Ram Kishan vs Management Of M/S American ...
2009 Latest Caselaw 5290 Del

  IN THE HIGH COURT OF DELHI AT NEW DELHI


                               Reserved on : December 10, 2009
                               Decided on: December 18, 2009



                          LPA No. 511 of 2009

        RAM KISHAN                                       .... Appellant
                               Through: Mr. Sanjay Ghose, Advocate.


                      versus


        MANAGEMENT OF M/S AMERICAN EXPRESS BANKING
        CORPORATION & ANR.                  ..... Respondents
                    Through: Ms. Raavi Birbal and
                    Mr. Narender Kumar Sharma, Advocates for
                    R-1.
                    Mr. Atul Batra, Advocate for R-2.


        CORAM:
        HON'BLE THE CHIEF JUSTICE
        HON'BLE DR. JUSTICE S. MURALIDHAR


        1. Whether reporters of the local newspapers be allowed to see
           the judgment?                                           No

        2. To be referred to the Reporter or not?                     Yes

        3. Whether the judgment should be reported in the Digest? Yes



S. MURALIDHAR, J.

1. This appeal is directed against the judgment dated 27th August 2009

passed by the learned Single Judge dismissing Writ Petition (C) No.

3387-88 of 2006.

2. The Appellant was appointed with the Respondent No.1 American

Express Banking Corporation as a Cleaner for a fixed term of three

years from 15th October 1999 to 14th October 2002. The dispute

arising over the termination of the services of the Appellant at the end

of the contractual period was taken up for conciliation. The Assistant

Labour Court, Faridabad submitted a failure report on 30th September

2003. Thereafter by a communication dated 21st November 2003, the

Government of India in the Ministry of Labour informed the

Appellant that the Ministry did not consider the dispute fit for

adjudication for the following reason:

"Since the applicant was appointed for a fixed period of three years from 15.10.1999 to 14.10.2002 and these terms/conditions were accepted by the Complainant, hence, dispute has no merit to refer."

3. It appears that an attempt was made to have the said decision

reviewed. This was declined by an order dated 14th December 2005.

Aggrieved by the said two orders, the aforementioned writ petition

was filed by the Appellant in this Court.

4. According to the Appellant, his appointment for a period of three

years on contractual basis was in fact a camouflage since the work of

cleaning was of a perennial nature, the work was still available and in

fact the Respondent No.1 had employed more than ten workers for the

said work through a contractor. It was contended that the Government

could not decline to make the reference as there was a prima facie

dispute on the issue whether the termination was lawful. Respondent

No.1 countered the above submission by pointing out that the

termination of the services of the Appellant was not retrenchment

within the meaning of Section 2(oo) (bb) of the Industrial Disputes

Act, 1947 („ID Act‟) and, therefore, Section 25G and/or Section 25H

of the ID Act were not attracted. Further this was not even a case of

unfair labour practice under Clause 10 of Schedule 5 to the ID Act.

5. The learned Single Judge has, by the impugned order dated 27th

August 2009, held that the Central Government was justified in

declining to refer the dispute for adjudication as the termination of the

Appellant‟s services did not amount to retrenchment within the

meaning of the ID Act. Consequently, there was no industrial dispute

which was required to be referred to the Tribunal for adjudication.

6. It is submitted by Mr. Sanjay Ghose, learned counsel appearing for

the Appellant, that for the purposes of examining if an industrial

dispute should, in terms of Section 10 of the ID Act, be referred to a

Tribunal for adjudication, the Government had to be satisfied only as

to whether there was a prima facie case. It was not expected to

examine the merits of the case. Reference is made to the judgment of

the Supreme Court in S.M. Nilajkar v. Telecom District Manager,

Karnataka 2003 SCC (L&S) 380, Bombay Union of Journalists v.

State of Bombay [1964] 6 SCR 22 and Telco Convoy Drivers

Mazdoor Sangh v. State of Bihar (1989) 3 SCC 271. Reliance is also

placed on the judgments of this Court in Subhash Chand v. Govt. of

NCT 2005 III AD (DELHI) 206, Ganesh Kumar v. Union of India

2007 VII AD (DELHI) 700.

7. On the other hand, Ms. Raavi Birbal, learned counsel appearing for

the Respondent No.1 relies on the judgments in Punjab State

Electricity Board v. Sudesh Kumar Puri (2007) 2 SCC 428, Birla

VXL Ltd. v. State of Punjab (1998) 5 SCC 632, Escorts Limited v.

Presiding Officer (1997) 11 SCC 521 and M. Venugopal v. The

Divisional Manager, Life Insurance Corporation of India (1994) 2

SCC 323 to contend that the appointment of the Appellant was purely

contractual and, therefore, in terms of Section 2(oo)(bb) of the ID Act,

the termination of his services as a result of the non-renewal of the

contract fell outside the purview of retrenchment. It was further

submitted that there was no industrial dispute to be referred for

adjudication.

8. We have considered the submissions of learned counsel for the

parties. It must be noted at the outset that it is not in dispute that the

Appellant was appointed only on a contractual basis. The contention

on behalf of the Appellant that the contract was a camouflage since

the work was of a perennial nature is really not supported by any

material placed on record. However, the fact remains that the contract

of the Appellant was not renewed. Also it is not as if the Appellant

was employed as contract labour in which case a different set of

factors would have to be considered.

9. The question that arises is whether the Government was justified in

declining to refer the dispute for adjudication to the Tribunal. The law

in regard to the nature of the functions performed by the Government

under Section 10 ID Act is well settled. In Bombay Union of

Journalists, it was held that the Government should only consider

prima facie the merits of the dispute and take in to account "other

relevant considerations which would help it to decide whether making

a reference would be expedient or not." It was further pointed out that

if the dispute raised a question of law or disputed question of facts

"the Government should not purport to reach final conclusion because

these are matters which would normally be within the jurisdiction of

Industrial Tribunal." It was not as if that the Government has to

necessarily refer every dispute for adjudication to the Industrial

Tribunal. "The Government has to prima facie be satisfied that the

dispute in question partakes the character of an industrial dispute."

10. As far as the present case is concerned, there is no factual dispute

that the Appellant was appointed as a Cleaner on a contract basis for a

fixed period of three years. The contract was not renewed resulting in

the termination of his services at the end of the contract period. In our

considered view, the provisions of Clause (bb) of Section 2(oo) of the

ID Act stand attracted and the termination of the services of the

Appellant, as a result of non-renewal of the contract of employment

on its expiry, does not amount to retrenchment under Section 2(oo) of

the ID Act.

11. The decision in S.M. Nilajkar was in the context of employment

of casual workers and daily wagers in a project and the termination of

their services resulted from the project coming to an end. It was held

that all that had been proved by the employer was that the workmen

there were engaged as a casual worker in a project. It was held that

the onus was on the employer to show that sub-clause (bb) was

attracted for which the employer had to further show that the

workman had been apprised of the fact that the employment would

come to an end simultaneously with the termination or completion of

the project. Since the employer had failed to prove the above factor, it

was held that the termination of the services of the workman

amounted to retrenchment. We do not see how the above decision

helps the Appellant in the present case. Unlike the said case, the

Petitioner here was not a casual or daily-rated worker. It is not the

case of the Appellant that he was not informed by the employer

Respondent No.1 that the appointment was purely on a contractual

basis for a fixed term and that the employment would come to an end

at the end of the period of contract. Secondly, the decision in S.M.

Nilajkar was not concerned with the failure of the Government to

make a reference of the dispute for adjudication under Section 10 ID

Act. Thirdly, the said case involved engagement of casual workers in

a project without any indication of the period of employment whereas

in the present case admittedly the appointment of the Appellant was

on a contract basis for a fixed term.

12. The decision in Telco Convoy Drivers Mazdoor Sangh is also

distinguishable on facts. The question there was whether the Convoy

Drivers were workmen of Telco. It was held that in opining that the

Convoy Drivers were workmen, the Government had adjudicated the

dispute itself whereas that dispute ought to have been adjudicated by

the Tribunal. It is not clear from the judgment in the Telco Convoy

Drivers Mazdoor Sangh whether the Convoy Drivers were in fact

employed on a contract basis for a fixed period. It, therefore, cannot

be a precedent for the proposition that irrespective of the nature of

employment, the Government will always be precluded from

satisfying itself that prima facie the person seeking reference of the

dispute falls outside the purview of Section 2(oo)(bb) of the ID Act.

Moreover, in the said judgment there was no occasion for the Court to

consider the applicability of Section 2(oo)(bb) ID Act. Consequently,

we do not find how the aforementioned judgment also comes to the

aid of the Appellant. The decisions of this Court in Subhash Chand

and Ganesh Kumar also appear to have turned on the facts of those

cases and are distinguishable in their application with the present case.

13. A perusal of the judgment of the Supreme Court in Punjab State

Electricity Board shows that Section 2(oo)(bb) of the ID Act would

clearly apply to cases where the termination of services was brought

about by the expiry of the period of contract. It was pointed out in the

said decision that the criteria that would apply to determine if the

engagement of contract labour was a sham or a device to camouflage

a continuous employment would not apply to a case where the

appointment is on a contract basis. Likewise, in Escorts Ltd. also it

was held that the termination of the services at the expiry of a fixed

period of appointment did not attract Section 25F and Section 25G of

the ID Act.

14. In our considered view, as far as the present case is concerned, the

Government was justified in coming to the conclusion that the dispute

arising out of the termination of services of the Appellant as a result

of the expiry of the period of contract under which he was appointed,

was not required to be referred for adjudication by the Industrial

Tribunal.

15. We concur with both the reasoning and the conclusion arrived at

by the learned Single Judge in the impugned judgment.

Consequently, the appeal is dismissed with no order as to costs.

S. MURALIDHAR, J

CHIEF JUSTICE DECEMBER 18, 2009 dn