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Judgment
The petitioner (M/s. Secunderabad Club) in this writ Petition is challenging the Award of the Additional Industrial Tribunal-cum-Additional Labour Court, Hyderabad, in I.D.No.259 of 1992 dated 15-9-1994 by which the 2nd respondent (R.Anil Kumar) was directed to be reinstated in service with full back wages and continuity of service apart form wages as per the minimum wages fixed by the Government for the post of Clerk-cum-Typist.
The 2nd respondent was appointed as a Typist-cum-clerk on temporary basis with effect from 19-7-1991 vide appointment order dated 2-8-1991. His services came to be terminated abruptly in accordance with Clause 6(3) of the Service Conditions. No notice of termination was given nor any reasons were assigned for terminating his services. According to the petitioner-Club, the 2nd respondent was temporarily appointed because of exigency of typing work to clear off certain urgent and pending typing work and after completion of the same, the temporary services of the 2nd respondent were no longer required. Therefore, according to the petitioner, vide letter dated 26-6-1992 the services of the 2nd respondent were terminated.
The 2nd respondent filed an application u/s 2A(2) of the Industrial Disputes Act before the Addl. Industrial Tribunal-cum-Additional Labour Court (hereinafter referred to as ''the Labour Court'') which was numbered as I.D.No. 259 of 1992. An Award, was passed by the Labour Court on 15-9-1994 directing the petitioner-Club to reinstate the 2nd respondent into service with full back wages and continuity of service. Being aggrieved by the said Award, the petitioner-Club has filed this writ Petition.
The Labour Court observed in its impugned order that admittedly the petitioner (2nd respondent herein) worked for more than 240 days, that the respondent (petitioner herein) could retrench his services u/s 25-F of the Industrial Disputes Act provided he was given one month''s notice or paid wages for one month and also retrenchment compensation equivalent to 15 days'' average pay for every completed year of continuous service. The Labour Court further observed that even u/s 47 of the A.P. Shops and Establishments Act, 1988, no employer should terminate an employee who had been in his employment continuously for a period of six months. The Labour Court took into consideration the submissions made on behalf of the employer that the services of the temporary employee could be terminated without notice or pay in lieu of notice without assigning any reason according to Rule 6-C of the Service Regulations. But, according to the Labour Court, the service regulations cannot over-ride the statutes like Industrial Disputes Act and the Shops and Establishment Act.
The Labour Court also took note of the Supreme Court''s decision in M. Venugopal v. LIC of India. 1994 (1) LLJ SC 597, in which it was held that in view of clause (bb) of Section 2(oo) of the Industrial Disputes Act, the termination does not amount to retrenchment. Clause (bb) of Section 2(oo) of the Industrial Disputes Act which reads as under excludes ''termination'' from the definition of ''retrenchment'':
"(bb): Termination of the service of the workman as a result of the non-renewal of the contract of the 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;''''
Thus, according to the Labour Court, when an employee was appointed for a fixed term and the contract of employment between the employer and the employee was not renewed on the expiry of the term an when such contract was terminated under stipulation in that behalf contained in the contract, Section 2(oo)(bb) comes into operation. The period of appointment was not fixed in Ex.W-1-appointment order and there was no clause in the said appointment order of the employee that his services could be terminated at any point of time without notice and, therefore, the Labour Court held that he decision of the Supreme Court in Venugopal''s case (supra) did not help the respondent-employer. The employer''s allegation that he employee was whilling away his time and was typing like a beginner and that the employer was justified in removing the employee from service was held to be not proved by the Labour Court, apart from the fact that the ground taken for termination was the nature of work being temporary, and not ''inefficiency'' of the workman. The Labour Court also took into consideration the allegation made by the employee that his junior (Mr. Ranjit Singh) was continued in service and held that Ranjit Singh was not a typist by the date the petitioner (employee) was terminated. The learned Judge of the Labour Court, therefore, directed the employer-club to reinstate the petitioner into service with full backwages and with continuity of service. The Labour Court further held that the petitioner was entitled to wages as per the minimum wages fixed by the Government for clerk-cum-typist of the clubs.
The facts are not much in dispute. The main argument advanced on behalf of the employer was that the 2nd respondent-employee was appointed purely on temporary basis for the purpose of carrying out the temporary work and immediately after the completion of the temporary work, his services were terminated and, therefore, according to the employer, no compulsion could be made on the employer to reinstate such person who was appointed purely on temporary basis for carrying out temporary work. In support of his submissions, the learned Counsel for the employer pressed into service the decision of the Supreme Court in the case of Escorts Limited v. Presiding Officer and another 1997 LLR 699. In paragraph 3 of the said judgment, the Supreme Court observed that:
"3. We do not consider it necessary to go into the question whether the workman had worked for 240 days in a year and whether Sundays and other holidays should be counted, as has been done by the Labour Court, because, in our opinion, Shri Shetye is entitled to succeed on the other ground urged by him that the termination of services of the workman does not constitute retrenchment in view of clause (bb) in Section 2(oo) of the Act. Clause (bb) excludes from the ambit of the expression '' ''retrenchment" as defined in the main part of Section 2(oo)..... The said provision has been considered by this Court in M. Venugopal v. Divisional Manager, LIC, (supra).The appellant in that case had been appointed on probation for a period of one year form May 23, 1984 to May 22, 1985 and the said period of probation was extended for further period of one year from May 23, 1985 to May 22, 1986. Before the expiry of said period of probation, his services were terminated on May 9, 1986. It was held that since the termination was in accordance with the terms of the contract though before the expiry of the period of probation it fell within the ambit of Section 2(oo)(bb) of the Act and did not constitute retrenchment. Here also the services of the workman were terminated on February 13, 1987, as per the terms of the contract of employment contained in the appointment letter dated January 9, 1987 which enabled the appellant to terminate the services of the workman at any stage without assigning any reason. Since the services of the workman were terminated as per the terms of the contract of employment, it does not amount to retrenchment u/s 2(oo) of the Act and the Labour Court was in error in holding that it constituted retrenchment and was protected by Sections 25F and 25G of the Act."
The fact that the employee was on probation was the main consideration for coming to a conclusion that the termination could not be treated as retrenchment and there could be no dispute about the said proposition as held by the Supreme Court in the above case, inasmuch it is a settled principle of law that no reasons are required to be cited when the services of an employee on probation arc brought to an end without any notice or without any reason either before the completion of the probation period or on the date of completion of probation period. But, in the instant case, the situation is quite different. It is alleged by the employer that the appointment was purely on temporary basis for the completion of the work which was temporary in nature. However, in my considered opinion, an employer cannot escape from the clutches of law by camouflaging the real nature of employment under the guise of the term ''temporary''. If the appointment was purely of a temporary nature and the nature of work entrusted to that employee was also of a temporary nature, it was incumbent upon the employer to show firstly the particulars of work which was alleged to be of a temporary nature and what period was likely to be taken for its completion and whether the rising of work or piling up of work took place on account of sudden expansion which was likely to come to an end within a particular period of time. In the case before us, the workman''s services were terminated on 26-6-1992 after he had put in more than 11 months'' service., but without caring to explain even in the present Writ Petition the "exigency of typing work" which necessitated the engagement of the workman on temporary basis. Nothing has also been brought on record to show how the exigency of work came to an end which resulted into his abrupt termination. I an firmly of the view that the length of service is not the criterion for determining the nature of work whether it is temporary or permanent, but it is basically the nature of work which would enable the Court of law to arrive at a conclusion whether the intention of the Management were honest in calling it a temporary appointment for a temporary work or it was merely a camouflage for avoiding the liabilities which may arise out of the employment of a person on regular basis.
The appointment of a person for a fixed period cannot attract the application of Section 25-F of the Industrial disputes Act is also reflected from the decision of the Supreme Court in State of Rajasthan and others Vs. Rameshwar Lal Gahlot, . Asserting the ratio emerging from the case of M.Venugopal (supra), the Supreme Court observed that when the appointment was for a fixed period, unless there was a finding that the power under clause (bb) of Section 2(oo) was misused or vitiated by its mala fide exercise, it could not be held that the termination was illegal and it should be established in each case that the power was misused by the management or the appointment for a fixed period was a colourable exercise of power. The important distinguishing feature in our case is the absence of any fixed period for which the appointment was made. From the affidavit filed by the Secretary of petitioner-Club, it is clear that the appointment was not for a fixed period. The following averments made in the affidavit are relevant for that purpose:
'''' 1 .The 2nd respondent was engaged purely on temporary basis in view of the exigency of typing work; and
The 2nd respondent was engaged to clear off certain urgent pending typing work and after completion of the same the temporary services of the 2nd respondent was no longer required. Accordingly, the 2nd respondent was terminated from the said temporary services vide letter dated 26-6-1992."
However, if we look at the Petitioner-Club''s Service Regulations, it becomes evident from Clause 4(b) relating to ''Temporary Workman'' that a workman who has been engaged for a limited period of time which is essentially of temporary nature or in connection with temporary increase in work of permanent nature or who is employed in temporary vacancy caused directly or indirectly by absence of or leave of permanent workman. Three alternatives are, therefore, open to the employer according to the above regulation to appoint a workman on temporary basis, and out of the same the one which is invoked in the present case is "temporary increase in work of permanent nature". There is no dispute about the fact that the workman had not been engaged for a limited period of time or that he was employed in a temporary vacancy. Temporary increase in work of permanent nature is the only plea taken by the employer. But, the employer has maintained intriguing silence with regard to temporary increase in work of permanent nature. Not a word has been stated in the Writ Petition except reproducing the phrase that the workman was employed in connection with temporary increase in work of permanent nature, which cannot be treated as a sufficient ground for terminating the workman''s services.
While dismissing a SLP in Himanshu Kumar Vidyarthi v. State of Bihar 1997 (2) LLN 982, the Supreme Court held that disengagement of daily wage employees from service could not be construed to be a retrenchment under the Industrial Disputes Act. The concept of retrenchment therefore, could not be stretched to such an extent as to cover those employees. In the case before the Supreme Court, the workmen were not appointed to the posts in accordance with the Rules but were engaged on the basis of the needs of the work. They were temporary employees working on daily wages. In the instant case, however, our endeavour is to find out whether the work for which the workman was employed was truly and factually a temporary increase in the work of a permanent nature or whether the term ''temporary employment'' was used as a camouflage for avoiding the statutory obligations arising out of the engagement of a person on regular basis. We are not confronted with the proposition whether the termination in the instant case could be treated as retrenchment or not.
The decision in M Venugopal''s case (supra) has already been considered above while considering the applicability of the ratio laid down in R.L. Gahlot''s case (supra). Since the emphasis is on termination of the service of a probationer vis-a-vis retrenchment as against the proposition that a person appointed on temporary basis is liable to be terminated at any time without assigning any reason, in the case before us, it would not be in fitness of things to apply the ratio laid down by the Supreme Court in M. Venugopal''s case (supra).
On behalf of the Workman-2nd respondent, the decision of the Supreme Court in Sadhu Ram Vs. Delhi Transport Corporation, , has been pressed into service. The Supreme Court, in the said case, held that the jurisdiction under Article 226 of the Constitution was truly wide but for that very reason it had to be exercised with great circumspection. Where the circumstances indicated that the Tribunal had snatched at jurisdiction, the High Court may be justified in interfering. But where the Tribunal assumed jurisdiction only on a reference being made it was impossible ever to say that the Tribunal had snatched at the jurisdiction, the Supreme Court did not think that it was proper for the High Court to substitute its judgment for that of the Labour Court and to hold that the workman had raised no demand with the Management.
There indeed, with respect, could be no dispute about the above proposition. Although the ground taken by the Labour Court for allowing the reference do not appear to be quite reasonable and proper, the ultimate decision arrived at by the Labour Court in the instant case does not appear to be suffering from any legal infirmity and, therefore, this Court does not find any cause to interfere with the same.
The learned Counsel for the workman also urged the decision of the Supreme Court in Abhinash Chandra v. Union Territory of Tripura 1983 LAB IC 1738, in which the Supreme Court held that in a case where discharge was held to be illegal, the appellant was entitled to backwages as if his services were uninterrupted. We have not had an occasion to express any view on this aspect in this case and there could be no doubt about the feet that in cases where discharge is held to be illegal, the order of backwages has to follow as a matter of course.
On the question of withholding payment of half of back wages in view of misconduct, the Supreme Court held in Jitendra Singh v. Shri Baidyanath Ayurved Bhavan Ltd 1984 LAB. 1C 554, that withholding of half of the backwages was in the nature of penalty and it could not be said that the reinstatement was granted on terms of withholding of half of the backwages and, therefore, did not constitute penalty. We are one with this observation of the Supreme Court in the said case, but no cause arises in the instant case to consider the applicability of the same.
With the above facts and circumstances in view on applying the principles emerging from the decisions cited by the rival parties, I firmly believe that there is no constraint on upholding the decision of the Labour Court and consequently to dismiss the writ petition filed by the employer.
Hence, the writ petition is dismissed. The award of the Labour Court in directing the petitioner (employer) to reinstate the 2nd respondent (workman) into service with full back wages and continuity of service is upheld. The further direction that the workman is entitled to wages as per the minimum wages fixed by the Government for clerk-cum-typist is also upheld. No costs.