Chhitar Mal Meena vs The Judge, Labour Court and Others

Veerender Singh Siradhana, J.—The petitioner, in the instant writ application has assailed the legality and validity of the award dated 20th April, 2012, by the Labour Court-1, Jaipur, while answering the reference made by the appropriate government, upholding the action of the respondent-employer in terminating of the employment of the petitioner/workman vide order dated 1st April, 2002.

Briefly, the indispensable skeletal material facts essential for appreciation the controversy raised in the instant writ application needs to be first noticed. The petitioner was initially engaged as ''Plumber'' w.e.f. 1st January, 1995 and discharged his duties with sincerity and to the utmost satisfaction of the employer until termination of his employment, contrary to the mandate of statutory provisions of the Industrial Disputes Act, 1947 (hereinafter referred as to ''Rules of 1947'', for short), as well as Industrial Dispute (Central) Rules, 1958, on 1st April, 2002. It is pleaded case of the petitioner that initial engagement of the petitioner was extended from time to time and by the time his employment was terminated he had completed more than 240 days.

SBCWP No. 1611/2004 (Chhitar Mal Meena Vs. State of Raj.& Ors.), preferred by the petitioner was dismissed on 25th November, 2005, for availability of alternative remedy under the provisions of Act of 1947, which was availed by the petitioner-workman and as a consequence, the State Government vide its communication dated 13th December, 2007, made a reference to the Labour Court.

The petitioner-workman filed his statement of claim, which was responded by the respondent-employer. The parties tendered their evidence. The Labour Court-1, Jaipur, taking into consideration pleaded facts and materials available on record as well as the evidence tendered by the parties decided the reference vide impugned award dated 20th April, 2012, in negative holding the action of the respondent-employer as legal and valid, in terminating the employment of the petitioner-workman vide order dated 1st April, 2002.

In support of his submissions reliance has been placed on the opinion of the Division Bench of this Court in the case of Ram Chandra Vs. Union of India and Others, (2001) 90 FLR 55 : (2001) 2 LLJ 431 : (2001) 1 WLC 606 : (2001) 1 WLN 385 ; Madhya Pradesh Bank Karmachari Sangh Vs. Syndicate Bank and Another, (1997) 3 LLJ 536 and State of Rajasthan and Ors. Vs. Rameshwar Lal Gahalot'' Civil Appeal No. 12056/1995, decided on 14th December, 1995.

I have heard the learned counsel for the petitioner and with his assistance perused the materials available on record.

Learned counsel for the petitioner, reiterating the pleaded facts and grounds of the writ application and the stand before the Labour Court in the statement of claim, has strenuously argued that the contractual employment while engaging the petitioner-workman for working as ''Plumber'' w.e.f. 1st January, 1995, and renewing the contract of employment time to time up to 31st March, 2002, was a colourable exercise of power only with the object to deprive the petitioner of his rights accruing under the provisions of Act of 1947. According to the learned counsel for the petitioner-workman discharged his duties as a regular employee and was paid salary on monthly basis. Neither the respondent-employer was a contractor nor had any license for the purpose, rather the petitioner-workman worked as a regular employee and not through any contractor, and therefore, the termination of employment is bad in the eye of law.

The fact that the services of the petitioner-workman were governed by the terms and conditions of the contract, arrived at between the petitioner-workman and the respondent-employer, reduced to writing and brought on record as exhibit M-1, to M-4, is not in dispute.

It is also no disputed that the contractual employment initially entered into between the parties, was renewed from time to time until 31st March, 2002. From the findings arrived at by the Labour Court, it is also reflected that the documentary evidence brought on record substantiated the fact of the engagement of the petitioner/workman on contract basis with the terms and conditions stipulated therein, reduced to writing, for the entire period up to 31st March, 2002. The petitioner-workman also admitted his signatures on the contract of engagement.

However, during the course of arguments, the signatures on the contract engagement were denied. There was no cross-examination on this aspect and no evidence was tendered on behalf of the petitioner-workman, in support thereof. The respondent-employer substantiated the fact of engagement of the petitioner-workman on contract in reply to the statement of claim by placing on record documentary evidence establishing the fact that the contract was entered into between the parties for every year.

The Labour Court on due appreciation and analysis of the evidence and the materials available on record also recorded a finding to the effect that there was no discrepancy in the signatures as stated on behalf of the petitioner-workman. The last contract of engagement was for the period w.e.f. 1st April, 2001 and 31st March, 2002.

Further, it is also an admitted fact that the employment of the petitioner-workman was terminated w.e.f. 1st April, 2002, which further corroborated the fact that the termination of the service of the petitioner-workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry. The contract being one under the section 2(oo)(bb) of the Act of 1947, an exception to ''retrenchment'' and the termination of employment being a consequence thereof the matter was not within the ambit of the Act of 1947.

At this juncture, it will be gainful to consider the text of Section 2(oo)(bb) which reads thus:--

"[(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 superannuation 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-renewal 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]"

In the case of State of Rajasthan and Ors. Vs. (supra), the Hon''ble Supreme Court dealt with the issue while interpreting the mandate of clause (bb) of Section 2(oo), in the back drop of the facts wherein the respondents (Mr. Rameshwar Lal Gahlot) was appointed for a period of three months or till the regularly selected candidate assumes office. Mr. Rameshwar Lal Gahlot was appointed of January, 1988 and his appointment came to be 19th November, 1988. In the writ application filed, the learned Single Judge, directed for fresh appointment of the workman for he having completed more than 240 days while holding the termination of his employment in violation of Section 25F of the Act of 1947. On a intra- Court appeal, the Division Bench interfered with the latter part of the order and directed reinstatement with back wages. The Special Leave to Appeal preferred by the State of Rajasthan and Ors., was allowed in the light of the judgment of the Supreme Court in the case of M. Venugopal Vs. The Divisional Manager, Life Insurance Corporation of India, Machilipatnam, Andhra Pradesh and another, AIR 1994 SC 1343 : (1994) 68 FLR 443 : (1994) 1 JT 281 : (1994) 1 LLJ 597 : (1994) 1 SCALE 264 : (1994) 2 SCC 323 : (1994) 1 SCR 433 : (1994) 3 SLJ 206 : (1994) 2 UJ 73 : (1994) WritLR 548 .

In the case of Rameshwar Lal Gahalot (supra) their lordship''s held that when the appointment is made for a fixed period unless there is finding that power under clause (bb) of Section 2(oo) was misused or vitiated by its malafide exercise; it cannot be held that the termination is illegal.

In the instant case at hand, there is no finding to effect that the provisions of clause (bb) of Section 2(oo) were misused or the order was vitiated for malafide exercise of the power. Neither facts have been pleaded to that effect nor any factual foundation has been laid to draw any inference to that effect.

In the case of Madhya Pradesh Bank Karamchari Sangh Vs. Syndicate petitioner and Anr. (supra), the issue was dealt with in the back drop of the facts that the workman continued in the employment of the bank as casual labour on daily wages basis in 1985, 1986 and 1987 and completed 240 days, and the termination of employment was in violation of mandate of Section 25F of the Act of 1947, whereas in the instant case at hand, the contract of engagement between the parties was reduced to writing on the terms and conditions stipulated therein. The contract of employment was renewed for every year and lastly, it was made for a period w.e.f. 1st April, 2001 to 31st March, 2002.

In the case of Ramchandra (supra), the Division Bench of this Court at the principle bench examined the issue in the back drop of the facts that the ''Commanding Officer'' (respondent No. 3) requested the Employment Exchange, Jodhpur, by his letter dated 17th June, 1994, to sponsor the names for the post of casual labour (mazdoor). A proforma for notification of vacancies was also enclosed with the letter, pay and allowances for the said post was also detailed out therein as Rs. 750/- per month with usual allowances.

The petitioners therein were selected for the said post and they were informed accordingly. The initial appointment was fixed for a period of 89 days, the petitioners had also undergone the medical test in the Military Hospital, Jodhpur, and were appointed as they were found fit for appointment to the said post. The services were terminated on 16th October, 1994, and were again appointed on the very next day i.e. 17th October, 1994, for 89 days. The practice was followed in the subsequent years until termination of the employment vide order dated 17th July, 1995 w.e.f.18th July, 1995. Thus, it is apparent of the face on record that the facts of the instant case at hand, are entirely different than those of the case referred to and relied upon.

In the case of Secretary, State of Karnataka and Others Vs. Umadevi and Others, AIR 2006 SC 1806 : (2006) 6 CompLJ 1 : (2006) 4 JT 420 : (2006) 2 LLJ 722 : (2006) 4 SCALE 197 : (2006) 4 SCC 1 : (2006) 3 SLJ 1 : (2006) AIRSCW 1991 : (2006) 3 Supreme 415 , the Hon''ble Apex Court of the land has held in unequivocal terms that though regular appointment in accordance with the constitutional scheme for public employment must be the rule but there is nothing in the constitutional scheme, which prohibits the Union or State Governments or their instrumentalities from engaging persons temporarily on daily wages in spite of the constitutional scheme governing for the employee, without following to required procedure, to meet the needs of the situation. Once the right of the government or instrumentalists is recognized.

In view of the evidence and material on record, it is evident that there was a contract of service between the parties. The terms and conditions of the contract were reduced to writing and argued upon. Termination of employment of the petitioner was a consequence of non-renewal of the contract and did not amount to retrenchment. In the singular facts and circumstances of the case as well as in view of materials on record, the conclusions arrived at by the Court below cannot be faulted.

For the reasons and discussions hereinabove, the writ petition is devoid of any substance in lacks in merit. The impugned award dated 20th April, 2012, passed by the Labour Court-1, Jaipur, suffers with no illegality calling for any interference in exercise of its jurisdiction.

Consequently, the writ petition, is hereby dismissed.

No order as to costs.