Panipat Thermal Power Project Station vs State of Haryana and Others

N.K. Sodhi, J.—This petition under Article 226 of the Constitution is directed against the award dated February 8, 1993 passed by the Labour Court, Rohtak whereby the order terminating the services of Govind-respondent (for short, the workman) was set aside and he was held entitled to reinstatement with continuity of service but without back wages.

Facts giving rise to this petition which are not in dispute may first be noticed.

By an order dated March 20, 1989 the work man was given appointment as a Pharmacist against a regular post in the pay scale of Rs. 1400-2600-plus usual allowances payable by the Haryana State Electricity Board (hereinafter called the Board). The appointment was purely temporary for a period not exceeding three months during which period his services could be terminated at any time without notice. On the expiry of three months, the period of his appointment along with some others was extended by another three months on a request made by him in this regard. The condition stipulated in the order extending the appointment reads as under:--

"It, however, be understood that the services of the above named officials will be terminable even from an earlier date without notice and also in case regular incumbents are appointed by the Board in their place. Extension will not confer upon them any right to claim absorption on regular basis in the Board."

In the meantime, the Board advertised the posts of Pharmacists for being filled up on regular basis. The workman along with many others applied for the same: All the applicants were called for interview on June 17, 1989. The workman was not found fit for appointment as a regular Pharmacist whereas one Shri Sushil Kumar who was also working on temporary lad hoc basis was Selected for regular appointment. On another request made by the workman for further extension of his appointment, the same was granted for another three months with a stipulation that his services could be terminated even earlier than three months on the Joining df regular incumbents who had since been selected by the selection committee. In March. 1990 the Board decided not to grant any further extension to the workman and some others who were working on temporary/at/ hoc basis. The workman then filed CWP 3200 of 1990 in this Court seeking regularisation of his services in view of the Division Bench judgment of this Court in Piara Singh v. State of Haryana 1989 Lab IC 807. This petition was disposed of on March 14, 1990 with a direction that the workman should make a representation on which the competent authority would pass an order within six months thereof and it was further directed that status quo regarding service of the petitioner would be maintained till the representation was disposed of; The writ petition was disposed of without issuing any notice to the respondents therein. In compliance with the orders passed by this Court the representation filed by the workman was considered and rejected on September 8, 1990 and he was allowed to continue in service till then. Thereafter he raised an industrial dispute by serving a demand notice u/s 2A of the Industrial Disputes Act, 1947 (referred to hereinafter as the Act), This dispute was referred for adjudication to the Labour Court, Rohtak. After recording evidence of the parties, the Labour Court found that the Board had employed more than 100 persons in its establishment and, therefore, the provisions of Section 25N appearing in Chapter V-B of the Act were applicable. Another finding that was recorded was that the workman was drawing Rs. 1460; - per month at the time when his services were terminated and the management had paid to him a sum of Rs. 4138.81 Ps. as retrenchment compensation which was less than three months, wages to which he was entitled u/s 25N of the Act. It was also held that the Board did not seek permission of the appropriate Government to retrench the workman. In view of all these statutory violations, the Labour Court held that the order terminating the Services of the Workman was void ab initio and as such he was entitled to be reinstated with all service benefits.

Having heard counsel for the parties and after perusing the impugned award and the letter of appointment including the order granting further extension in service to the workman. I am of the considered opinion that the termination does not amount to retrenchment within the meaning of Section 2(oo) of the Act and, therefore the impugned award deserves to be set aside. The word ''retrenchment'' has been defined in Clause (oo) of Section 2 of the Act to mean termination by the employer of the services of a workman for any reason whatsoever otherwise then as punishment inflicted by way of disciplinary action. According to the proviso the retrenchment does not include amongst others termination of the services of the workman as aresult 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. In other words, if the service of a workman is terminated in terms of a stipulation contained in the contract of employment, then such termination does not amount to retrenchment.

In the case before us, a look at the order of appointment dated March 20, 1989 (Annexure P-I with the petition) and the order granting extension on August 7, 1989 (Annexure P-2 with the petition) makes it clear mat the temporary employment offered to the workman was subject to the stipulation that his services could be terminated on the appointment of a regularly selected incumbent to the post of Pharmacist, The services of the workman were terminated when the regular incumbent was appointed. His services having been terminated in terms of the stipulation contained in his contract of employment there was no retrenchment within the meaning of the Act and the provisions of Sections 25N and 25F were, therefore not attracted, Not only this, as noticed earlier the Board had invited application and the workman along with other was considered for regular appointment but he was not selected. He continued working till September 1990 under the ex pane orders passed by this Court on March 14, 1990. The action of the Board has been more than fair and no fault can be found with it. The findings recorded by the Labour Court that initial letter of appointment given to the workman did not contain the stipulation that his service could be terminated on the appointment of a regular incumbent is not correct and is based on a misreading of the documents. That letter has to be read in conjunction with the order granting extension to the petitioner on August 7, 1989 which contained a stipulation that has been reproduced in the earlier part of the judgment. The finding of the Labour Court in this regard cannot therefore be sustained. In M. Venugopal Vs. The Divisional Manager, Life Insurance Corporation of India, Machilipatnam, Andhra Pradesh and another, the services of a Development Officer who was on probation in terms of Regulation 14 of the Staff Regulations were terminated during that period. Clause 10 of this letter of appointment provided that he was expected to do a minimum business during that period and Clauses 11 provided that on his satisfactorily completing the period of probation and on his compliance with the conditions set out in the letter of appointment he "will be confirmed in the service of the Corporation.......". This clause further provided that his confirmation was dependent upon the minimum business guarantee set out in Clause 10, of the order of appointment. Since the Development Officer did not reach the minimum target fixed in Clause 10, his service was not found satisfactory by the competent authority and the contract of employment was terminated during the period of probation. In a writ petition filed by the Development Officer, a learned Judge of the High Court quashed the order of termination holding mat the termination of his service amounted to retrenchment within the meaning of Section 2(oo) of the Act and that Section 25F should have been complied with. In appeal before the Division Bench the High Court took the view that his termination did not amount to retrenchment because of Clause (bb). Upholding the view of the Division Bench, their Lordships of the Supreme Court observed that "any such termination, even if the provisions of Industrial Dispute Act were applicable in the case of the appellant, shall not be deemed to be "retrenchment" within the meaning of Section 2(oo) having been covered by exception (bb) of Section 2(oo). "It was also observed that" with introduction of one more exception to Section 2(oo), under Clause (bb) the Legislature has excluded from the purview of the "retrenchment" (i) 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 (ii) such contract being terminated under a stipulation in that behalf contained in contract of employment. It need not be impressed that if in the contract of employment no such stipulation is provided or prescribed, then such contract shall not be covered by Clause (bb) of Section 2(oo). In the present case, the termination of service of the appellant is as a result of the contract of employment having been terminated under the stipulations specifically provided under Regulation 14 and the order of the appointment of the appellant. In this background, the non-compliance of the requirement of Section 25F shall not vitiate or nullify the order of termination of the appellant."

It was then argued by the Mr. Malik that the workman had put in more than 240 days of service when his services had been terminated and it was, therefore, incumbent upon the Board to have complied with the provisions of Section 25F of the Act. In view of the aforesaid finding that there was no retrenchment of the workman within the meaning of the Act, the question of having completed 240 days or more is of no consequence. At any rate, the period during which the workman was working under the orders of this Court passed in CWP 3200 of 1990 cannot be taken into account for counting the stipulated period of 240 days. If that period is excluded the workman had not completed even 240 days of service.

In the result, the writ petition is allowed and the impugned award of the Labour Court is quashed. There is to order as to Costs.