Shantimoy Mandal vs Conciliation Officer and Joint Commissioner of Labour, Government of Andhra Pradesh and Others

P.S. Mishra, C.J.—Heard.

It is indeed unfortunate that a Government of India undertaking has chosen to act arbitrarily and terminated the services of a workman without following the procedures prescribed under Chapters V-A and V-B of the Industrial Disputes Act, 1947. Learned single Judge has, however, accepted the plea on behalf of the respondent-employer that the services of the petitioner-appellant have been terminated on account of the project for which he was appointed coming to a close and in any case, for the said reason the termination has been effected in accordance with the contract of service. Our attention has, however, been drawn to the conditions of the contract of service which has been filed in the writ petition on behalf of the respondent-employer. The condition under which termination is sought to be effected is as follows :

"Your appointment will be for the duration of L.M.M.M. project, Visakhapatnam or earlier depending on the requirement of the other work. However, during this period your service can be terminated with one month''s notice or one month''s pay in lieu thereof without assigning any reason".

When, however, confronted with a direct query whether the project has come to an end, learned counsel for the respondent-employer has stated that the project is not yet completed, but it is coming to such a close that many employees are not required and their services accordingly are decided to be terminated with one month''s notice or one month''s pay in lieu thereof.

''Retrenchment'' has been defined u/s 2(oo) of the Industrial Disputes Act, which with an amendment in (bb) reads as follows :

"(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".

When we look strictly to the conditions, however, under which the services of the petitioner is sought to be terminated, it is difficult to hold that it does not satisfy the definition of ''retrenchment''. Section 25A in Chapter V-A of the Industrial Disputes Act reads as follows :

"25-A. Application of Ss. 24-C to 25-E :-

(1) Sections 25-C to 25-E inclusive shall not apply to industrial establishments to which Chapter V-B applies, or

a) to industrial establishments in which less than fifty workmen on an average per working day have been employed in preceding calendar month; or

b) to industrial establishments which are of seasonal character or in which work is performed only intermittently.

(2) If a question arises whether an industrial establishment is of a seasonal character or whether work is performed therein only intermittently, the decision of the appropriate Government thereon shall be final".

It is not in dispute that the respondent employer is a Government of India undertaking and in case it is found to satisfy the definition of ''industrial establishment'' as provided under S. 25-L in Chapter V-B of the Industrial Disputes Act in case of termination, all requirements of S. 25-N of the Act are required to be fulfilled. In any case, it is not possible for the respondent-employer to contend that it is not an ''industry'' and since it is an industry, S. 25-F of the Act lays down the conditions precedent to retrenchment of workmen. A workman (it is not in dispute that the petitioner-appellant is a workman) can be removed with one month''s notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice and the notice is served in the prescribed manner on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette, and the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days'' average pay (for every completed year of continuous service) or any part thereof in excess of six months.

Learned counsel for the respondent employer has contended that there are no averments to show that the industry concerned is an ''industrial establishment'' as contemplated under S. 25-L of the Act and since there are no averments, there has been no occasion for the learned single Judge to go into all these aspects of the matter. Conceding for a moment, which, however, appears to be difficult on the facts of the instant case that there are no proper averments in this behalf in the writ petition which has been filed by the workman as party-in-person (a counsel has been provided in the appeal on behalf of the legal aid), still the requirements of S. 25-F of the Act, it is conceded, have not been complied with. The only ground that the said requirements have not been complied with is stated to be that the contract of service has been determined in accordance with the conditions therein. Since we have noticed that the conditions, as above, cannot be one which shall exempt the respondent-employer from the operation of the law as contained in S. 25-F of the Act, the termination of the petitioner-appellant''s appointment is illegal. The same is fit to be set aside. It is accordingly set aside. As a consequence of the above, the petitioner-appellant shall be deemed to be in continuous service and entitled to all consequential benefits.

In the result, the appeal is allowed. The impugned judgment is set aside. The writ petition is disposed of in terms as above.