TMI Blog2014 (11) TMI 386X X X X Extracts X X X X X X X X Extracts X X X X ..... er or on the expiry of such contract being terminated under stipulation in that behalf, as contained in the said contract of employment, which has been examined time and again by this Court. It is not the case of the respondent-Council that there was any break in the service and it was only that the workmen were working on contract basis and even the request for regularisation had been made for all contractual employees by the Council which was rejected by the State Government on 24.08.2001. Thus, it would be clear that even proposal for regularising the services of the contractual employees was subject matter of consideration and the workman having completed 240 days were, thus, entitled for the benefit of the protective umbrella of Section 25-F and the mandatory provisions as laid down under it had to be followed before dispensing with the services of the workmen. Appointments were made in violation of the appointment letter and requirements had not been complied with and in such circumstances, reinstatement was not justified. In the present case, as noticed above, the job of the Keyman does not exist, as per the provisions of the Municipal Act but the respondent-Council had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S.Sandhawalia J. 1. This order shall dispose of 8 writ petitions, bearing CWP Nos.22369 of 2011, 13307, 13346, 13373, 16595, 16677, 16756 16788 of 2012, involving common questions of law and facts and the award dated 25.08.2011 (Annexure P6) is also common. However, to dictate orders, facts have been taken from CWP No.22369 of 2011 titled Natha Singh Vs. Presiding Officer, Industrial Tribunal-cum-Labour Court, Gurdaspur others. 2. Vide the award dated 25.08.2011, the Labour Court, Gurdaspur answered the references against the workmen and in favour of the respondents under the provisions of the Industrial Disputes Act, 1947 (for short, the 'Act'). The plea of the Municipal Council that the workmen were covered under Section 2 (oo)(bb) and it was a contractual appointment, was accepted and they were held not entitled to the relief of reinstatement. 3. A perusal of the record would go on to show that the workman pleaded that he was employed on 01.09.1993 as a Keyman (controlling the flow of water) which was regular and perennial nature of and he was drawing salary of ₹ 2500/- per month and he remained in employment till 31.03.2002. The respondent-Municipal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lea that he was in continuous employment from 01.09.1993 to 31.03.2002 and the job continued and the workman was appointed as per the rules after taking sanction and by virtue of resolution passed by the Municipal Council, Pathankot. The designation of the Keyman was not covered under Section 39 of the Punjab Municipal Act, 1911 as it was not in the cadre provided in Appendix 'A' to 'D'. No permission was required from the Government. Reliance was placed upon CWP No.9146 of 2001 titled M.C.Dinanagar Vs. P.O., Labour Court others. The agreements produced by the Management, Exhibits R2 to R5 were fabricated and fraudulent as there was unfair labour practice which was not expected from a public body like the respondents as all the agreements were non-existent on the date of execution and were purchased much afterwards and got signed on the day when salary was being paid after interval of 5 to 6 months and they were signed undated along with the agreements which were shown and executed much prior to the purchase of the stamp paper. The respondents were acting as war slave, lords who were treating the workmen as slaves and it was unfair labour practice. 7. The Labou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rectors that the benefit of regularisation to employees employed on contractual basis could not be considered, as the policy pertained to work charge/daily wage and other category of employees. Similarly, vide letter dated 15.06.2007, it was decided that the services of the employees working on contractual basis were to be terminated and the exception was only regarding the staff working in the higher grade. 9. The question that, thus, arises for consideration is as to whether the petitioners were only contractual employees in view of the agreement that they had entered into and the benefit of Section 25-F of the Act would not be applicable to them and whether the provisions of Section 2(oo)(bb) of the Act would be attracted in the facts and circumstances of the present case. The second question that would arise in case the provisions of 2 (oo)(bb) are not applicable as to what would be the relief the workman would be entitled; whether the workman would be entitled for reinstatement or compensation. 10. The facts in the present case goes on to show that how the State has resorted to unfair labour practice which the Labour Court, unfortunately, has failed to appreciate and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dure under Section 25-H had been followed. It was, in such circumstances, the appeals of the Management were allowed, which are not the facts in the present case. 13. There is no denying to the fact that the workman was engaged on 01.09.1993 and as per Exhibit R2, he submitted a fresh application whereby he was appointed for a period of one year from 16.09.1995 and thereafter, the agreement was got renewed whereby it was provided that the contract would be valid for a period of one year and would stand already rescinded after the lapse of one year. The agreement (Exhibit R3) reads as under: Today i.e. on 16.09.95 this agreement for the post of Keyman on contractual basis in the office of Executing Officer, Municipal Council, Pathankot has been effected as per following conditions:- You will have to perform duty for eight hours as fixed by the Municipal Corporation. You will be paid lump sum amount to the tune of ₹ 1200/- per month and a sum of ₹ 50/- per day will be deducted from your salary, if you are found absent from the duty and if you remain absent from your duty continuously for three days then the agreement effected will be treated as cancelled. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment, which has been examined time and again by this Court. 16. A three Judge Bench of the Apex Court in Chief Conservator of Forest Vs. Jagannath Maruti Kondhare (1996) 2 SCC 293 held that the appellants in that case were guilty of adopting unfair labour practice by employing the workman for 5 to 6 years and answered the question against the State, keeping in view the permanent nature of the job. The relevant observations read as under: 22. We have given our due thought to the aforesaid rival contentions and, according to us, the object of the State Act, inter alia, being prevention of certain unfair labour practices, the same would be thwarted or get frustrated if such a burden is placed on a workman which he cannot reasonably discharge. In our opinion, it would be permissible on facts of a particular case to draw the inference mentioned in the second part of the item, if badlis, casuals or temporaries are continued as such for years. We further state that the present was such a case inasmuch as from the materials on record we are satisfied that the 25 workmen who went to Industrial Court of Pune (and 15 to Industrial Court, Ahmednagar) had been kept as casuals for long ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xception clause. An important fact which is to be noticed in the present case is that the job which is performed by the employees continues to be in existence and the methodology of the fixed term employment which has been resorted to by the Municipal Council is only an attempt to frustrate the rights of the workman. Relevant observations from the above said judgment read as under: 35. From the above, it is clear that termination of service of a workman who has worked under an employer for 240 days in a period of twelve months preceding the dale of termination of service will ordinarily be decided as void if it is found that the employer has violated the provisions of Section 25-F (a) and (b). If the employer resists the claim of the workman and invokes Section 2(oo)(bb), burden lies on the employer to show that though the employee has worked for 240 days in twelve months prior to termination of his service, such termination of service cannot be treated as retrenchment because it is in accordance with the terms of the contract of employment or on account of non-renewal of the contract of employment. It has also to be shown by the employer that the workman had been employed for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hose service period was a little over a period of one year, was directed to be reinstated in service by the Labour Court. This Court upheld the said reinstatement and rejected the submission that the provisions of Section 2(oo)(bb) would be attracted and held that it was a case of retrenchment. Relevant observation read 9.After consideration of the matter, I find that the workman had been getting service on 89 days basis from time to time with intermittent notional breaks. He had continued in service on 89 days basis. Therefore, when the services were being extended from time to time, it cannot be said that it is a case where the service of the workman had been terminated as a result of non-renewal of contract of employment between the employer and the workman. The case in hand is one of retrenchment and, therefore, the provisions of Section 25 of the Act would apply. It is not in dispute that the respondentworkman has not been given any retrenchment compensation in terms of Section 25-F of the Act. He has admittedly been in service of the bank for more than 240 days in the last calendar year preceding the date of his termination. This Court in the case of Haryana State Cooperativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the petition and in the evidence wherein it has been stated that the agreements were got signed at the time of giving the salaries and the respondents had acted as war slave lords who had treated the workmen like slaves. The Sectional Officer has admitted in evidence that the job of Keyman is to regulate the flow of water through valves installed in pipes in particular areas daily and the job is of perennial nature. The job of the Keyman existed even after 31.02.2002. It has also been admitted that the workman was employed as per rules and the proceedings of Section 25-F have not been followed. 20. Similarly, in the case of Ajay Kumar (supra), this Court declined the benefit of reinstatement on the ground that the employee was appointed for a fixed term and was released on the expiry of the fixed term and therefore, the provisions of Section 2(oo)(bb) would come into effect. It was noticed that the appointment was from 1993 only and not on a regular basis. There was no averment regarding unfair labour practice and there were substantial breaks in service during the period of 3 years, of as many as 6 months at one point of time and 3 months at another point of time. The appoint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... speculating on possibilities, we may agree that retrenchment is no longer terra incognita but area covered by an expansive definition. It means to end, conclude, cease .................... The ratio of the aforementioned judgement was approved by the Constitution Bench in Punjab Land Development And Reclaimation Corporation Ltd., Chandigarh v. Presiding Officer Labour Court, Chandigarh (1990) 3 SCC 682. 12. Section 2(s) contains an exhaustive definition of the term `workman'. The definition takes within its ambit any person including an apprentice employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward and it is immaterial that the terms of employment are not reduced into writing. The definition also includes a person, who has been dismissed, discharged or retrenched in connection with an industrial dispute or as a consequence of such dispute or whose dismissal, discharge or retrenchment has led to that dispute. The last segment of the definition specifies certain exclusions. A person to whom the Air Force Act, 1950, or the Army Act, 1950, or the Navy Act, 1957, is applicable or who is employe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relating to acquisition of land in the courts of law. Although the appellant was providing for the funds for meeting the expenditure in relation to payment of wages etc. to the first respondent herein, evidently, the relationship between an employer and employee did not come into being between the appellant and the first respondent. It did not require the services of the appellant. The Special Land Acquisition Officer did. The offer of appointment was issued by the Special Land Acquisition Officer. First respondent was working under his supervision and control. His services were being taken by the Special Land Acquisition Officer for a particular purpose, namely, looking after the land acquisition cases. When the purpose for which the first respondent was appointed ceased to exist, his services were terminated. If there did not exist any relationship of employer and employee, the question of the appellant's fulfilling the obligations required in terms of the UP Industrial Disputes Act, namely, payment of retrenchment compensation or one month's pay in lieu of notice did not and could not arise. If the first respondent was a workman working under the Special Land Acquisitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... radiction that this Court has not held as an absolute proposition that in cases of wrongful dismissal, the dismissed employee is entitled to reinstatement in all situations. It has always been the view of this Court that there could be circumstance(s) in a case which may make it inexpedient to order reinstatement. Therefore, the normal rule that dismissed employee is entitled to reinstatement in cases of wrongful dismissal has been held to be not without exception. Insofar as wrongful termination of daily-rated workers is concerned, this Court has laid down that consequential relief would depend on host of factors, namely, manner and method of appointment, nature of employment and length of service. Where the length of engagement as daily wager has not been long, award of reinstatement should not follow and rather compensation should be directed to be paid. A distinction has been drawn between a daily wager and an employee holding the regular post for the purposes of consequential relief. xxxx xxxx xxxx 29. In our view, Harjinder Singh and Devinder Singh do not lay down the proposition that in all cases of wrongful termination, reinstatement must follow. This Court found in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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