General Manager vs Ramesh Kumar

G.S. Sandhawalia, J.—Challenge in the present writ petition is to the Award dated 07.11.2013 (Annexure P-6) whereby, the Labour Court, Panipat has directed reinstatement of the respondent-workman on a suitable post according to his medical report with continuity of service in accordance with Rules and 50% back wages from the date of demand notice i.e. 12.05.2009.

Counsel for the State has vehemently submitted that it was a contractual appointment of 89 days and he was found medically unfit to be regularized as per the terms of the contract and, therefore, the order directing reinstatement on a post other than a Driver would not be justified.

A perusal of the paper book would go on to show that vide letter dated 18.07.2003, the respondent-workman was given an offer for a contractual engagement as Driver for 89 days at a consolidated salary. As per clause 3, he was to produce a medical certificate of fitness on the date of joining from the Civil Surgeon of the District and the services were to be automatically terminated after the period of 89 days without any notice unless further extension was granted. As per Clause 6, his services could be dispensed with at any time without assigning any reason.

It is not a matter of dispute that the petitioner continued to work on these terms till 26.11.2008 and, therefore, it was beyond the period of contract as such and, therefore, the submission that the terms of Section 2(oo)(bb) of the Industrial Disputes Act, 1947 (in short ''the Act'') would be applicable is without any basis. It is settled principle of law that once the management resorts to such modes to avoid the provisions of the Act, it would amount to unfair labour practice.

A Division Bench of this Court in Bhikku Ram Vs. The Presiding Officer, Industrial Tribunal-cum-Labour Court, Rohtak 1998(1) RSJ 703 held that where an appointment had been initially made for a period of 89 days and continued for almost 3 years, when the service was discontinued, while placing reliance upon the judgment of the Apex Court in The State Bank of India Vs. Shri N. Sundara Money, held that the provisions of Section 25F would be attracted in such cases, keeping in view the fact that the Act is a beneficial piece of legislation. Reference was also made to the unfair labour practices u/s 2(ra) and which are specified in the 5th Schedule. Clause 10 of which further provides that where the employees are badlis, casual or temporary and to continue them in the same capacity for years together with the object of depriving them of the status and privileges of permanent workmen, would fall under the definition of unfair labour practice as defined u/s 25T of Chapter V-C. It was held that the exception provided under Clause (bb) has the effect of taking over the right which is vested in the workman and if the Court finds that the conditions are arbitrary and unreasonable and forced upon the workman, then the termination of service, covered u/s 2(oo)(bb), is liable to be rejected. It was, accordingly, held that the protection granted u/s 25F(a) & (b) could not be taken away by taking cover under the provisions of the said exception clause. An important fact which is to be noticed in the present case is that the job which is performed by the employee 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:

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 25F(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 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 by the different High Courts and the Supreme Court clearly bring out the principle that only a bona fide exercise of the powers by the employer in cases where the work is of specified nature or where the temporary employee is replaced by a regular employee the action of the employer will be upheld. In all other cases, the termination of service will be treated as retrenchment unless they are covered by other exceptions set out hereinabove.

Similarly in Simla Devi Vs. Presiding Officer, Labour Courts and Others, while placing reliance upon the case of Bhikhu Ram (supra), it was held by the Division Bench of this Court that the respondent had deliberately given breaks in service with a view to avoid compliance of the provisions of the Act as the workman was employed for a period of 1 year, as a part-time employee. She had been denied the relief on the ground that her services fell under the purview of Section 2(oo)(bb) of the Act. Reliance was also placed upon The Haryana State Co-operative Supply & Marketing Federation Ltd. Vs. State of Haryana 1995(4) RSJ 369.

Similarly, in President, Zila Parishad, Panipat Vs. Presiding Officer, Industrial Tribunal-cum-Labour Court, Panipat a Division Bench of this Court refused to interfere with the order of reinstatement on the ground that there were breaks of 2 days in the spell of appointments and filling up the posts on contract basis amounted to unfair labour practice. In The Haryana State Cooperative Land Development Bank Ltd. Vs. The Presiding Officer, Labour Court, Rohtak & another 2004(1) RSJ 631, a Clerk who was appointed on ad hoc basis for 89 days and whose 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 as under:

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 respondent-workman has not been given any retrenchment compensation in terms of Section 25F 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. Vs. Presiding Officer, Labour Court, Rohtak 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 service of the respondent was set aside.

The demand notice would show that it was the categorical case of the petitioner that his services were being taken not only as Driver but also as Conductor and attendant for inquiries and other jobs.

In the reply filed to the demand notice, the plea taken was that the contract was extended from time to time and the case of the workman was put up for regularization as per Service Rules for the grant of Driver Grade-II but due to the Orthopedic Surgeon''s Medical Report, he was not found fit to be appointed to the post of Driver.

On the matter being referred to the Labour Court, the case of the workman was that he had been not declared unfit for other light work and the termination was not justified. Keeping in view these facts, the Labour Court has directed reinstatement on some other suitable post after noticing that there was violation of the mandatory provisions of the Act, specially Section 25F. The statement of Dharamvir, Superintendent MW-1 was taken into consideration which proved the fact that the claim of the workman was that he had worked on other posts than the driver such as dug duty, yard duty, issuance of receipts and even posted at the enquiry center. His medical unfitness was only for the post of Driver and rather the case of the petitioner has been considered for regularization which is admitted by the State itself.

In such circumstances, termination without following the proper procedure was not justified and has rightly been found so by the Labour Court. The Labour Court has modulated the relief suitably by directing that reinstatement should be on a suitable post as per his medical report alongwith continuity of service. The equity has also been balanced by only granting back wages to the tune of 50% and that also from the date of demand notice i.e. 12.05.2009 on account of services rendered for more than 5 years.

It has time and again been held by the Apex Court that while exercising the powers of writ jurisdiction under Article 226 of the Constitution of India, this Court is to exercise its power only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice has taken place. The High Court will not convert itself into a Court of appeal and indulge, appreciate or evaluate evidence and correct errors in drawing inferences or correct errors of mere formal or technical character. The said principle was laid down in Surya Dev Rai Vs. Ram Chander Rai and Others, It is where the Tribunal has acted illegally in exercise of jurisdiction conferred on it and decides a question without giving an opportunity to be heard to the party affected by the order or where the procedure adopted in dealing with the dispute is opposed to the principles of natural justice, this Court would interfere. The error of law has to be apparent on the face of the record and it has to be manifestly clear that the conclusion of law recorded by the Tribunal is in misinterpretation of the relevant statutory provisions or in ignorance in regard of the same. Thus, what can be corrected is an error of law, which would be of such character which is apparent on the face of the record and if the statutory provision is capable of two constructions and one of it had been adopted by the Tribunal, it may not be desirable to correct the same by way of writ of certiorari.

In the present case, no such error of law or fact has been shown which would warrant interference by this Court while exercising jurisdiction under Article 226 of the Constitution of India. Accordingly, there is no scope for interference in the well reasoned order of Labour Court and the writ petition is dismissed in limine.