New Delhi Municipal Council vs Anil Kumar Gupta And Anr.
2006 Latest Caselaw 1629 Del

JUDGMENT

Shiv Narayan Dhingra, J.

1. By this writ petition, the petitioner has challenged the validity of the Award of Labour Court VII dated 25.3.2000 whereby the Labour Court had directed the petitioner to reinstate the respondent with 50% back wages.

2. Briefly the facts are that the respondent was appointed for a fixed period of six months on 29.9.1992. On expiry of six months on 28.3.1993, his services were extended by a letter dated 7.4.1993 for a another period of six months i.e up to 30.6.93. The contention of the respondent before Tribunal was that even after the expiry of his extended period he continued to work without any formal letter up to 28.7.1993. Thereafter, he was not allowed to work and his services were terminated. The learned Tribunal observed that the respondent workman continuously worked from 28.9.1992 to 28.7.1993, hence the plea taken by the management that services of the workman came to an end by efflux of time was wrong and since he was allowed to work despite non extension of the period up to 28.2.1993, the act of the management in not allowing the workman to work from 28.7.1993 amounted to retrenchment under Section 25F read with 2(oo) of the Industrial Disputes Act, 1947 ( for short the Act).

3. Section 2(oo)(bb) of the Act which reads as under:

2 (oo) retrenchment means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action but does not include-

(a) voluntary retirement of the workman; or

(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or

(bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under the stipulation in that behalf contained therein or)

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

4. It is clear from the provisions of Section 2(oo)(bb) of the Act that if a contractual employment of a fixed period comes to an end, such termination is not called retrenchment. Merely because the respondent continued to work after the expiry of the contract for few days without any appointment letter shall not change the nature of his appointment and the contract of services entered into with the respondent for a fixed period will not become null and void. In - Haryana State Agricultural Marketing Board v. Subhash Chand and Anr.), the respondent was appointed on contractual basis as an Arrival Record Clerk for a period of three months in wheat/paddy seasons. He was again appointed for the terms of three months twice. On his termination he raised an industrial dispute claiming that he had worked for 356 days. The Labour Court inter alia held that the termination of services of the workman was in violation of the provisions of Section 25-G of the Act and the management took recourse to unfair labour policy. A writ petition filed before the High Court was dismissed and the matter came before the Supreme Court by way of Special Leave Petition. The Supreme Court held that since the appointment of the respondent was made on contract basis the provisions of Section 2(oo)(bb) would be applicable. The question whether chapter V-A of the Industrial Disputes Act would apply or not would depend on the issue as to whether the order of retrenchment comes within the purview of Section 2(oo)(bb) of the Act or not. If the termination of service falls within the exception containing clause (bb) of Section 2(oo) the question of applicability of Chapter V-A would not arise.

5. The grant of 50% back wages by the Labour Court to a person who had worked only for a short period with the management is beyond comprehension. The respondent was merely a contractual employee whose services had come to an end by efflux of time. He was a Junior Engineer and was appointed for a limited period. If a person who works for a year or so, temporarily is allowed to have 50% wages for a period of several years for which he had not worked it would amount to unjust enrichment. I consider that before passing an order for back wages, the Tribunal must take into account the nature of appointment, the number of days a person has worked with the management and whether he was so disqualified not to get alternative appointment and whether he had any right to continue with the management being appointed in violation of recruitment rules of the department. In General Manager Haryana Roadways v. Rudhan Singh - 2005 SCC (L&S) 716, Supreme Court observed as under:

There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section 25-F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment i.e whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wages, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete period i.e from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily-wag employment though it may be for 240 days in a calendar year. ( para 8)

The written statement filed by the respondent shows that between 16.3.1988 to 31.10.1988 he had been given short-term appointments as helper, washboy and water carrier with breaks of two days and seven days respectively on two occasions. After 31.10.1988 he was employed as helper on 8.1.1989 after a gap of more than two months. This appointment was only up to 31.1.1989 and thereafter he was given fresh appointment on 7.2.1989, which came to an end on 28.2.1989. These facts show that the respondent had not worked continuously from 16.3.1988 to 28.2.1989 in the establishment of the appellant. A person appointed on daily wage basis gets wages only for days on which he has performed work. (Para 9)

6. The respondent in this case was Junior Engineer and was appointed by the petitioner for emergency requirements. It is settled law that State and its instrumentalities have power to make ad hoc appointments as and when required and services of such persons can be dispensed with when requirement ends. Supreme Court in Secretary State of Karnataka v. Uma Devi held as under:

During the course of the arguments, various orders of courts either interim or final were brought to our notice. The purport of those orders more or less was the issue of directions for continuation or absorption without referring to the legal position obtaining. Learned Counsel for the State of Karnataka submitted that chaos has been created by such orders without reference to legal principles and it is time that this Court settled the law once for all so that in case the court finds that such orders should not be made, the courts, especially, the High Courts would be precluded from issuing such directions or passing such orders. The submission of learned Counsel for the respondents based on the various orders passed by the High Court or by the Government pursuant to the directions of Court also highlights the need for settling the law by this Court. The bypassing of the constitutional scheme cannot be perpetuated by the passing of orders without dealing with and deciding the validity of such orders on the touchstone of constitutionality. (para 14)

When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution.

7. I consider that the Tribunal misdirected itself in holding that since the respondent continued to work for few days after 30.6.1993 despite non renewal of contract, he stood retrenched. If he continued to attend office without any appointment and worked for few days that does not make him entitled to continue with the petitioner forever. His contract of service came to an end on 30.6.1993. He had no reason to come to the office. He cannot claim benefit of his this Act or benefit of negligence of some officer of the petitioner in not telling him that he should not come to the office.

8. The petitioner, which is an instrumentality of State and has rules of recruitment to service should not engage ad hoc appointments unless very necessary. However, if for some exigency ad hoc or contractual appointments are made, the Tribunal and Court should not by their orders continue contractual or ad hoc employees whose services are not required by the department The Court should encourage only regular appointments as per law. This is the mandate of the Supreme Court in Uma Devi (supra) case.

9. In view of above facts, the petition is allowed and the Award dated 25.3.2000 is hereby set aside.