The Municipal Committee vs The Presiding Officer, Labour Court and Another

Jawahar Lal Gupta, J.—These 14 writ petitions viz. Civil writ Petition Nos. 6093,6677,6678 to 6686,6715,14442 and 14459 of 1992 raise a common question: could the Labour Court have ordered the reinstatement of persons employed on work charged basis or daily wages in the circumstances of these cases ?

The Municipal Committee, Mandi Gobindgarh, is the petitioner in 12 of these cases. In the remaining two cases viz. Civil Writ Petitions Nos. 14442 & 14459 of 1992, the Municipal Committee, Rajpura is the petitioner. The petitioners are aggrieved by the awards given by the Labour Court by which it has been held that the termination of the services of the workman was in violation of the provisions of Section 25F of the Industrial Disputes Act, 1947.(hereinafter referred to as ''the Act''). The respective workmen have been ordered to be reinstated with full back wages. In Civil Writ Petitions Nos. 6093,6677 and 6679 to 6686 of 1992, the workmen were engaged as Malis (Gardeners). In Civil Writ Petition No. 6678 of 1992, the Workman was engaged as a chowkidar. In Civil Writ Petition No. 6715 of 1992, the workman was engaged as a Mali-cum-chowkidar. In Civil Writ Petitions Nos. 14442 and 14459 of 1992, the workmen were employed as Beidars. Though the factual position in all the cases is almost identical, learned counsel for the parties have referred to the facts in Civil Writ Petition No. 6093 of 1992 only. These may be briefly noticed.

Bhupinder Singh was employed as a Mali. After he had worked for about two years, his services were terminated on December 1, 1987. He raised a dispute. It was referred to the Labour Court on June 13, 1988. The respondent filed a Statement of Claim in which he averred that his services had been arbitrarily and unjustly terminated "without any notice charge sheet, enquiry or compensation." He claimed reinstatement with continuity of service and full back wages. The petitioner contested the claim. It was inter alia pleaded that the applicant "was appointed purely temporary (temporarily) against the specified estimate for fixed period." It was also stated that "the applicant was voluntarily retired after the contract period was over." After recording the evidence, the Labour Court considered the matter and found that the workman had worked "for about one year continuously" and that his services had been terminated "without complying with the provisions of the said Section 25F-----". It consequently ordered the reinstatement of the workman with full back wages. Aggrieved by this award of the Labour Court, the petitioner has approached this Court through the present writ petitions.

In the writ petition, it has been inter alia averred that the municipal works are executed in accordance with the provisions contained in Chapter XII of the Municipal Account Code, 1930. The work can be got done either through a contractor or through the Department. In cases where the work is executed by the Department muster rolls are prepared and the expenses of the labour are appropriated to the specific work. The period of employment of the labour is" Co.terminus with the work to be executed. When the work comes to an end, the labour becomes surplus." On these promises it is claimed that the respondent-workman was employed on daily wages and his employment was to come to an end as soon as the particular work for which he was employed was completed. It has been further averred that the respondent was not employed by the committee in accordance with the provisions of Sections 38 and 39 of the Punjab Municipal Act, 1911 but only by the Officer Incharge of the work. There is no existing job against which the workman can be reinstated. It has been further averred that there is no proof that the workman was not gainfully employed after the termination of his services. In this basis, it is claimed that the award given by the Labour Court deserves to be quashed.

A written statement has been filed on behalf of the respondent-workman. It has been averred by way of a preliminary objection that the petitioner-committee "has sought to set up his (its) case precisely on the strength of certain new facts for the first time before this Hon''ble Court and further an attempt is made to challenge the firm finding of the fact, recorded by the learned Labour Court after due appreciation of evidence on the record which .......... cannot be allowed to be questioned in the writ proceedings." On merits, it has been averred that no " order was ever passed employing the answering respondent for a specific work and there is also no pleading to this effect even in the written statement. Further the work for which the answering respondent was engaged is admittedly perpetual in nature." Further, it has been averred that " the Muster Rolls were not deliberately produced because the existence thereof would have completely falsified the stand put forth by the petitioner." According to the respondent, he was neither appointed for any specific work nor any order in writing to this effect was ever issued. The other averments made in the petition have also been controverted. Specific reference has been made to the statement of Mr. J.S. Dhillon, Sectional Officer, produced by the petitioner as MW-1 before the Labour Court. On these premises, the claim made by the petitioner has been controverted and it has been prayed that the writ petition be dismissed.

I have heard Mr. T.S. Doabia, learned counsel for the petitioner and M/s. Arun Palli and Govind Goel for the respondent-workmen.

Mr. Doabia has vehemently contended that whenever the committee executes a work departmentally, labour is engaged for that purpose by the Officer Incharge of the work and as soon as the work is completed, the employment automatically comes to an end. The services of the respondent workmen were automatically terminated on the completion of the respective works for which they had been engaged and that the Labour Court has erred in ordering their reinstatement. The claim made on behalf of the petitioner has been controverted by the learned Counsel for the respondent-workmen.

It is true that "termination of services of the workman as a result of the non renewal of the contract of employment-----on its expiry or of such contract being terminated under a stipulation- in that behalf contained therein" does not amount to retrenchment as contemplated u/s 2(oo) of the Act. If a person is engaged for a specific period, or for the execution of a specific work and a clear stipulation is made in the contract of employment that the services shall be terminated at the expiry of the work, the workman shall not be entitled to claim that he has been retrenched or that the action is violative of the provisions of the Act. In such a situation, even the provisions of Section 25F shall not be attracted. Consequently, the Labour Court shall be entitled to reject the claim of the workman, It is equally true that where on account of reasons of economy etc, the management bonafide decides to abolish certain posts and retrenches its employees, the Court shall not force the employer to create posts and reinstate the workman. However, these are all questions of fact which have to be proved by reading cogent evidence.

What is the position in the present case?

It is claimed on behalf of the petitioner that the employment was on work-charged basis. It was "co-terminus with the work to be executed." However, there is no evidence in support of this contention. The order of appointment has not been produced. Even if it is assumed though no such averment has been made in the writ petition that letters of appointment were not separately issued to the workmen, no record has been produced to show that the workmen had been employed temporarily for executing any specific works and that their services had been terminated on the completion of the respective works. Surely, if the employment had been made only for certain specific work/s, there would have been some on the files of the petitioners to support that. None have been produced. As for the oral evidence, it deserves notice that Mr. J.S. Dhillon, Sectional Officer, who appeared as MW-1 stated that "the workman was employed on daily wage basis against the estimates for a period of three months--the workman voluntarily retired after the expiry of the fixed period." However, when cross examined, the witness admitted that, "the period of service mentioned in the Statement of Claim by the workman is correct but with breaks." This period was about two years. He further admitted that "no written order was issued to the workman employing him for specific period and for specific work. There are about 250-300 employees of the respondent. The work of the respondent-committee is in progress." It is, thus, apparent that there was no contract of employment for a specific period and the services had not been terminated at the expiry thereof. The work of the committee was still in progress. In this situation, the claim made on behalf of the petitioner cannot be sustained.

Mr. Doabia referred to the decision of a Division Bench of the Patna High Court in Management of the National Projects Construction Corporation Limited. Bhagalpur and Anr. v. Their workmen,1 1970 Lab IC 907 (Patna) to contend that persons employed on work charged basis could not be foisted on the employer. Their Lordships have undoubtedly held that "where, in very nature of the employment, it is of temporary character it is wholly inequitable to force the employer to continue to employ even those workman who know that their job is purely temporary." There is no quarrel with this proposition. However, the nature of employment has to be produced by cogent evidence. This is lacking in the present cases. The petitioners led no evidence before the Labour Court to prove that the workmen had been engaged for specific works and for a definite period. These petitioners also could not prove that the termination had been effected on the completion of the respective works. In such a situation, no fault can be found with the impugned awards.

In my view of the above, the question posed at the outset is answered in the affirmative. It is held that in the circumstances of the present cases, there is nothing on record to show that the respondent-workman had been employed for a definite period for doing specific jobs. Their services are not shown to have been terminated at the expiry of the period of employment. Consequently, the Labour Court rightly ordered their reinstatement.

There is, thus no merit in these petitions. Consequently, the writ petitions are dismissed. In the circumstances of these cases, there will be no order as to costs.