Jaipur Development Authority vs Shyam Lal Soni

Veerender Singh Siradhana, J.�In the instant intra-court appeal, the appellant/Jaipur Development Authority, Jaipur (hereinafter referred to as the ''JDA'', for short), has assailed the legality, validity and correctness of the judgment and order dated 10th January, 2006, passed by the learned Single Judge on the writ application of the respondent/petitioner wherein termination of service of the respondent/petitioner has been quashed and set aside for violation of Section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as the ''Act of 1947'', for short). The learned Single Judge has allowed reinstatement and all consequential benefits notionally as extended to one Kamal Kaushik, who is identically situated and his case was adjudicated upon vide order dated 29th November, 1991.

Briefly, the indispensable essential material facts necessary for appreciation of the controversy raised are: that the respondent/petitioner was initially engaged by the JDA on the post of Electrical Supervisor on work-charged basis in December, 1983 and worked for 3 months. The respondent/petitioner was again engaged in January, 1985 and worked upto May 1985. Again, the engagement was made on 15th September, 1987 on a consolidated amount of Rs. 750/- per month, which continued upto 24th August, 1988, when the termination was given effect to. One Kamal Kaushik, who too was engaged along with the respondent/petitioner, his services were also dispensed with by the appellant/JDA; approached this Court by way of S.B. Civil Writ Petition Number 1810 of 1989. Vide judgment and order dated 29th November, 1991, the termination of service of Kamal Kaushik was held to be in violation of Section 25-F of the Act of 1947 and therefore, a direction for reinstatement with consequential benefits was ordered. However, in regard to the claim of back wages and arrears, the matter was left to be determined before the forum under the Act of 1947. Intra-Court Appeal Number 168 of 1992, against the judgment and order dated 29th November, 1991; in case of Kamal Kaushik, was dismissed as infructuous on 13th July, 2001. Therefore, the respondent/petitioner prayed for same benefit and order as in the case of Kamal Kaushik. The prayer has been granted vide impugned judgment and order dated 10th January, 2006.

The learned counsel for the appellant/JDA reiterating the pleaded facts strenuously argued that the respondent/petitioner was engaged on contract basis and for a fixed period as is evident from the order dated 15th December, 1987 (Annexure-3) and order dated 25th February, 1988 (Annexure-4). The learned counsel would further submit that but for the period as detailed out in the order of appointment, the respondent/petitioner did not work during the intervening period. According to learned counsel for the appellant/JDA, the services of the respondent/petitioner stood terminated as per the terms and conditions, specifically stipulated in the order of appointment, which also detailed out the period of engagement on contract basis. The statement made by the learned counsel for the respondent/petitioner for having continuously worked with effect from 1983 to 1988, was emphatically denied in absence of any documentary evidence and in the face of orders of engagement for a specific period on contract basis with specific terms and conditions mentioned therein. The judgment and order dated 29th November, 1991 passed by this Court in the case of Kamal Kaushik is, per incuriam, since the plea of applicability of Section 2(oo)(bb) of the Act of 1947 was not raised, which excludes the applicability of the Act of 1947, to the cases where the termination of service of a workman is a result of 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. The learned counsel further contended that an illegality committed or a wrong order passed in one case, cannot be pleaded as a legally tenable plea for perpetuating an illegality. Moreover, such a plea cannot lay a foundation for an order contrary to law for compelling a public authority, even if an erroneous order passed by this Court in another case was complied with. The appellant/JDA cannot be precluded from challenging the order passed in the instant case at hand, on the ground that the identical issue decided in the case of another candidate was decided; though in ignorance of the mandate of Section 2(oo)(bb) of the Act of 1947. To reinforce the submissions put forth by the learned counsel for the appellant/JDA, reliance was placed on the opinion of the Hon''ble Supreme Court in the case of Madhya Pradesh Hasta Shilpa Vikas Nigam Ltd. Vs. Devendra Kumar Jain and Others, ; M. Venugopal Vs. The Divisional Manager, Life Insurance Corporation of India, Machilipatnam, Andhra Pradesh and another, and State of Rajasthan and others Vs. Rameshwar Lal Gahlot, .

Per contra, learned Senior Counsel, Mr. R.K. Mathur, assisted by Mr. Aditya Mathur, supporting the impugned judgment and order of the learned Single Judge emphasized that the issue has already been raised, considered and decided in the case of Kamal Kaushik, as is evident from the order dated 29th November, 1991, which has been followed by the learned Single Judge while dealing with the case of the respondent/petitioner. Learned counsel further stressed that the Special Appeal preferred by the JDA against the judgment and order dated 29th November, 1991 in the case of Kamal Kaushik, was dismissed as infructuous by the Division Bench and therefore, there is no reason to take a view different from the one earlier adopted in the similar case of Kamal Kaushik. According to learned Senior Counsel, the appellant/JDA having accepted the verdict of this Court in case of Kamal Kaushik, is estopped to raise plea of exclusion of application of the provisions of the Act of 1947. Further, equals must be treated equally. Since the case of the respondent/petitioner is not different from that of Kamal Kaushik, the appellant/JDA cannot be allowed to approbate and reprobate.

We have heard the learned counsel for the parties and with their assistance, perused the materials available on record.

Having regard to the nature of the controversy raised in the instant case at hand, it will be relevant to consider the text of Section 2(oo)(bb) of the Act of 1947, which reads thus:--

"2. Definitions.......

(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

(c) termination of the service of a workman on the ground of continued ill-health."

With effect from 1953, the definition of ''retrenchment'' was incorporated in the Act of 1947. With effect from 18th August, 1984, clause (bb) was incorporated. From a glance of the definition of ''retrenchment'', it is apparent that retrenchment is defined to mean the termination of the service of a workman by the employer for any reason whatsoever. However, if the termination of service was a consequence of punishment as a result of disciplinary action, the same would not fall within the ambit of ''retrenchment''. Two exceptions were admitted earlier to ''retrenchment'' i.e. (a) voluntary retirement of the workman and (b) retirement of workman on attaining the age of superannuation, if the contract of employment contained a stipulation to that effect. By incorporating clause (bb) with effect from 18th August, 1984, further two exceptions have been incorporated i.e. (a) where the termination of service is on the ground of continued ill health of the workman and (b) where the termination of service is a consequence of non-renewal of the contract of employment, on the expiry of the term stipulated in that contract. Thus, if the contract of the employment stipulated a clause for termination of the service and the termination of service is a consequence of the clause stipulated therein, such a termination, according to the exclusion clause (bb), would not be within the ambit of ''retrenchment'' as defined under the Act of 1947.

From a bare perusal of the order dated 25th February, 1988, it is apparent that the respondent/petitioner was engaged for a period of 6 months, as Electrical Supervisor, on contract basis. The order further stipulated the condition to the effect that the contract was purely temporary and could be terminated without any notice. Having regard to the meaning of the expression ''retrenchment'', as defined under Section 2(oo) of the Act of 1947 with the exception under clause (bb), there is no room for any doubt that if, the contract of employment stipulated a condition for termination of the service in the contract and the services are terminated as a consequence of the stipulation therein, such a termination, in the face of exception clause (bb), would not amount of ''retrenchment.

By now, it is well settled that an illegal or wrong order passed in one case, cannot lay foundation for perpetuation of an illegality. We are not impressed with the submissions of the learned Senior Counsel put forth to the effect that since the matter has attained finality in view of the adjudication in the case of Kamal Kaushik, where the Special Appeal was withdrawn by the appellant/JDA and therefore, the respondent/petitioner is entitled to the same benefit, and hence, the intra-court appeal deserves to be dismissed. It would be unjustifiable to raise such an argument for the reason that the Courts should not direct something, which is contrary to law. Further, it needs no reiteration that no person can claim any right on the basis of a judgment, which has been delivered de-hors the statutory rules. There cannot be any estoppel against law. Even assuming that Kamal Kaushik was similarly situated, the concept of equality clause carries a positive concept and cannot be invoked for perpetuation of an illegality.

For the reasons and discussions herein above, it is evident that the engagement of the respondent/petitioner was for a specific period of 6 months, and the period of engagement concluded on the expiry of 6 months as per the terms and conditions of the contract of service and therefore, in our considered view the termination of service, as a consequence of the stipulation to that effect in the contract, is not a ''retrenchment'' as defined under Section 2(oo)(bb) of the Act of 1947.

In the result, the intra-court appeal succeeds and is hereby allowed. The impugned judgment and order dated 10th January, 2006 passed by the learned Single Judge is hereby quashed and set aside. However, there shall be no order as to costs.