Delhi High Court

New Delhi Municipal Council vs Deepak Wadhwa on 22 January, 2013

Author: V. K. Jain

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

%                       Judgment reserved on        :14.01. 2013
                   Judgment pronounced on:          :21.01.2013

+     LPA 63/2012 and CM No.1722/2012(stay)

      NEW DELHI MUNICIPAL COUNCIL                       ..... Appellant
                            Through :   Mr. Rajesh Mahajan with Mr.
                                        Piyush Gaur and Mr. Arun
                                        Bhardwaj , Adv.
                   versus

      DEEPAK WADHWA                                       .... Respondent
                            Through :   Mr. Anuj Aggarwal, Adv. for
                                        Workman.
      CORAM:
       HON'BLE THE CHIEF JUSTICE
       HON'BLE MR. JUSTICE V.K. JAIN


V.K. JAIN, J.

1. On 14th September, 1992, the respondent was appointed as a Beldar

with the appellant on muster roll, for a period of ninety days. Vide

subsequent order dated 18th September, 1992, he was appointed in the

same capacity, again for a period of ninety days. It was stated in the

order dated 18th September, 1992 that his appointment will not confer any

right for regular appointment and will automatically come to an end on

the expiry of aforesaid period or could be terminated earlier, at any time,

without assigning any notice or without reason. Vide order dated 16 th

December, 1992, earlier appointment was extended till 7th March, 1993

on the existing terms and conditions. Vide order dated 4th February,

1993, the respondent was appointed as Attorney on a consolidated salary

of Rs.1,784/- per month upto 28th July, 1993 only for a period of six

months. Vide order dated 2nd August, 1994, which was the last

appointment order issued to him, the respondent was appointed as

Attorney on contract basis with effect from 6th June, 1994 on a

consolidated salary of Rs.1,730/- per month and was posted in Law

Department against one of the two posts meant for ST candidates, for a

period of six months or till regular selection of ST category candidate,

whichever was to be earlier. The services of the respondent were

dispensed with vide order dated 8th August, 1994 with immediate effect,

it would be pertinent to note here that, according to the appellant, in a

meeting held on 20th July, 1994, the Selection Sub-Committee had

selected two candidates to fill up the two posts meant for ST category

candidates.

2. The respondent raised an industrial dispute which was referred to

the Labour Court for adjudication. The plea taken by the appellant before

the Labour Court was that since a regular ST category candidate had been

selected, it was decided to terminate the services of the respondent in

terms of the appointment letter issued to him on 2nd August, 1994. The

Labour Court vide order dated 29th November, 2000 held that dispensing

with the services of the respondent was not justified and ordered his

reinstatement. Being aggrieved from the award of the Labour Court, the

appellant filed a writ petition which came to be dismissed while

impugned judgment dated 19th December, 2011. Being dissatisfied, the

appellant is before us by way of this appeal.

3. The Labour Court noted that the appellant had produced only six

documents none of which disclosed selection of a ST category candidate

for the post against which the respondent was appointed.

4. The question as to whether a ST candidate had actually been

selected on 20th July, 1994 as claimed by the appellant or not is purely a

question of fact, which cannot be gone into either in the writ petition was

in the appeal arising out of the order passed in the writ petition. The onus

was upon the appellant to prove, by leading evidence before the Labour

Court that it had actually selected a ST candidate in the meeting held on

20th July, 1994. We note that before the Labour Court, the respondent

had disputed the selection of a ST candidate. It was, therefore, incumbent

upon the respondent to lead appropriate evidence to prove the alleged

selection. It is not open to this Court to go into this disputed question of

fact and record a finding in this regard, in these proceedings. We

however, note that the minutes of the meeting of the selection sub-

committee held on 20th July, 1994, which the appellant has filed before

this Court were either not filed or not proved before the Labour Court

because this document is not one of the six documents which the

appellant proved before the Labour Court. We, therefore, proceed on the

factual position that the appellant did not select a ST candidate on 20th

July, 1994, as is claimed in the appeal.

5. Section 2(oo) (bb) of the Industrial Disptues Act excludes from the

scope of retrenchment, termination of the service of a workman as a

result of non-renewal of the contract of employment between him and the

employer on its expiry or of such contract being terminated under the

stipulation made in that behalf. Therefore, the question which comes up

for consideration is as to whether the services of the respondent were

terminated either on account of appellant's not renewing the contract of

his employment or on account of any term stipulated in the order of his

appointment. Admittedly, the employment of the respondent in terms of

the order dated 2nd August, 1994 would have continued till 5.9.1994, the

same being for a period of six months with effect from 6.6.1994, unless a

regular ST Category candidate was to be selected in the meanwhile. Since

the services of the respondents were terminated vide order dated

8.8.1994, with immediate effect, obviously this was not a case of non-

renewal of the term of appointment of the respondent.

The case of the appellant si that the services of the respondent were

dispensed with on account of regular selection of an ST candidate in the

meeting held on 20.7.1994. The order, whereby the services of the

respondent were dispensed with does not indicate that his services were

being terminated on account of selection of a ST candidate to occupy the

post against which he was employed. As noted earlier, the appellant did

not prove, before the Labour Court, that it had selected a ST candidate on

20.7.1994. Thus, neither the order dated 8.8.1994 disclosed selection of a

regular ST candidate nor was such a selection proved during the

proceedings before the Labour Court. Therefore, the case of the

respondent did not fall within the purview of Section 2(oo)(bb) of the

Act.

6. In Devinder Singh vs. Municipal Council, Sanaur [(2011) 6 SCC

584, the appellant before the Supreme Court was engaged by the

respondent with effect from 1.8.1994 and his services were discontinued

with effect from 30.09.1996 without giving him the notice and

compensation as per requirement of Section 25F of the Act. On an

industrial dispute being raised by him, the respondent claimed that the

appellant was engaged on contract basis and his services were terminated

because the approval to the resolution for his employment was not given

by the government. The Labour Court held that no evidence had been

produced by the respondent to prove that it was a case of termination of

service in accordance with the terms of the contract of employment. The

order passed by the Labour Court for reinstatement of the appellant was

set aside by the High Court. The Supreme Court noted that the appellant

had been engaged initially for a period of six months on contract basis

and the said engagement was renewed three times, the last engagement

being on 1.5.1996 for a period of six months, but his engagement was

discontinued with effect from 30.9.1996. The Court acknowledged that

the engagement of the appellant was not preceded by any advertisement

and consideration of the competing claim of other eligible persons. As

regards the plea of the respondent that the action taken by it was covered

under Section 2(oo)(bb), the Apex Court was of the view that the same

had rightly not been entertained by the Labour Court because no material

was produced by the respondent to show that the engagement of the

appellant was discontinued by relying upon the terms and conditions of

the employment.

7. In Hindustan Steel Ltd. v. The Presiding Officer, Labour, Orissa

and Ors. (1976) 4 SCC 222, the respondents before the Supreme Court

were appointed initially for a period of three years each. The appellants,

pursuant to a policy to "streamline the organization and to effect

economies wherever possible", chose not to renew the contracts of

service. No order terminating their services was passed since the

appellants took the option that the termination was automatic on the

expiry of the contractual period of service. On an industrial dispute being

raised by the respondents, the Labour Court directed their reinstatement

with back wages. The writ petition filed by the appellant having been

dismissed by the High Court, the matter was taken to Supreme Court by

way of an appeal. The contention of the appellants was that the services

of the respondents having come to an end by efflux of time, such

termination did not fall within the definition of retrenchment in Section 2

(oo) of the Industrial Disputes Act. In the appeal filed by the

management, the Supreme Court observed that the proviso to Section 2

(oo) of the Act would have been quite unnecessary if retrenchment, as

defined in said provision, was intended not to include service of

respondent by efflux of time in terms of an agreement between the

parties.

In State Bank of India v. N.Sundara Money (1976) 1 SCC 822,

the Supreme Court analyzing Section 2(oo) of the Act, inter alia, held as

under:-

"Termination. For any reason whatsoever' are the key words. Whatever the reason, every termination spells retrenchment. So the sole question is has the employee's service been terminated ?... A termination takes place where a term expires either by the active step of the master or the running out of the stipulated term .... Termination embraces not merely the act of termination by the employer, but the fact of termination howsoever produced.

.... An employer terminates employment not merely by passing an order as the service runs. He can do so by writing a composite order, one giving employment and the other

ending or limiting it. A separate, subsequent determination is not the sole magnetic pull of the provision. A preemptive provision to terminate is struck by the same vice as the post- appointment termination."

8. In the case before us, since neither the order whereby the services

of the respondent were dispensed with so indicated nor was it proved

before the Labour Court that the services of the respondent were

discontinued on account of selection of a regular ST candidate, it cannot

be said that the termination of the respondent was based upon the terms

of his employment. The above referred decision of the Supreme Court,

therefore, squarely applies to the facts of the case before us.

9. Since, disengagement of the respondent was not covered under

Section 2(oo)(bb) of the Act, the termination of the services of the

respondent being in violation of the mandatory provisions of Section 25F

of the Act, was rightly quashed by the Labour Court. We find no merits in

the appeal and the same is hereby dismissed. We, however, make it clear