence, the petitioner initially

approached the Conciliation Officer. As conciliation failed, petitioner

raised industrial dispute under section 2A(2) of the ID Act seeking

reinstatement in service w.e.f. 11th September, 2011 with continuity

in service, full backwages and all the consequential benefits.

Vishal Parekar                                                                     ...3





                                                                 1-wp-10301-2022.doc

4. The respondent No. 1 contested the petitioner's claim. The

substance of the resistance put forth by the respondent No. 1 was

that the petitioner was appointed on a purely temporary basis, as a

"locum". When the petitioner was appointed on locum basis, there

was a ban on filling up of the vacancies. In order to meet the

exigency of the situation on account of ban on recruitment X-ray

Technician (Jr.) were appointed on locum/temporary basis,

expressly mentioning in the appointment order that the term of

service of the persons so appointed on locum basis would be six

months or till filling up the post on regular basis, whichever was

earlier.

5. Respondent No. 1 further contends it was on 22 nd March,

2010 that the Ministry of Shipping approved two posts of X-ray

Technician (Jr.) and two posts of Laboratory Technician (Jr.).

Thereafter, the petitioner did appear for the examination. However,

the petitioner could not secure requisite minimum marks and,

therefore, was not called for practical test and viva-voce.

Suppressing the said facts, the petitioner raised the industrial

dispute. The respondent No. 1 thus denied that the petitioner was

deliberately deprived of the permanency and was discriminated

against.

Vishal Parekar                                                                 ...4





                                                                  1-wp-10301-2022.doc

6. The learned Presiding Officer, CGIT recorded the evidence of

the petitioner and that of Administrative Officer of respondent No.

1. After appraisal of the evidence adduced and documents tendered

for his perusal, the learned Presiding Officer was persuaded to

dismiss the complaint holding, inter alia, that the petitioner was

appointed on a purely temporary basis. The termination of the

services of the petitioner did not amount to 'retrenchment' and,

therefore, conditions stipulated in section 25F of the ID Act, 1947

were not required to be complied with and, thus, the petitioner was

not entitled to the relief of reinstatement in service and

consequential benefits.

7. Being aggrieved, the petitioner has invoked the writ

jurisdiction.

8. I have heard Mr. Jaiprakash Sawant, learned counsel for the

petitioner, and Mr. Ajai Fernandez, learned counsel for respondent

No. 1 at some length. With the assistance of the learned counsel for

the parties, I have perused the material on record including the

impugned judgment and award.

9. Mr. Sawant, learned Counsel for the Petitioner, would urge

Vishal Parekar ...5

1-wp-10301-2022.doc

that the learned Presiding Officer CGIT committed an error in

appreciating the case of the Petitioner. The fact that the Petitioner

was appointed for years together by following selection procedure

prescribed under the Recruitment Regulations 2001. It was

incontrovertible that the Petitioner had put in more than 240 days

in each of the six years of service with the Respondent No. 1., and

therefore, the learned Presiding Officer, CGIT was not at all justified

in holding that the termination of the services of the Petitioner did

not amount to retrenchment, and, thus protection envisaged by

Section 25-F of the Industrial Disputes Act, 1947 was not available.

Laying emphasis on the indisputable facts about the appointment of

the Petitioner pursuant to selection by the Selection Committee in

the manner ordained by Recruitment Regulations 2010 and the

artificial breaks in service given by the employer, Mr. Sawant would

urge that the case is squarely governed by the protective umbrella

of Section 25-F of the Act, 1947. Since non-compliance of the said

statutory mandate is indisputable, Mr. Sawant would urge, the

Petitioner could not have been denied the reliefs of reinstatement

and consequential benefits.

10. To lend support to the submission that once the retrenchment

is found foul with the provisions of Section 25-F of the Act, 1947, a

Vishal Parekar ...6

1-wp-10301-2022.doc

workman cannot be deprived of the admissible reliefs, Mr. Sawant

placed reliance on judgment of the Supreme Court in the case of

Anoop Sharma V/s. Executive Engineer, Public Health Division

No.1, Panipat Haryana1 and S.G.Chemical and Dyes Trading

Employees' Union v/s. S.G.Chemicals and Dyes Trading Ltd. And

Anr.2 and on the judgment of this Court in the case of P.M.More v/s

Presiding Officer, CGIT No.1 and Anr.3.

11. Mr. Fernandes, learned Counsel for Respondent No.1

countered the submissions of Mr. Sawant. According to Mr.

Fernandes, the aforesaid submissions based on the provisions of 25-

F of the Act, 1947 do not merit any consideration as the fact that

employment in question is a public employment is conveniently lost

sight of by the Petitioner. Mr. Fernandes would urge that the

learned Presiding Officer, CGIT was wholly justified in non-suiting

the Petitioner by following the line of decisions starting from the

Constitution Bench judgment of the Supreme Court in the case of

Secretary, State of Karnataka and Ors. v/s Umadevi (3) and Ors.4.

12. In the case at hand, according to Mr. Fernandes, it is

1 2010 (II) CLR 1 21986 LAB I.C.863 32001-III-LLJ (suppl) 689 4(2006) 4 SCC 1

Vishal Parekar ...7

1-wp-10301-2022.doc

incontestable that the Petitioner came to be appointed as Jr.

Technician on 'locum' basis. Appointment orders indicated in clear

and explicit terms that the appointment was to be for the period of

six months or till the filling up of the regular vacancy, whichever

was earlier.

13. Mr. Fernandes laid emphasis on the fact that the Petitioner

admitted in no uncertain terms that he had accepted the temporary

appointment after clearly understanding the terms of the

appointment. Since the appointments on 'locum' basis were made

by the Respondent No.1 as there was a bar imposed by the Ministry

of Shipping upon recruitment of the staff, the appointment on

'locum' basis was to meet the exigency of the situation. Moreover,

after the Ministry of Shipping gave approval for filling up the post

by direct recruitment, the Petitioner did appear for the

examination, but could not succeed. In this state of affairs,

according to Mr. Fernandes, the termination of the services of the

Petitioner upon the completion of the contract of appointment on

purely temporary basis, can in no case be termed as retrenchment.

It was a termination simplicitor of the service of an employee

appointed for a fixed term, and, therefore, sub-clause (bb) of Clause

(oo) of Section 2 of the Act, 1947 came into play and the

Vishal Parekar ...8

1-wp-10301-2022.doc

termination would not amount to retrenchment.

14. The aforesaid submissions now fall for consideration. To start

with, it may be appropriate to note few uncontroverted facts.

Incontrovertibly, the Petitioner came to be appointed for the first

time under a letter dated 26 March 2007. The Petitioner joined on

5 April 2007. The appointment letter and the subsequent order

dated 10 April 2007 record that the appointment of the Petitioner

to the post of X-Ray Technician (Jr.) was on 'locum' basis. Secondly,

the said appointment letter and the subsequent appointment

letters, as well, contained a specific clause that the appointment

was purely on locum basis on a consolidated payment of Rs.8,800/-

per month for a maximum period of six months or till the filling of

the post of regular post, which was earlier. Thirdly, the said

appointment came to be offered after the Petitioner was selected by

the Services Selection Committee post interview and practical test.

Fourthly, the fact that the services of the Petitioner were

terminated after few months and the Petitioner came to be

reappointed on the same terms and conditions is also incontestable.

Fifthly, the services of the Petitioner came to be finally terminated

vide letter dated 9 September 2011 with effect from 10 September

2011. Sixthly, it is indisputable that the Petitioner had appeared for

Vishal Parekar ...9

1-wp-10301-2022.doc

the regular recruitment process and did not succeed therein.

Lastly the non-compliance of the mandate contained in Section 25-F

of the Act, 1947 is also not in contest.

15. The controversy revolves around the questions as to whether

the termination of the services of the Petitioner with effect from 10

September 2011 constitutes retrenchment within the meaning of

Section 2(oo) and, consequently, the applicability of the provisions

of Section 25-F of the Act, 1947.

16. Retrenchment is defined under clause (oo) of Section 2 as

under :

"Retrenchment means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include-

(a) voluntary retirement of the workman; or

(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (bb) termination of the service of the workman as a result of the non-renewal newal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or

(c) termination of the service of a workman on the ground of continued ill-health.

17. On a plain reading, retrenchment implies termination of the

Vishal Parekar ...10

1-wp-10301-2022.doc

services of a workman for any reason whatsoever, otherwise than

as a consequence of disciplinary action. Sub-clauses (a) to (c) carve

out the exceptions. Sub-clause (bb), with which we are primarily

concerned with the case at hand, takes the termination of the

services of a workman as a result of the non-renewal of the contract

of employment or a contract itself being terminated pursuant to a

stipulation contained therein, out of purview of retrenchment. If the

termination falls within the excluded category envisaged by sub-

clause (bb), it would not amount to retrenchment and, thus, the

employer would not be obligated to satisfy the conditions stipulated

under Section 25-F of the Act, 1947.

18. At the hub of the controversy is whether the termination in

question falls within the ambit of clause (bb). For an answer, it is

necessary to keep in view the nature of the employment and the

post on which the Petitioner came to be appointed (on locum basis).

Mr. Sawant would urge that the Petitioner came to be appointed on

a substantive post by following rigorous selection process by the

Services Selection Committee constituted under Recruitment

Regulations, 2010. It was certainly not a backdoor entry to fall

within the category of cases governed by the Constitution Bench

judgment in the case of Umadevi (supra).

Vishal Parekar                                                                  ...11





                                                                    1-wp-10301-2022.doc

19. The aforesaid submissions is required to be appreciated in the

backdrop of the fact that the circular, inviting applications which

preceded the appointment which preceded the appointment of the

Petitioner clearly stipulated that the applications were invited to fill

up vacancy of Technician on locum basis. As noted above, the

appointment orders also record the said fact explicitly. The reason

for appointment on temporary basis, ascribed by the Respondent

No.1, was that there was no sanction by the concerned Ministry to

fill up the posts on regular basis. The said claim of Respondent No.1

finds support in the proposal dated 19 September 2007 forwarded

on behalf of Respondent No.1 to the Secretary to the Government of

India, Ministry of Shipping seeking permission for filling of entry

level post under annual contract recruitment plan 2006-2007 and

the approval granted by the Ministry of Shipping vide letter dated

22 March 2010 whereby the Port Trust was permitted to fill up

entry level post under annual contract recruitment plan for the

years 2006-07 and 2007-08. These documents lend support to the

contention of Respondent No.1 that on account of the ban on the

recruitment and awaiting approval of the Ministry of Shipping, the

Respondent No.1 was constrained to fill up the post on temporary

basis.

Vishal Parekar                                                                   ...12





                                                                         1-wp-10301-2022.doc

20. At this juncture, the recourse to the provisions contained in

Mumbai Port Trust Employees (Recruitment, Seniority and

Promotion) Regulations, 2010 would be advantageous. Regulation

14 governs the appointment of a candidate on ad-hoc basis.

Relevant part of Regulation 14 reads as under :

14] CONSIDERATION OF RECOMMENDATIONS OF SERVICES SELECTION COMMITTEE AND AD-HOC APPOINTMENTS :-

All appointments by direct recruitment shall be made by the Appointing Authority on the recommendations of the concerned Services Selection Committee.

Provided that it shall be open to the Appointing Authority, for reasons to be recorded in writing, not to accept the recommendations of Services Selection Committee;

Provided further that where the Appointing Authority is an authority subordinate to the Chairman and the Authority disagrees with such recommendations in any case, it shall record its reasons for such disagreement and submit the case to the Chairman who shall decide the same;

Provided also that in the case of a purely temporary post, a leave vacancy or a vacancy earmarked for direct recruitment requiring immediate filling up, the Chairman may appoint a person who is eligible to fill the vacant post for a period of six months at a time and not exceeding one year on ad hoc basis subject to the condition that:

(1) Ad-hoc appointment, where unavoidable, should be made only strictly subject to fulfilling the qualifications, experience provided in the RRs. (2) Total period of appointment to a temporary post will not exceed the tenure of the post.

(3) In other cases the temporary appointment should be replaced by a regular appointment from the select list as soon as possible.

Vishal Parekar                                                                        ...13





                                                                           1-wp-10301-2022.doc

21. The aforesaid regulation, if properly construed, would show

that even for making a temporary appointment, the Services

Selection Committee constituted thereunder was required to carry

out selection process. Thus, the thrust of the submission on behalf

of the Petitioner that the Petitioner came to be appointed after

following proper selection process does not advance the cause of the

Petitioner to the extent desired by the Petitioner. The fact that the

Petitioner has under gone the selection process before he came to be

appointed on locum basis in the face of the aforesaid prescription in

the Regulations 2001, does not necessarily lead to an inference

which was sought to be drawn by Mr. Sawant that the Petitioner

was appointed to a substantive post by following regular selection

process. Conversely, an inference becomes inescapable that under

the recruitment regulations the Competent Authority was

empowered to appoint candidates on temporary post and such

appointments were made after following the procedure of selection

prescribed therein.

22. Mr. Sawant would, however, urge that the Petitioner having

been selected by following proper selection procedure and found

eligible and suitable in all respect could not have been designated as

a temporary employee and the mere fact that the appointment

Vishal Parekar ...14

1-wp-10301-2022.doc

orders stipulated a period of appointment when the work

performed by the Petitioner was available all along does not change

the nature of the appointment. Such artificial break in service so as

to deprive the employee from the benefits otherwise available to a

permanent employee has been judicially recognized to be an unfair

labour practice, urged Mr. Sawant.

23. Mr. Sawant placed reliance on the observations of the

Supreme Court in the case of Bhilwara Dugdh Utpadak Sahakari S.

Ld. V/s. Vinod Kumar Sharma (dead) by Lrs and Ors.5 wherein the

Supreme Court enunciated that labour statues were meant to

protect the employees/workmen because it was realised that the

employers and the employees are not on an equal bargaining

position. Hence, protection of employees was required so that they

may not be exploited. However, a new technique of subterfuge has

been adopted by some employers in recent years in order to deny

the rights of the workmen under various labour statutes by showing

that the concerned workmen are not their employees but are the

employees/workmen of a contractor or that they are merely daily

wage or short term or casual employees when in fact they are doing

the work of regular employees.

52001 III CLR 386

Vishal Parekar                                                                ...15





                                                                  1-wp-10301-2022.doc

24. Reliance was also placed by Mr. Sawant on a judgment of

this Court in the case of Keru Kisan Rokade V/s. Geoffery Manners

& Co. Ltd. Nasik6, wherein this Court having found that the

workman therein was continued in service from 4 August 1984 to 4

September 1989, with intermittent breaks, and the appointment

orders contained a stipulation of a fixed term, this Court observed

that the claim of the employer that the appointments are for a fixed

term is unsustainable. The workman has been continued in service

over many years by continuously issuing appointment orders for a

month or two. There was evidence on record to indicate that work

was available with the Respondent. In any case, the Petitioner -

workman had completed 240 days in service in the 12 preceding

calender months. The appointment letters were merely a ruse of

the employer to get out of the clutches of Section 25-F of the Act,

1947. Holding thus, this Court repelled the submission on behalf of

the employer that the employment of the workman was on a

contractual post and, therefore, the provisions of Section 25-F had

no application.

25. The aforesaid pronouncements, as is evident, govern a

completely different fact situation. The observations of the Supreme

Court in the case of Bhilwara Dugdh Utpadak Sahakari S. Ltd.

62011-II-LLJ-408 (Bom)

Vishal Parekar                                                                 ...16





                                                                           1-wp-10301-2022.doc

(supra) were made in the context of the subterfuge resorted to by

the employer of showing the employees as the employees of a

contractor. The judgment of this Court in the case of Keru Kisan

Rokade (supra) was not rendered in a case of a public employment.

If in a given case, an employer is shown to have resorted to the

stratagem of issuing appointment orders for a short period of time,

giving artificial breaks for a couple of days and reappointing the

very same employee to perform the work of perennial nature for

years together, the Court would be justified in penetrating the

strategum. However, when the employment in question is a public

employment governed by the Recruitment Rules and the

appointments are made on temporary post in conformity with the

power thereunder, different considerations come into play.

26. Mr. Sawant made an endeavour to wriggle out of the situation

by placing reliance on the decision of the Supreme Court in the case

of Anoop Sharma (supra) wherein it was enunciated that the

judgment of the Supreme Court in the case of Umadevi (supra) has

no bearing on interpretation of Section 25-F of the Act and the

employers obligation to comply with the conditions enumerated in

that Section. The Supreme Court, inter alia, observed as under :

19] The judgment of the Constitution Bench in Secretary, State of Karnataka V/s. Uma Devi (supra)

Vishal Parekar ...17

1-wp-10301-2022.doc

and others decisions in which this Court considered the right of casual, daily wage, temporary and ad-hoc employees to be regularized/continued in service or paid salary in the regular time scale, appears to have unduly influenced the High Court's approach in dealing with the Appellant's challenge to the award of he Labour Court. In our view, none of those judgments has any bearing on the interpretation of Section 25-F of the Act and the employer's obligation to comply with the conditions enumerated in that Section.

20] At the cost of repetition, we consider it necessary to mention tht it was not the pleaded case of the respondent before the Labour Court and even before the High Court that the appellant was engaged/employed without following the statutory rules or Articles 14 and 16 of the Constitution and that was the basis for discontinuing his engagement. Therefore, the High Court was not justified in relying upon the alleged illegality of the engagement /employment of the appellant for upsetting the award of reinstatement.

(emphasis supplied)

27. I am afraid the aforesaid pronouncement is of any assistance

to the Petitioner's case. In the said case, the Supreme Court found

that a clear case of retrenchment and non-compliance of the

mandate contained in Section 25-F of the Act was made out. In the

case at hand, as noted above, since the appointment of the

Petitioner was made to fill up a temporary vacancy on account of

the ban on regular recruitment and to meet the exigency of the

situation which thereby arose, on a post which was required to be

filled up in accordance with the Recruitment Regulations 2010 by

offering public employment and carrying out the structured

selection process, the termination of the services of the Petitioner

Vishal Parekar ...18

1-wp-10301-2022.doc

post filling of the regular vacancy by following prescribed selection

process can fall only within the ambit of Sub-clause (bb) of Section 2

(oo) of the Act, 1947.

28. At this stage, the fact that the Petitioner conceded in the

cross-examination that he was fully aware that the applications

were invited to fill up the vacancy on locum basis, he understood

the terms and conditions on which he was offered appointment for a

term of six months or till the filling of the regular vacancy clearly

and that he had, in fact, appeared for the recruitment process

carried out to fill up a regular vacancy and was not called for

practical test as he had not secured the requisite marks, in the

written test firmly rule out any unfair labour practice or

victimization on the part of the employer. The termination of the

services of the Petitioner on 10 September 2011 followed the

selection of the candidates who were found successful in the

selection process as is evidenced by the Minutes of the meeting

dated 18 August 2011.

29. Resultantly, viewed from any perspective, neither a case of

retrenchment, without following the mandate contained in Section

25-F of the Act, nor unfair labour practice or victimization is made

Vishal Parekar ...19

1-wp-10301-2022.doc

out. The learned Presiding Officer, CGIT thus committed no error in

dismissing the complaint.

30. The conspectus of aforesaid consideration is that no

interference is warranted in the impugned order in exercise of writ

jurisdiction.

Hence, the following order :

ORDER

1. The Writ Petition stands dismissed.

2. Rule discharged.

3. In the circumstances, the parties shall bear their

respective costs.

                                                          (N. J. JAMADAR)




Vishal Parekar                                                                     ...20