Orissa High Court
Laxmikanta Bhoi And Others vs Presiding Officer on 11 December, 2023
Author: Arindam Sinha
Bench: Arindam Sinha
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.41737 of 2021
Laxmikanta Bhoi and others ......... Petitioners
Mr. S.P. Jena, Advocate
-Versus-
Presiding Officer, Labour Court,
Bhubaneswar and others ......... Opposite Parties
Ms. Suman Pattanaik,
Additional Government Advocate
CORAM:
JUSTICE ARINDAM SINHA
JUSTICE SIBO SANKAR MISHRA
ORDER
11.12.2023
Order No.
06. 1. Petitioners are the workmen, who have challenged award dated 23rd
February, 2021. Mr. Jena, learned advocate appears on behalf of petitioners
and Ms. Pattanaik, learned advocate, Additional Government Advocate for
State (management).
2. Mr. Jena submits, operational guidelines for Mobile Veterinary Unit
(MVU) in Odisha is under Annexure-1. He draws attention to procedure
for engagement of Veterinary Surgeon and Livestock Inspector for MVUs.
The procedure also provides for engagement of attendants, petitioners
having been engaged as such. He submits, his clients were retrenched.
Impugned award dated 23rd February, 2021 is required to be interfered
with. Relied upon procedure is reproduced below.
"Procedure for engagement of Veterinary Surgeon and
Livestock Inspector for MVU
1. The CDVOs will invite applications for engagement of
VAS/LI Attendant through display in the office Notice Board of
CDVO/SDVO/BDO/Collectorate/other important offices for
wide publication."
3. Ms. Pattanaik points out from the engagement communication that
petitioners had been engaged in outsourcing basis. Fact is there was no
employer employee relationship between first party management nos. 1, 2
and 3 and petitioners as found in impugned award. Impugned award dated
23rd February, 2021 contains finding that petitioners cannot be said to have
been retrenched as the situation falls within the exception under section 2
(oo) in Industrial Disputes Act, 1947. It appears, the labour Court was
referring to exception (bb). She submits, State has taken over the project
and decided to outsource procurement of driver-cum-attendant, on the
earlier contract for providing service having been discontinued.
4. We reproduce below a passage from impugned award.
"On the own admission of the workmen that they were engaged under
a project/scheme, it can be safely held that the so called termination
of service would not amount to retrenchment so as to grant any relief
under the provisions of the Act. The refusal/ termination of service of
the workmen as alleged, squarely falls within the exception provided
U/s. 2(oo) of the Act. In view of the discussion made above, the
workmen are not entitled to any relief."
The labour Court did not specify the exception. Ms. Pattanaik submits, it is
exception (bb).
5. Ms. Pattanaik hands over memo of date with copy served disclosing,
interalia, agreement dated 20th December, 2011 between the Government
and the contractor. She demonstrates that the agreement was valid for one
year and extendable. She reiterates, by impugned award there was finding
of engagement by contract, such contract being of limited period and
having had expired.
6. In reply Mr. Jena relies on view taken by a learned single Judge in
the High Court of Judicature, Punjab and Haryana in Balbir Singh v.
Kurukshetra Central Co-operative Bank Ltd. (Civil Writ Petition
no.778 of 1988 disposed of by judgment dated 18th January, 1989). He
relies on paragraph 7. We extract and reproduce a passage therefrom.
"7. ....... No doubt, the intention of the Parliament in enacting Cl.
(bb) was to exclude certain categories of workers from the term of
retrenchment but there is nothing in this clause which allows an outlet
to unscrupulous employers to shunt out workers in the garb of non-
renewal of their contract even when the work subsists. This clause as
a whole has to be construed strictly in favour of the workman as far as
possible as to ensure that the Act is implemented in letter and spirit. If
the termination is meant to exploit an employee or to increase the
bargaining power of the employer, then it has to be excluded from the
ambit of Cl. (bb) and the definition of term "retrenchment" has to be
given full meaning. The contractual clause enshrined in Cl. (bb)
cannot be resorted to frustrate the claim of the employee against his
uncalled for retrenchment or for denying other benefits. It cannot be
so interpreted as to enable an employer to resort to the policy of hire
and fire and to confer unguided power on the employer to renew or
not to renew the contract irrespective of circumstances in which it was
entered into or ignore the nature and extent of work for which he was
employed."
7. Balbir Singh (supra), in our view, is not applicable. There is no
dispute that the engagement was through contractor. The contractor had
entered into agreement, disclosed by the memo. It was clear stipulation in
the agreement that it would be valid for one year and extendable. As such,
it was not renewed on the Central project having come to an end and the
State having taken up the work. Furthermore, State as employer is entitled
to consolidate its resources in requiring the scope of work to be modified to
call for engagement of driver-cum-attendant. Petitioners are only
attendants. In the circumstances, this Court finds no reason to interfere
with impugned award.
8. The writ petition is dismissed. Interim order passed earlier is
vacated.
(Arindam Sinha)
Judge
Judge
Location: High Court of Orissa, Cuttack.
Date: 11-Dec-2023 19:25:51
