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TMI Blog2014 (11) TMI 386X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Rs. 2500/- per month and he remained in employment till 31.03.2002. The respondent-Municipal Council, Pathankot had resorted to unfair labour practice and engaged him on contract basis. There was no break in his service and inspite of a policy of regularisation dated 23.01.2001, which provided that persons having 3 years of service were entitled to be regularised, his services were terminated without issuing any notice, show cause notice, enquiry or without making the payment of retrenchment compensation and this act of respondent No.3 amounted to unfair labour practice and in violation of the terms of Section 25-F of the Act and that new appointments were also made through backdoor entry and juniors were also working and accordingly, violation of Sections 25-G & 25-H of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Labour Court took into consideration the statement of the workman and MW1, Desh Bandhu, Sectional Officer (M) Municipal Council and came to the conclusion that the post of the Keyman was created by the Director, Local Government, Punjab and the regular appointment was not made by any competent authority. To regulate the work, applications (Exhibit R2) had been taken by the Executive Officer and persons were appointed against these posts as a time-gap arrangement and for a specific period. Agreements had been executed inter se whereby the petitioner-workman was to be paid Rs. 1200/- per month. The said agreements were signed by the Executive Officer, Municipal Officer and Sectional Officer. Acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b) 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 therefore, not exercised its jurisdiction. There is no denying the fact that the work of Keyman is a work of perennial nature and the petitioner-workmen were working from 1993 onwards in the present case and had worked for 8 ½ years. The table appended with the present judgment as Schedule 'A' would show that how the workmen worked for a period ranging from 4 ½ years to 8 ½ years were unceremoniously shunted out by the Municipal Council on the pretext and on the ground that they were contractual employees and were bound by the terms of the contract and therefore, the Council is protected under Section 2(oo)(bb). The case of the workman was specific regarding unfair labour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce 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 Rs. 1200/- per month and a sum of Rs. 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. If any sort of loss/damage is occurred to the sluice value of the Municipal Council by you during the duty then recovery for the loss whatsoever occurred will be made from your monthly salary as per recovery rules. This contract will be valid for the period of one year from the date of appointment and it will stand automatically rescinded after the lapse of period of one year. If you are found to be negligent while performing duty then contract can be terminated without prior intimation. The minimum qualification should be Middle pass and candidates should be physically fit to perform duty. This contract will be valid for a period of one year and will be considered as rescinded on 15.09.96." 14. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nably 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 years with the primary object of depriving them the status of permanent employees inasmuch as giving of this status would have required the employer to pay the workmen at a rate higher than the one fixed under the Minimum Wages Act. We can think of no other possible object as, it may be remembered that the Pachgaon Parwati Scheme was intended to cater to the recreational and educational aspirations also of the populace, which are not ephemeral objects, but par excellence permanent. We would say the same about environment-pollution-care work of Ahmedanager, whose need is on increase because of increase in pollution. Permanency is thus writ large on the face of both the types of work. If, even in such projects, persons are kept in job ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a specified work and the job which was being performed by the employee is no more required. Only a bona fide exercise of right by an employer to terminate the service in terms of the contract of employment or for non renewal will be covered by the Clause (bb). If the Court finds that the exercise of rights by the employer is not bona fide or the employer has adopted the methodology of fixed term employment as a conduit or mechanism to frustrate the rights of the workman, the termination of the service will not be covered by the exception contained in Clause (bb). Instead the action of the employer will have to be treated as an act of unfair labour practice as specified in the Fifth Schedule of the Act. The various judgments rendered b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Cooperative Land Development Bank Ltd. v. The Presiding Officer, Labour Court, Rohtak and another, 2001 (3) S.C.T. 799, CWP No.11644 of 1988, decided on 13.2.2001 in somewhat similar circumstances found that the workman in the said case by virtue of the various orders of appointment of 89 days had completed 240 days of the service in the last calendar year or immediately preceding the date of his termination. Therefore, there was no legal reason shown as to why he would not be continued thereafter. It was held that the termination of an employee by such orders amounts to unfair labour practice. The ratio of the Division Bench judgment of this Court in Bhikku Ram v. The Presiding Officer, 1998 (1) RSJ 703, was followed and the termination of servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 appointment was made 4 times for a specific period. Thus, the said judgment would also not be applicable to the facts and circumstances of the present case. 21. In Devinder Singh Vs. Municipal Council, Sanaur (2011) 6 SCC 584, the Apex Court examined the provisions of Section 2 (oo)(bb) and held that the definition of term 'retrenchment' is very comprehensive and the source of employment, the method of recruitment, the terms and conditions of employment/contract of service, the quantum of wages/pay and the mode of payment are not at all relevant for deciding whether or not a person is a workman within the meaning of Section 2(s) and contractual employees are not excluded from the said definition. Thus, even contractual emplo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yment 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 employed in the police service as an officer or other employee of a prison or who is employed mainly in managerial or administrative capacity or who is employed in a supervisory capacity and is drawing specified wages per mensem or exercises mainly managerial functions does not fall within the definition of the term `workman'. 13. The source of employment, the method of recruitment, the terms and conditions of employment/contract of service, the quantum of wages/pay and the mode of payment are not at all relevant for deciding whether or not a person is a workman within the meaning of Section 2(s) of the Act. 14. It is apposite to observe that the definition of workman also does not make any distinction between full time and part time e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Acquisition Officer, the question of compliance of the said provisions by the said authority would also not arise. The High Court, therefore, in our opinion, committed a serious error in refusing to interfere in the matter. When existence of the relationship of employer and employee is disputed, the same was required to be determined in presence of all the parties who are interested in the subject matter of reference. The Special Land Acquisition Officer was not a party to the reference. The learned Presiding Officer, Labour Court, UP, Lucknow neither went into the question as regards the nature of duties required to be performed by the first respondent and also other relevant factors, namely, who had issued the offer of appointment; who used to superv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 those cases that judicial discretion exercised by the Labour Court was disturbed by the High Court on wrong assumption that the initial employment of the employee was illegal. As noted above, with regard to the wrongful termination of a daily wager, who had worked for a short period, this Court in long line of cases has held that the award of reinstatement cannot be said to be proper relief and rather award of compensation in such cases would be in consonance with the demand of justice. Before exercising its judicial discretion, the Labour Court has to keep in view all relevant factors, including the mode and manner of appointment, nature of employment, length of service, the ground on which the termination has been set aside and the delay in raising th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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