Shri Surjeet Kumar vs Presiding Officer And Ors.
2007 Latest Caselaw 441 Del

JUDGMENT

Kailash Gambhir, J.

1. Rule. With the consent of counsel appearing for the parties the matter is taken up for final hearing.

2. The petitioner has approached this Court by invoking writ jurisdiction under Article 226 and 227 of the Constitution of India feeling aggrieved with the award dated 22.06.1999 passed by the Labour Court. The Labour Court was called upon by the appropriate government to adjudicate the dispute between the parties in terms of the following reference:

Whether the services of Shri Surjeet Kumar have been terminated illegally and/or unjustifiably by the Management and if so, to what relief is he entitled and what directions are necessary in this respect

3. The Labour Court after having gone through the pleadings of the parties and evidence adduced by them had reached to the conclusion that the termination of service of the petitioner is covered under Section 2(oo)(bb) of the Industrial Disputes Act and, therefore, the same did not tantamount to retrenchment and accordingly the petitioner was held to be not protected under Section 25F of the Industrial Disputes Act.

4. Before adverting to the arguments advanced by the respective counsels it would be appropriate to give the facts of the case in nutshell. The petitioner claimed himself to be a workman under the employment of the respondent Management since 17.01.1989 on the post of a driver and his last drawn salary was at Rs. 1700/- p.m. The service of the petitioner workman was terminated on 04.01.1993 by the respondent Management without any rhyme and reason without following the due process as prescribed under Section 25F of the Industrial Disputes Act. The petitioner further claims that he had worked for a total period of 3 years, 11 months and 18 days with continuity of service on a permanent post.

5. Per contra, the case of the respondent Management as set up in reply to the statement of claim is that the petitioner workman was employed in connection with the project on 17.01.1989 which project was under construction at DLF Gurgaon. He was employed on temporary basis and his service automatically came to an end at the expiry of the completion of the project for which the services of the petitioner were engaged. Respondent No. 1 further stated that temporary employment of the petitioner was to last for one year only after 16.01.1990 in accordance with the terms and conditions of contract of employment which were duly accepted by the petitioner. Due to non completion of the project within the time, the respondent Management continued to avail the services of the petitioner for further periods and on every extension, separate contract was entered into between the petitioner and the Management clearly spelling out the terms and conditions governing the contractual relationship. The respondent has further stated that the service of the petitioner workman automatically came to an end on the expiry of the contracted period on 31.12.1992 by efflux of time and accordingly, the workman also stopped coming to attend any work after the said period. The respondent, thus, made out a case in the written statement that the employment of the petitioner was terminable with the end of the project. The respondent, therefore, claimed that the case of the petitioner did not amount to retrenchment under Section 2(oo) of the Industrial Disputes Act and, therefore, he was not entitled to any protection under Section 25F of the Industrial Disputes Act, rather the case of the petitioner falls within the ambit of exception clause provided under Section 2(oo)(bb) of the Industrial Disputes Act.

6. I have heard Shri S.L. Kashyap, counsel for the petitioner and Shri Anil K. Kher, counsel for the respondents at length and my conclusions are as under:

Counsel for the petitioner in his arguments has contended that the petitioner was in permanent employment of the respondent and he has worked on the post of Driver for more than three years, therefore, admittedly he was in employment with the respondent Management for more than 240 days. The argument of counsel for the petitioner is that once he has completed 240 days in service, indisputably, the workman becomes entitled to protection under Section 25F of the Industrial Disputes Act and since the respondent did not comply with the said provision of Section 25F of the Industrial Disputes Act, therefore, retrenchment of the petitioner workman was ex facie illegal. Counsel for the petitioner has further contended that the appointment letters issued by the respondent at the end of each year were merely a device to circumvent the provisions of Section 25F of the Industrial Disputes Act, otherwise, the nature of the employment of the petitioner was permanent and the same could not have been linked up with any project as falsely incorporated by the respondent in the appointment letters. Counsel for the petitioner has further contended that it is not only that he continued working with the respondent till 31.12.1992, the date which is claimed by the respondent to be the last date of service of the petitioner workman, but he continued working till 04.01.1993. In support of this argument the petitioner has placed reliance upon a letter dated 07.01.1993 issued by one S. Bhattacharya, Project Manager of the respondent in which it has been certified that the petitioner workman had worked w.e.f. 01.01.1993 till 04.01.1993. The contention of the counsel for the petitioner is that once the certificate duly certifying his employment till 04.01.1993 is issued, that is even after the expiry of the contract period i.e. 31.12.1992, it cannot be said that his service came to an end just by the end of 31.12.1992 but the same continued even till 04.01.1993. Counsel for the petitioner has also referred to some of the averments made by the respondent Management in the written statement so as to highlight self defeating and contradictory stand of the respondent Management. As on one hand, respondent has stated in the written statement that the services of the petitioner workman came to an end on 31.12.1992 and the workman himself stopped coming for work after 31.12.1992, while on the other hand through the said certificate as mentioned above, the Project Manager of the respondent has issued a certificate certifying the work of the petitioner with the Management till 04.01.1993. Counsel for the petitioner has advanced yet another argument by referring to the written statement of the Management that if the termination of the petitioner was legal or as per the mandate of the law then why the respondent Management in the said para of the written statement has offered retrenchment compensation of Rs. 5660/- to the petitioner workman. Counsel for the petitioner has also contended that the Management failed to produce the best evidence of Mr. B. Bhattacharya and, therefore, the Tribunal ought to have drawn adverse inference against the Management.

Counsel for the respondent, on the other hand, has relied upon the terms and conditions of the contractual employment letters issued in favor of the petitioner workman from time to time. The contention of counsel for the respondent is that the terms and conditions of the contract of employment were duly accepted and acknowledged by the petitioner workman and in accordance with the said terms and conditions of the employment, his service automatically came to an end at the expiry of the last working day, i.e., on 31.12.1992 by efflux of time. Counsel for the respondent stated that under no circumstances the petitioner could be allowed to wriggle out from the said terms of contractual employment under a project, once there was an unambiguous and unequivocal acceptance of the same, without any reservation. On the letter issued by the Project Manager dated 07.01.1993 counsel for the respondent contends that the said document is only a typed copy and the petitioner has failed to prove the said document as per law. He further stated that the said document could be of no help to the petitioner as in his own admission during his cross-examination he had admitted that he was unemployed after 31.12.1992. Counsel for the respondent, therefore, submitted that the case of the petitioner workman is covered under the exception provided in Clause (bb) of Section 2(oo) of the Industrial Disputes Act and consequently he is not entitled for any protection under Section 25F of the Industrial Disputes Act.

Before I delve on the arguments advanced by the respective counsels, it would be worthwhile to refer to one of the employment letters lastly issued in favor of the petitioner for engaging his services w.e.f. 01.01.1992 to 31.12.1992. The language of all these letters except variation in the period are identical in contents. Heading of this letter begins with "Contract of Temporary Employment for a fixed term." It further states that the terms and conditions, on which the employment was being offered, was purely temporary employment with I.T.C. Limited, at Welcomgroup Project Office for the period from 01.01.1992 to 31.12.1992. This letter further states that temporary employment of the petitioner workman will automatically expire at the end of the contracted period and no further notice of the expiry of such period shall be given to the workman. It also states in its para 9 that temporary employment of the workman shall be terminated forthwith without any notice or any payment in lieu of notice. In its para 10 it is stated that temporary employment of the workman for the aforesaid period is in connection with the work of an essential temporary character related to construction. The letter is duly signed by the authorized signatory of the respondent Management and the terms of the same were duly accepted by the petitioner workman under his signatures by stating that "I accept the said terms and conditions as set out above.

7. Once the petitioner workman had accepted the terms and conditions of the said temporary employment without any demur and reservation, later he cannot be allowed to take any contradictory or inconsistent stand. It can be clearly noticed that the petitioner workman had fully understood that his appointment was linked with the project and the same was short lived. The petitioner has also failed to place anything on record to show that he was not employed in any particular project of the respondent but, in fact, was employed on permanent basis in their office or at site without their being any nature of temporary construction project. Having regard to the provisions contained in Section 2(oo)(bb) of the Industrial Disputes Act, the petitioner cannot claim any protection under Section 25F of the Industrial Disputes Act as the same will have no application, wherein, it is specifically held that the termination of workman was as a result of non renewal of 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. Section 2(oo)(bb) of the Industrial Disputes Act reads as under:

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

(a) voluntary retirement of the workman; or

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

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

Counsel for the respondent has relied upon the following judgments in support of his case.

(4) (2006) III SCC Page 81-85

(6) (1997) II SCC 521

In Municipal Council, Samrala v. Raj Kumar reported in (2006) 3 Supreme Court Cases 81, the Supreme Court has held that the termination of service of a workman who was 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;

(iii) the employment came to an end simultaneously with the termination of the scheme or project and consistently with the terms of the contract; and

(iv) the workman ought to have been apprised or made aware of the above said terms by the employer at the commencement of employment.

8. The legislative intent to introduce Sub clause (bb) by an amendment in the year 1984 was to take out this particular class of employment who are on contract basis under any project or for some specified period from the rigour of Section 25F of the Industrial Disputes Act. It purports to exclude the following from the ambit of definition of retrenchment: (i) the termination of the service of a workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned, on its expiry; or (ii) the termination of the contract of employment in terms of a stipulation contained in the contract of employment, in that behalf. The first part relates to a termination of the service of a workman as a result of a non-renewal of the contract of employment between the employer and the workman concerned, on its expiry. The second part refers to 'such contract' being terminated under a stipulation in that behalf, contained therein. The expression 'such contract', used in the second part, refers to the 'contract of employment between the employer and the workman', mentioned in the first part. Therefore, if there is a stipulation in the 'contract of employment between the employer and the workman', providing the mode and manner of the termination of service, such termination of service has now specifically been excluded from the definition of 'retrenchment', by this sub-clause. The cases contemplated under both the parts, therefore, will not be 'retrenchment'. Conversely, a case not falling within either of the parts of this sub-clause, will be 'retrenchment', falling within the main part of the definition. In another recent decision titled as National Small Industries Corporation Ltd. v. V. Lakshminarayanan, the Supreme Court has held that on account of his contractual tenure, his case would come within the exception of Section 2(oo)(bb) of the Industrial Disputes Act and in such a case, the provisions of Section 25F of the said Act would have no application. The judgment relied upon by counsel for the petitioner reported in 1998(78) FLR 857 titled as H.B. Vinobha v. The M.D. Hindustan Photo Films (Mad. H.C.) is not applicable in the facts and circumstances of the present case.

9. As a result of above discussion, I do not find any substance or force in the arguments advanced by the counsel for the petitioner. There is no infirmity in the award passed by the Tribunal. From the impugned Award I have observed that the management had offered Rs. 5660/- to the petitioner workman at the expiry of the term of his employment and this amount as per the respondent management was offered not on account of any retrenchment compensation, but just as an abundant caution during the conciliation proceedings. In the impugned Award the Tribunal has given the directions to the respondent management to pay the said amount to the claimant workman. The award in the present case was passed on 22nd June, 1999 and the said offer of paying Rs. 5660/- was made even much prior to the passing of the said Award. Since the said offer was made voluntarily by the respondent management, therefore, I enhance the same to a sum of Rs. 15,000/- due to lapse of such a long period, which amount shall be paid by the respondent management to the petitioner workman within two weeks from the date of this order. On merits I do not find any infirmity or illegality in the Award passed by the Tribunal. The writ petition is, accordingly, dismissed.

10. Rule discharged.