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Judgment
Ajay Tewari, J.—By the present petition the petitioner has challenged the award of the Labour Court dated 28.04.1993 (Annexure P-9) holding the termination of service of the respondent No. 2 as illegal. The admitted facts are that the petitioner-HAFED appointed the respondent No. 2 on two occasions as Supervisor. The work of the respondent No. 2 was to oversee the construction of two godowns which were being constructed by the contractor at Assandh. After the first appointment which lasted for 374 days for supervising the construction of 4000 MT. godown at Assandh the respondent No. 2 was offered second appointment for a period of 89 days for supervising the construction of 1000 Mt. godown at Assandh. He claimed that he had worked for more than 240 days and consequently termination of his services without giving him the benefits of Section 25-F of the Industrial Disputes Act is illegal. The stand of the petitioner-HAFED was that the services of the respondent No. 2 were terminated in terms of Section 2(oo)(bb) of the Industrial Disputes Act. It was pleaded that the petitioner-HAFED had no post of Supervisor on its establishment and the appointment of the respondent No. 2 was made for the specific purpose i.e. to supervise the godowns. The Labour Court upheld the contention of the respondent No. 2, rejected the claim of the petitioner and held that since he had worked for more than 240 days in one calendar year his services could only have terminated after taking recourse of Section 25-F of the Industrial Disputes Act. This not having been done it held termination invalid and ordered reinstatement of the respondent No. 2 with continuity of service with 40% backwages.
Learned counsel for the petitioner-HAFED has argued that the Labour Court did not give any reason why it denied the claim of the petitioner that the appointment of the respondent No. 2 was covered by Section 2(oo)(bb) of Industrial Disputes Act and had only stated that the respondent No. 2 had completed more than 240 days.
I find that this is indeed so. The only observation made by the Labour Court in paragraph No. 9 is as under:-
"It is not the case of the petitioner employer that after 19th September, 1987 the work that was being taken from the respondent ceased to exist and no one was thereafter ever employed."
This finding is contrary to the record because in the reply filed it was clearly mentioned that the respondent No. 2 was first appointed for supervising the construction of 4000 MT. godown at Assandh and after that he was again hired for supervising the construction of 1000 Mt. godown at Assandh. Thereafter, the petitioner was relieved. Beyond that it was for the respondent No. 2 to have alleged and proved that some other person was appointed and the petitioner-HAFED could not have been asked to plead and proved in the negative. To my mind, the key determinant is the un-rebutted assertion of the petitioner that there is no post of supervisor on its establishment.
Learned counsel for respondent No. 2 has relied upon the judgment of this Court in the matter of Bhikku Ram Vs. The Presiding Officer, Industrial Tribunal-cum-Labour Court, and the judgment of Delhi High Court in the matter of Mgt. Of Delhi Financial Corpn. v. Presiding Officer, Labour Court and another, passed in C.W.P. No. 4330 of 1997, decided on 28.01.2013.
In the first case, a Division Bench of this Court observed as follows:-
"21. Therefore, while interpreting and applying various parts of Section 2(oo), the competent Court/Tribunal shall have to keep in mind the provisions of Section 2(ra) read with Section 25T and U and various paragraphs of the Fifth Schedule and if it is found that the action of the employer to engage a workman on casual basis or as a daily-wages or even on temporary basis for long periods of time with intermittent breaks and subsequent termination of service of such workman on the pretext of non-renewal of contract of employment or termination of contract of employment on the basis of a stipulation contained therein is an act of unfair labour practice, such an action of the employer will have to be nullified and the Court will be fully justified in rejecting the plea of the employer that termination of service of the workman does not amount to retrenchment but is covered by Clause (bb). In the context of various paragraphs of the Fifth Schedule, Clause (bb) which is an exception to the principal section will have to be given a narrow interpretation. This clause has the effect of taking away a right which was vesting in the workman prior to its insertion. Therefore, the same cannot be allowed to be used as a tool of exploitation by the employer who, as already observed above, enjoys a position of dominance as against the workman. The employer is always in a position to dictate the terms of service vis-a-vis the workman or to be workman. The employer can unilaterally impose oppressive and unreasonable conditions of service and the workman will be left with little choice but to accept all such conditions. The employee cannot possibly protest against the incorporation of arbitrary, unreasonable and even unconscionable conditions of service in the contract of employment. Any such protest by the employee or a to be employee will cost him job or a chance to enter employment. In respect of a work of permanent or continuing nature, the employer can always give an employment of fixed term or incorporate a condition in the contract of employment/appointment letter that the employment will come to an end automatically after a particular period or on the happening of a particular event. In such a situation, if the Court finds that the conditions are arbitrary and unreasonable and the employer has forced these conditions upon a workman with the sole object of avoiding his obligation under the Industrial Disputes Act, a bald plea of the employer that the termination of service is covered by Clause (bb) will be liable to be rejected.
We may make a slight digression to point out that in the cases of public appointment, the Courts have unequivocally recognised the rule that the employer cannot terminate the service of an employee according to its sweet will by incorporating arbitrary and oppressive conditions of service. In cases of purely ad hoc and temporary employees, the Supreme Court has in State of Haryana and others Vs. Piara Singh and others etc. etc., held that service of such an employee cannot be terminated in order to make room for another similarly situate employee or with a view to give employment to a fresh temporary or ad hoc appointee. In The Manager, Government Branch Press and Another Vs. D.B. Belliappa, the Supreme Court has applied the principle of ''last come first go'' in the matter of termination of service of a purely temporary employee. Similarly, in E.P. Rayappa v. State of Tamil Nadu, 1974-I-LLJ-172, their Lordships of the Supreme Court have held that of invoking Articles 14 and 16 by a Government servant, it is necessary that he must have a right to hold the post and the action of the employer will be vitiated if it is found to be arbitrary and unreasonable. In Central Inland Water Transport Corporation Limited and Another Vs. Brojo Nath Ganguly and Another, the Supreme Court invoked Section 23 of the Contract Act for taking the view that a contract of employment which is opposed to public policy is also ultra vires to Article 14 of the Constitution. That was a case in which service of an employee was terminated by a notice in terms of the rule governing contract of service. Their Lordships held that Rule 9(1) of the Central Inland Water Transport Corporation Limited Service Discipline and Appeal Rules, 1979, which empowers the employer to terminate the service of a permanent employee without reason is void u/s 23 of the Contract Act as being opposed to the public policy and is also ultra vires Article 14 of the Constitution to the extent that it confers upon the Corporation the right to terminate the employment of a permanent employee by giving him three months'' notice in writing or by paying him the equivalent of three months, basic pay and dearness allowance in lieu of such notice in that, besides being arbitrary and unreasonable, it wholly ignores audi alteram partem rule. The court made reference to a large number of English authorities and further observed:-
"The principle deducible from various precedent is that the Court will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, learned into between parties who are not equal in bargaining power. For instance, the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply where the inequality is the result of circumstances, whether of the creation of the parties or not. It will apply to situations in which he can obtain goods or services or means of livelihood only upon the tonns imposed by the stronger party or go without them. It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair unreasonable and unconscionable a clause in that contract or form or rules may be. The types of contracts to which the principle formulated above applies are not contracts which are tainted with illegality but are contracts which contain terms which are so unfair and unreasonable and they shock the conscience of the Court. They are opposed to public policy and require to be adjudged void."
This observation has been followed by the Delhi High Court in the second judgment. However even if, as mentioned in the judgment, the veil is sought to be lifted it does not reveal in the present case that the post of supervisor was an existing post or that it was a continuing work.
In the circumstances, this petition is allowed.
Since the main case has been decided, the pending civil miscellaneous application, if any, also stands disposed of.