Iftikar Ahmad Gauri vs Municipal Council Ambah

S.K. Dubey, J.

The Petitioner, a daily wages workman engaged from 11-10-1985,asdriverfor Fire Brigade of Municipal Council, Ambah, has approached this Court in writ Jurisdiction, for quashing of order of termination of his services from 24-2-88 vide order of same date (Annexure P/6) as non-est, being in violation of Section 25-F of the Industrial Disputes Act, 1947 (for short ''the Act'').

The Municipal Council, Ambah and the Administrator, the Respondents No. 1 and 2, have contested the petition on the grounds, inter alia, that the Petitioner was appointed on muster-daily wages in contingency as the State Government did not create any post of driver for Fire Brigade; the Petitioner was appointed from time to time for 89 days; according to exigencies as per appointment order (Annexure R/1, R/2, R/3, R/4 and R/6. The State Government vide Circular No. 2218/16/C-M/18-1-1987 dated 27-1-1987 after the sanction of the post, ordered vide Annexure R/7 that till the quota of Scheduled Castes and Scheduled Tribes is not filled up, no appointment from General Category on the vacant posts in the Municipality be made. Therefore, on receipt of sanction of creation of two posts of driver, the Municipal Council advertised the posts vide Annexure R/12 dated 9-12-1987 and appointed vide Annexure R/13, Ramdayal s/o Kishanlal and Ramnath s/o Tikarara on probation for a period of two years. It was contended that the appointment of the Petitioner was made by the Respondent No. 1 who had no authority to create any post in the Municipality, such appointments were invalid, which do not give any right to the post. Further contract of employments of the Petitioner was for a stipulated period, and the last appointment having not renewed, termination could not be said to be retrenchment in view of Sub-clause (bb) of Section 2 (oo) of the Act.

The Petitioner filed a rejoinder and contended that the Petitioner has worked as driver from 11-10-1985 to 24-2-1988, i e., for a period of two years and four months by the order of appointments of 89 days or even by verbal orders made by Respondents No. 1 and 2; the Petitioner brought the Fire Brigade vehicle manufactured at Mathura; the Respondents have not produced the record of attendance, and salary paid to the Petitioner, more denial of rendering of continuous service entitling the Petitioner for the benefits of Section 5-F, will not disentitle to the declaration and benefits of service rendered by him. To this rejoinder no additional return was filed. From Annexure R/4, R/5 and R/6, it is evident that the appointment of Petitioner expiring on 15-9-1987 was renewed; the Petitioner was continued. On expiry of the extended period of 26-11-1987, the Petitioner was again appointed for 89 days from 28-11-1987, thereafter the services of the Petitioner were discontinued on the expiry of the period stipulated vide Annexure P/6. The averc-ment of the Petitioner of working from 9-12-1985, by giving appointments of 89 days till his discontinuation was not denied, which is evident from paras 1 and 3 of the return, It was also not denied in the return that the Petitioner has not rendered continuous service of 240 days preceding to retrenchment.

The question which arises for consideration is whether the Respondents can escape liability of avoiding the statutory compliance by taking shelter of clause(bb) of Section 2 (oo) of the Act (as amended by Act No. 49 of 1984 and because the appointments given were invalid as were without following the procedure as laid down in M. P. Municipalities Act, 1961 and Rules framed thereunder for recruitment etc.

Section 2 (oo) which defines "retrenchment" quoted in expense-

(oo) "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, other-wise 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 (c) termination of the service of a workmen on the ground of continued ill-health.

Shri J. S. L. Sinha, counsel for the Respondents, placing reliance on a Division Bench decision of Gujarat High Court in case of J. J. Shrimali, 1989 Lab. I. C. 689, contended that the appointment because of exigencies and requirement of work on a contract would fall within the exception Clause (bb). In our opinion, the case is distinguishable and is not applicable on facts of the present case, as in that the workman was employed by the State government to supervise the relief work during famine and drought undertaken by the Government to provide the much needed relief to scarcity affected people living in affected areas. In that context it was observed in para 11:

A relief work has, therefore, to be viewed differently from the ordinary activity of the State when it undertakes projects such as construction or maintanance of roads, dams, etc. with a view to serving the community at large. In such cases, the paramount intention is not to provide relief to people hit by the wrath of nature but to serve the community at large. That is why Gajendragadkar J., in The State of Bombay and Others Vs. The Hospital Mazdoor Sabha and Others, case observed that "it is the character of the activity which decided the question as to whether the activity in question attracts the provision of S. 2 (j)." In the above special facts and circumstances of the case and having regard to the avowed purpose and object of the relief the undertakings, specially its character, it is defficult to hold that the undertakings attract the difinition of ''industry'' in S. 2 (j) of the Act. In our view, the test laid down by the Supreme Court in Bangalore Water Supply and Sewerage Board 1978 Lab. I.C. 467 case is not satisfied.

It was next contended by Shri Sinha that the appointment could not have been given without following the procedure laid down in the Rules for appointing the servants of the Municipal Council and, therefore, the order of termination was valid. Reliance was placed on two decisions of the apex Court in Ravindra Kumar Misra Vs. U.P. State Handloom Corpn. Ltd. and Another, and Iramuddin Ahmed AIR 1988 SC 22 (sic)5.

While, considering a complaint of statutory violation of Section 25-F, the question whether the termination is bonafide and in accordance with service rules, and therefore, it cannot be held to be illegal and invalid is not germane, if it is found that prerequisite for a valid retrenchment having not been satisfied, the workman would be entitled to relief. See Sant Raj and Another Vs. O.P. Singla and Another,

Even, in cases of invalid appointments, it has to be examined in the light of Section 25-F of the Act; it cannot be contended that since the appointment of the Petitioner was not valid, in violation of rules, it does not amount to retrenchment. The definition of "retrenchment" as given in the Act is wide enough and comprehensive to include all typed so terminations of service unless the termination falls within any of the excepted categories mentioned therein. An invalid appointment is not one of the exceptions. Therefore, termination not falling under any of the exclusory clause of Section 2 (oo) would amount to clear retrenchment, and for such termination pre-requisites of S. 25-F are necessary. A Division Bench of Rajasthan High Court in case of Prabjiudayal(sic) 1991 Lab. I. C. 944, has taken the same view. An unreported decision rendered in Municipal Council, Khuniyadhana v. Deo Prakash M. P. No. 538/1991, (G.) decided on 18-4-1991, by this Court is also in the same line.

Now, it has to be examined, whether the termination of the service of the Petitioner falls within the exception contained in Clause (bb) of Section 25-F. Recently, this Court in Suresh and Ors. v. Cantonment Board, Morar, Gwalior M. P. No. 837/1991 (G.) decided on 25-10-1991, had an occasion to consider the purpose of Clause (bb) of S. 2 (oo) which is one of the exceptions to the main section. It was observed therein that it is settled rule of interpretation that exception is intended to restrain the enacted clause to particular case; therefore, it has to be interpreted narrowly; it cannot be given meanings which may nullify or curtail the ambit of the principal clause. The intension of the parliament in enacting Clause (bb) was to exclude certain categories of workers from the definition of the term "retrenchment" but there is nothing in this clause which allows as outlet to an employer to shunt out workers in the garb of non-renewal of their contract of the period specified in the contract has come to an end, even when the work subsists. Therefore, Section 2 (oo) has to be read as a whole and is to be construed sirictly as far as possible to ensure that ID Act is implemented in letter and spirit to avoid exploitation of workmen under the garb of contractual clause. The exception contained in Clause (bb) is limited to these cases where the work itself is of temporary nature and is over, in that circumstances, employing a workman for a period stipulated can he said to be bonafide and genuine.

Shri H. N. Upadhyay, learned Counsel for the Petitioner, placing reliance on a Single Bench dicision of Andhra Pradesh High Court in R. Sree-nivas v. Labour Court Hyderabad 1990 LIC 174, contended that main part of Section 2 (oo) speaks of termination ''for any reason'' as amounting to retrenchment, except those expressly included in the section. In the absence of clear intention, the first part of Clause (bb) cannot be interpreted to take the services of a casual labourer on daily wages. Per se termination of casual labour on daily wages is clearly outside the first part of Clause (bb) of S. 2 (oo) and was never intended to be excluded from the definition of "retrenchment". The ''contract of employment'' contemplates therein is referable to contracts other than engagement as casual labour on daily wages. Any other view would reduce the content of the mainpart of S. 2 (oo) to such a state of shrinkage which the legislature would never have contemplated, which in common parlance "retrenchment" given as impression of termination for want of work, the Act has given a very wide definition of retrenchment by including terminations "for any reason whatsoever", (except the limited categories falling under Clauses (a), (b) which are not attributable to acts of the employer). But if Clause (bb) is not restricted there will be little scope for preserving and maintaining a substantial part of the width of the main part of S. 2 (oo).

This contention, in our opinion, has got a force. The Respondents on daily wages on muster in contingency, according to the exigencies and requirement of work. It cannot be disputed that the work of driver for Fire Brigade of the Municipal Council was not a regular work nor it can be as after the sanction of the post from the State Government not only one, two incumbents were appointed. Therefore, even if the work of the Petitioner is not considered breaks of few days on periodical contracts cannot be interpreted to frustrate the claim of the workman for retrenchment or for denying the other benefits under the garb of Clause (bb), as observed by us in Suresh v. Cantonment Board, Morar, Owalior M. P. No. 837/1991 (G.), decided on 24-10-1991.

The contention that the Petitioner has not rendered continuous service of 240 days preceding to retrenchment has also no force. As the Petitioner came with a specific case of continuous service from 11-10-1985, though, some orders were not placed on record, on denial by the Respondents, a rejoinder was filed, but, no additional return was filed nor attendance sheets or pay sheets were produced, which were in possession of the Respondents to negative the contention of the Petitioner. Thus necessarily an inference has to be drawn that Petitioner''s case is true. See H.D. Singh Vs. Reserve Bank of India and Others,

The next contention of the Respondents that posts having filled up by candidates of the reserved category, need not be dealt with, as the two incumbents have not been impleaded as party to the petition, though this Court in Anil Kumar v. Nagar Palika, Banmore M P. No. 559/1990 (G.), decided on placing reliance on Chakradhar Paswan Vs. State of Bihar and Ors, has taken the view that there cannot be cent per cent reservation of posts by candidates of reserved categories.

In any case, this would not frustrate the claim of the Petitioner, nor the question of hardship would arise to the Respondents. The law is settled that once it is found that the termination is unjustified for non-compliance of Section 25-F, it is for the Court to consider what relief such workman is entitled to. Ordinarily, if a workman has been improperly and illegally retrenched, he is entitled to claim reinstatement. The fact that in the meanwhile, the employer has engaged other workman would not necessarily defeat the claim for reinstatement of the retrenched workman, nor can the fact that protracted litigation in regard to the dispute has inevitably meant delay, defeat such a claim for reinstatement. See Swadesamitran Limited, Madras Vs. Their Workmen, and The Punjab National Bank Ltd. Vs. Its Workmen,

Therefore, in our opinion, the Petitioner a ''workman'' falling u/s 2 (s) of the Act: having completed more than 240 days of service proceeding to the date of retrenchment, and as the prerequisite to Section 25-F of the Act have not been complied with by the Respondents, has made out a case for quashing of the order of termination.

In the result, the petition is allowed with costs. The order (Annexure P/6) is quashed The Petitioner shall be deemed to be in service continuously from the date of termination with all ancillary benefits except back wages. As we do not make any direction in respect of back wages, because it is disputed by the Respondents that the Petitioner was not gainfully employed which requires an enquiry. Therefore, the Petitioner, if so advised, may resort to legal proceedings u/s 33-C (2) of the Act before the Labour, where the disputed question of gainful employment from the date of termination till date will be decided.

Counsel''s fee Rs. 300/- if already certified.