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Judgment
Petitioner has filed the present writ petition being aggrieved by order dated 11/4/20019 contained in annexure P-11 passed by the Labour Court,
Shahdol. By said order respondent no.1 was reinstated with 50 % back-wages. It was held that termination of service of petitioner was in violation of
Section 25 â€"F of ID Act and also of Section 2(oo)(bb) of Industrial Dispute Act 1947.
Brief facts of the case is that one Narendra Rao who was working as permanent watchman in the establishment of petitioner was suspended vide
order dated 22/02/05 due to irregularities committed by him. Since there was no watchman in the Mandi, therefore, as a stopgap arrangement adhoc
appointment of respondent no.1 was made on temporary basis for a period of one month only. Thereafter, his services were extended from time-to-
time. There was no approval from Mandi Board for appointment of respondent no.1. Audit Board took objection that appointment of respondent no.1
was made without approval of Mandi Board. Appointment which was made on the behest of President Mandi Committee was illegal. Petitioner also
relied on circular dated 24.07.1990 and circular no.2464 dated 25.02.1991 which lays down that appointment made without approval of Deputy
Director Mandi Board would be construed as illegal and void ab initio. Due to said objection the service of respondent was dispensed with w.e.f.
05/09/13.
Aggrieved by termination of service, respondent no.1 raised industrial dispute in the Labour Court District Shahdol (M.P.). It was averred that his
services were terminated without complying with the provisions of Section 25â€"F and 25â€"G of Industrial Dispute Act, 1947, therefore, termination
of services of respondent no.1 is bad in law and deserves to be quashed.
Petitioner averred that respondent no.1 was not appointed against regular and vacant post and therefore, there is no question of complying with
Section 25â€"F and 25â€"G of the Industrial Dispute Act. Respondent no.1 was appointed for limited period and he never achieved the status of
permanent employee. Due to non-renewal of contract, employment comes to an end on the date of expiration of tenure. In view of the aforesaid,
termination of respondent no.1 was not by way of retrenchment in view of Section 2(oo)(bb) of the Act. Respondent no.1 has also admitted in the
cross-examination that he worked as a part-time watchman and his services were extended for limited period. In view of aforesaid facts and law,
petitioner submitted that award passed by the labour Court dated 11/04/19 in Case No.05/2014 may be set aside.
Counsel appearing for the respondent, on the other hand, contended that respondent no.1 has achieved the status of a permanent employee. There
were artificial breaks in service of respondent no.1 designed by petitioner with oblique motive so that respondent no.1 retain the status of temporary
employee. The act of petitioner amounts to unfair labour practice. Respondent no.1 has worked for a continuous period of about seven years and
therefore, his termination will be covered under retrenchment as per Section 25-F of Industrial Dispute Act 1947. In view of above, prayer was made
by the counsel appearing for respondent no.1 to dismiss the writ petition.
Considered the argument of petitioner’s counsel as well as respondents and also perused the documents and award passed by the Labour
Court. From perusal of documents and the arguments made by the counsel for petitioner as well as respondent it is clear that respondent no.1 was
removed from service on audit objection Ex. P/18. Except this document, no other document has been filed by petitioner to show audit objection.
Services of respondent no.1 has been terminated vide order dated 4/09/13. In the order, it has been mentioned that petitioner was part-time worker
and his appointment was contrary to Circular 2464 dated 25/02/1991 and Circular no.136 dated 24/07/1990. Appointment of respondent no.1 was held
to be illegal and appointment was made despite of direction /prohibition orders issued by the Board.
The question for consideration is whether termination of service due to illegal appointment will also fall within the definition of retrenchment as
given in Section 2(oo) of Industrial Dispute Act, 1947. As per the said Section, retrenchment means termination by the employer of the services of a
workmen for any reason whatsoever. However some exceptions have been carved out in Section 2(oo) of the Act where services of a workmen has
come to an end because of (1) voluntary retirement (2) superannuation (3) if termination of service of workmen is as a result of non-renewal of
contract of employment between employer and workmen (4) termination of the services of workman on ground of continued ill health. If termination
of services of a workmen does not fall within this four exceptions, then termination of service will be considered as retrenchment under Section 2(oo)
of the Act. Petitioner before the Labour Court has failed to prove that contract of respondent no.1 has come to an end and therefore, with efflux of
time his service has come to an end. Since petitioner has failed to prove the Exception given in Section 2(oo) of the Act, Learned Labour Court rightly
held that termination of service is covered under Section 2(oo) of Industrial Dispute Act, 1947. Petitioner has further not denied that respondent no.1
has worked for 240 days in one year. Since respondent no.1 has worked for 240 days in one year, therefore, condition precedent to retrenchment as
given in Section 20-F of the Act is attracted in the case and order dated 04/09/13 terminating service of respondent no.1 is illegal. Respondent no.1
has specifically made statement that he was not gainfully employed. If respondent no.1 was gainfully employed then it was the duty of petitioner to
show that he was gainfully employed during the period of termination. In view of aforesaid legal position and facts of the case, I do not find any error
in the order passed by the Labour Court ordering reinstatement of respondent no.1 along with 50% back wages.
Resultantly, the writ petition filed by the petitioner is dismissed.