Shri Mool Chand vs Municipal Corporation Delhi
2009 Latest Caselaw 571 Del

     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       W.P. ( C) 5342/2004

                    Judgment delivered on: February 17,2009

Shri Mool Chand                                ...... Petitioner

                            Through: Mr.Rashmi B. Singh, Advocate

                        versus

Municipal Corporation Delhi              ....... Respondent

                            Through: Mr. Usha Saxena, Advocate

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1.     Whether the Reporters of local papers may
       be allowed to see the judgment?                             Yes

2.     To be referred to Reporter or not?                          Yes

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


KAILASH GAMBHIR, J. (Oral)

1. By way of this writ petition filed under Article 226 of

the Constitution of India the petitioner seeks to challenge the

impugned award whereby the Labour Court rejected the claim of

the petitioner for his reinstatement and further entitlement to

the back wages.

2. Brief facts of the case for deciding the present writ

petition are as under:-

The petitioner was employed as a Chowkidar with

respondent No.1 on 11.6.1996 and worked Continuously upto

2.7.1997 and his services were terminated by respondent No.1

vide order dated 3.7.1997. The petitioner raised an industrial

dispute and upon reference from Secretary, Labour Department

an award was passed by the Labour Court on 4.12.2002.

Aggrieved with the said award present petition has been

preferred by the petitioner.

3. Counsel appearing for the petitioner submits that the

petitioner was appointed on the post of Chowkidar on Muster

Roll basis on 11.6.1996 and his last drawn salary was Rs.1677/-

per month. Counsel further submits that the petitioner/workman

has not been paid his salary since 1.12.1996 and when he

requested for the payment of his salary he was threatened by the

Junior Engineer, Shri I.K. Srivastav that in case he raised the

demand of payment of salary his services would be terminated.

Counsel for the petitioner further submits that the petitioner had

worked for a period of 240 days preceding the date of his

termination but his services were illegally terminated on

31.7.1997 without adhering to the provisions of Section 25 F of

the I.D. Act. Counsel further submits that before the Tribunal it

was amply proved that the petitioner had worked for 240 days

preceding the date of his termination which fact was also duly

admitted by the Management. Counsel for the petitioner has

referred to para 9 of the impugned award to contend that Mr.

D.S. Chhabra, Executive Engineer (MW-1) in his cross-

examination duly admitted that in the year 1996-1997 the

petitioner/workman had worked for 197 and 152 days

respectively. Even the other witness produced by the

respondent/Management Mr. I.K. Srivastava (MW-2) also

deposed that the workman was engaged 15 times vide periodical

sanctions, preceding the date of his termination. Counsel for

the petitioner thus states that there was no dispute so far as the

deployment of the petitioner for 240 days is concerned, however,

the Tribunal rejected the claim of the petitioner on the ground

that the respondent had engaged the services of the petitioner

for specified period and once the specific period was over, the

respondent under sub-clause (bb) of section 2 (oo) of the Act was

well within its right to terminate the services of the

petitioner/workman. The contention of the counsel for the

petitioner is that for invoking sub-clause (bb) of section 2 (oo) of

the I.D. Act the respondent has to take a categorical stand

disclosing the employment of the petitioner in a particular

project and for a particular period. No such averment was made

by the respondent in their written statement to the statement of

claim filed by the petitioner and nor even in the counter affidavit

filed by the respondent to the present writ petition and

therefore, the counsel for the petitioner contends that the

findings of the Tribunal holding that the case of the present

petitioner/workman was covered under sub-clause (bb) of

Section 2 (oo) of the Act is perverse and illegal. In support of

her argument counsel for the petitioner has also placed reliance

on the judgment of Punjab & Haryana High Court in 1996

LLR 259 Bhikku Ram Vs. Presiding Officer, Industrial

Tribunal cum Labour Court, Rohtak and Madhya Pradesh

High Court reported in 1998 (79) FLR 850 Executive

Engineer, CPWD Vs. Madhukar Purushottam K. and

another.

4. Refuting the said submissions of the counsel for the

petitioner, counsel for the respondent submits that the petitioner

had failed to prove his continuous employment with the

respondent for a period of 240 days preceding the date of his

termination and therefore the petitioner was not entitled for any

protection under Section 25 F of the Industrial Disputes Act.

Counsel for the respondent further submits that respondent has

taken a categorical stand in their written statement as well as in

the counter affidavit clearly stating that the petitioner was

engaged on temporary basis for short durations from time to

time depending upon the sanction granted by the competent

authority which in the present case lastly expired on 31.7.1997.

Counsel for the respondent further submits that since the

further sanction was not granted by the competent authority to

the petitioner thereby the respondent was well within its rights

to take a decision to dispense with the services of the petitioner.

Counsel thus urges that the Tribunal had rightly invoked sub-

clause (bb) of section 2(oo) of the I.D. Act in the facts of the

present case and the order of the Ld. Labour Court cannot be

held to be either illegal or perverse.

5. I have heard learned counsel for the parties and

perused the record.

6. In view of various judgments of the Apex court and this

Court, it is now well settled that irrespective of whether a workman

was a daily wager or not, once he has completed 240 days of

continuous service, the termination of his services without complying

with the provisions of Section 25F of the Act, is illegal. It was held by

a division bench of this court in the case of Delhi Cantonment Board

v. Central Government Industrial Tribunal and Ors., reported as

129(2006) DLT 610(DB), that in industrial law there is no

difference between permanent and temporary employees as in service

law and that as long as a person is a „workman‟ within the meaning of

section 2(s) of the Act and had put in 240 days of service in the year

prior to the date of termination of his service, it is mandatory to

comply with the provisions of Section 25 F of the Act. The judgment

rendered by a single judge of this court in the case of Management

of Horticulture Department of Delhi Administration

Department of Delhi Administration Vs. Trilok Chand and Anr.,

reported in 82(1999) DLT 747 in this regard is also noteworthy,

relevant extract of which is being reproduced as under:

"Notwithstanding the aforesaid position in law Mr. Anil Grover, learned counsel appearing on behalf of the petitioner argued that respondent is not to be treated as workman and is not entitled to the benefit of the provision of Section 25-F of the Act and in support of his submission he tried to draw sustenance from another judgment of Supreme Court in the case of Himanshu Kumar Vidyarthi and others Vs. State of Bihar and others reported in ..... In this case, decided by a Division Bench, no doubt certain observations were made by the Supreme Court which give the impression that temporary working of daily wages ... would not be considered to be re- trenched under the Act. However, a close look would show that the case was mainly decided on the ground that the concerned department namely, Cooperative Training Institute, Deogarh was not to be treated as ``industry'` within the meaning of Section 2(j) of the Act and further in this case Supreme Court did not take into consideration the earlier case decided by it holding to the contrary and as noticed above. Not only this even in the following subsequent judgments, Supreme Court has taken the view that provision of Section 25-F would be applicable even in a case of daily rated workman. These cases are: 1. Rattan Singh Vs. Union of India (1997) 11 SCC 396 2. Municipal Corporation of Delhi Vs. Praveen Kumar Jain. (1998) 9 SCC 468 3. Samistha Dubey Vs. Etawah reported in 1999 LLR 460 (SC)."

7. It is evident from a study of the law laid down in the

abovementioned judgments that once the requirement of 240 days of

continuous service is fulfilled, the workman cannot be retrenched

without complying with the provisions of Section 25F of the Act.

8. In the instant case, since the petitioner was a workmen

under the Industrial Disputes Act and it has come in the cross

examination of Sh. D.S. Chabra, Executive Engineer, who deposed as

MW1 that in the years 1996 and 1997 the petitioner had worked for

197 and 152 days, respectively, which clearly meant that the

petitioner completed his 240 days, as mandated by law, in preceding

12 months prior to his termination of service. Further, Mr. I.K.

Srivastava, MW 2 also deposed that the workman was engaged from

time to time vide periodical sanctions, which were 15 in number,

preceding the date of his termination, this clearly proves that the

petitioner was in continuous service. Therefore, Section 25F of the

Act had to be complied with if he had put in 240 days of service in the

year prior to the date of termination of service. Petitioner had

admittedly put in over 240 days of service. Hence the termination of

his service was illegal, since compliance of Section 25F is a condition

precedent to the termination of service in view of the decisions of the

Hon‟ble Apex Court in State of Bombay v. Hospital Mazdur Sabha

1960 I LLJ 251 SC, National Iron & Steel Co.Ltd. v. State of

West Bengal 1967 II LLJ 23 SC, Mohanlal v. Management of

Bharat Electronics Ltd. 1981 LIC 806 (815) SC, Avon Services

(Production Agencies) Ltd. v. Industrial Tribunal 1979 I LLJ I

SC. etc.

9. A perusal of the impugned award shows that the Tribunal

committed error in not properly perusing the record and in reaching

to the conclusion that the petitioner failed to prove 240 days of his

service in the year prior to the date of termination of service.

Therefore, the award is modified in this regard.

10 . The contention of the respondent that the termination of

the respondent‟s services did not come within the purview of the term

"retrenchment" as contained in Section 2(oo)(bb) of the Industrial

Disputes Act, is also without any merit. At this juncture it would be

worthwhile to reproduce Section 2 (oo) of the ID Act, which is 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 superannuating 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-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; or

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

11 . The definition of "retrenchment" was introduced in the

Act by Act 43 of 1953 with effect from 24-10-1953. Clause (bb) was

inserted in the definition by Act 49 of 1984 with effect from 18-8-

1984. The definition is conclusive in the sense that "retrenchment"

has been defined to mean the termination of the service of a workman

by the employer for any reason whatsoever. If the termination was by

way of punishment as a consequence of disciplinary action, it would

not amount to "retrenchment". Originally, there were two other

exceptions, namely,

(i) voluntary retirement of the workman and

(ii) retirement of the workman on reaching the age of superannuation if the contract of employment contained a stipulation to that effect.

12 . By the Amending Act 49 of 1984, two further exceptions

were introduced in the definition by inserting clause (bb) with effect

from 18-8-1984; one was the termination of service on the ground of

continued ill-health of the workman and the other was termination of

service on account of non-renewal of the contract of employment on

the expiry of the term of that contract. If such contract of employment

contained a stipulation for termination of service and the services of

the workman are terminated in accordance with that stipulation, such

termination, according to clause (bb), would also not amount to

"retrenchment".

13 . What the clause (bb) of Section 2 (oo), therefore, means is

that there should have been a contract of employment for a fixed term

between the employer and the workman, containing a stipulation that

the services could be terminated even before the expiry of the period

of contract. If such contract, on the expiry of its original period, is not

renewed and the services are terminated as a consequence of that

period, it would not amount to "retrenchment". Similarly, if the

services are terminated even before the expiry of the period of

contract but in pursuance of a stipulation contained in that contract

that the services could be so terminated, then in that case also, the

termination would not amount to "retrenchment".

14 . In the instant case, nothing has come on record so as to

prove the ingredients of Section 2 (oo) (bb) of the ID Act. There is

nothing on record to show that the petitioner was engaged for a

particular time span or duration or for a particular project or work by

the respondent. It has been the consistent view of this court that 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 averred is that the petitioner

was engaged as a casual worker or daily- wager 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 petitioner does not fall in

exception (bb) and thus, it amounted to retrenchment.

15 . Be that as it may, it has also come on record in the

deposition of Sh. I.K. Srivastava, Junior Engineer, who deposed as

MW 2 that Sh. Hori Lal has been engaged in place of the petitioner

and he is still continuing at the said place. Clearly, the post against

which the petitioner was working was of a regular nature and

vacancies still existed and his services had been illegally terminated

without following the established position of law thus, clearly, such an

appointment had been made with the object of depriving the

petitioner of the status and privilege of a permanent employee.

16 . In view of the above discussion, the petition is allowed and

the award passed by the Labour court is set aside with the directions

to the respondent to reinstate the petitioner with 50% backwages

within four weeks from today failing which the interest @ 9% pa shall

also be payable to the petitioner.

Petition is allowed with the above directions.

February 17, 2009                        KAILASH GAMBHIR, J.
pkv