IMPORTANT POINT
Where services of workman were terminated or a regular basis and he had been appointed after a gap of one or two days and completed 240 days in the year, Section 2 (oo) (bb) of Industrial Disputes Act would not be attracted.

Headnote:Industrial Disputes Act, 1947—Sections 2(oo)(bb) and 25 F—Termination of Service—Respondent was appointed for 89 days on each time between 31-10-1990 to 7-2-1992 in the post of Junior Technician (Electronics) an ad hoc basis—Her services were terminated on 7-8-1992—Industrial dispute raised by her was referred for adjudication by Labour Court—Claim was contested on plea that appointment being on contract basis as envisaged u/s 2 (oo)(bb) of the Act, services were liable to be terminated in terms thereof—Labour Court held termination of service bad in law holding that respondent had completed 240 days of work during twelve months immediately preceding date of termination of her service and directed reinstatement with back wages—High Court upheld the award and dismissed the writ—Appeal—Respondent used to be appointed for 89 days after a gap of one or two days upon completion of each term—Such action on part of appellant could not be said to be bona fide—Finding of fact that her services were terminated on regular basis could not be said to be illegality—Course of action adopted by appellant was with a view to defeat object of the Act—Section 2(oo)(bb) of the Act was not attracted—Respondent was appointed however on ad hoc basis and post was advertised for regular appointment and respondent did not apply therefor—Now if respondent was reinstated on ad hoc basis, her services could not be regularised—In peculiar facts and circumstances, in place of reinstatement with back wages, a lump sum amount by way of compensation could be awarded—Respondent to be paid Rs. 25000/- as compensation.
       Held : The respondent was appointed from time to time. Her services used to be terminated on the expiry of 89 days on regular basis. However, it is noticed that she used to be appointed after a gap of one or two days upon completion of each term. Such an action on the part of the Appellant cannot be said to be bona fide. The High Court rejected the contention raised on behalf of the appellant herein stating :
       “...It is not possible for us to accept the aforesaid plea raised at the hands of the management on account of the fact that the factual position, which has not been disputed, reveals that the respondent-workman was repeatedly engaged on 89 days basis. It is, therefore, clear that the intention of the management was not to engage the respondent - workman for a specified period, as alleged, but was to defeat the rights available to him under Section 25-F of the Act. The aforesaid practice at the hands of the petitioner - management to employ the workman repeatedly after notional break, clearly falls within the ambit and scope of unfair labour practice...”
       A finding of fact was arrived at that her services were terminated on regular basis but she was re-appointed after a gap of one or two days. In that view of the matter, the Labour Court or the High Court cannot be said to have committed any illegality. In this case the services of the respondent had been terminated on a regular basis and she had been re-appointed after a gap of one or two days. Such a course of action was adopted by the Appellant with a view to defeat the object of the Act. Section 2 (oo)(bb) of the Industrial Disputes Act, 1947, therefore, is not attracted in the instant case. However, indisputably, the respondent was appointed on an ad hoc basis. She, although qualified to hold the post of Junior Technician, when the advertisement had been issued for filling up the said post, did not apply therefor. The services of the respondent was termination as far back as in the year 1992. Even if she is reinstated in her service on an ad hoc basis, her services cannot be regularized in view of a recent Constitution Bench decision of this Court in Secretary, State of Karnataka & Ors. v. Uma Devi & Ors. [2006(4) SCALE 197]. Furthermore, she had absented herself for a period of 19 days from 20.1.1992 to 7.2.1992 and for a period of 11 days from 17.2.1992 to 27.2.1992. We, therefore, are of the view that in the peculiar facts and circumstances of this case, interests of justice would be sub-served if in the place of reinstatement with back wages, a lump sum amount is directed to be paid by way of compensation. This order is being passed keeping in view the fact that the respondent has not worked since 1992. The post on which she may have been working must have also been filled up.(Paras 9 to 13)
       In view of the settled legal position, as noticed hereinbefore, we modify the impugned order by directing that the respondent shall be compensated by payment of a sum of Rs. 25,000/- in stead of the order for reinstatement with back wages.(Para 19)

JUDGMENT

S.B. Sinha, J.—Leave granted.

2. The respondent herein was appointed initially for a period of 89 days in the post of Junior Technician (Electronics) on an ad hoc basic on or about 31.10.1990. In terms of an offer of appointment made to her, she was appointed therein. The post was purely temporary and her services were liable to be terminated without assigning any reason or notice. It was categorically stated that the respondent shall have no claim for regular appointment having worked with the appellant-Corporation on ad hoc basis. Her services were extended from time to time. In each of the offer of appointment, indisputably, similar terms and conditions were laid down. The details of such appointments are as under :

“Sl.No.Period Working days

1.13.2.91 to 12.5.9189

2.14.5.91 to 10.8.9189

3.13.8.91 to 9.11.9189

4.11.11.91 to 7.2.9289"

3. It is not in dispute that she remained absent for 19 days during the period 20th Janurary, 1992 and 7th February, 1992 as also for a period of 11 days during the period 17.3.1992 to 27.3.1992. Her services were terminated on 7.8.1992. She raised an industrial dispute, whereupon the State of Punjab in exercise of its power under Section 10(1)(c) of Industrial Disputes Act, 1947 referred the said dispute for adjudication of the Labour Court. In the meanwhile, the appellant Corporation has issued an advertisement for filling up some posts on regular basis including the said post of Junior Technician. The respondent, however, did not apply pursuant to the said advertisement.

4. Before the Labour Court, the appellant herein has raised a plea that the appointment of the respondent being ad hoc in nature and furthermore on a contract basis as envisaged under Section 2(oo)(bb) of the Industrial Disputes Act, her services were liable to be terminated in terms thereof. By reason of the impugned Award dated 21.5.2003, the Labour Court directed reinstatement of the respondent with back wages on the premise that she had completed 240 days of work during a period of twelve months immediately preceding the date of termination of her services and in view of the fact that the conditions laid down under Section 25F of the Industrial Disputes Act had not been complied with by the Appellant.

5. The Appellant-Corporation herein, being aggrieved by the said Award, filed a Writ Petition before the Punjab and Haryana High Court which was numbered as W.P.(C) No. 2464 of 2004. By reason of the impugned judgment, the said Writ Petition has been dismissed.

6. Mr. Arvind Nayyar, the learned counsel appearing on behalf of the appellant submitted that having regard to the fact that the services of the respondent could not have been directed to be regularized in the light of the judgments of this Court and furthermore in view of the fact that her appointment had been for a fixed period of 89 days, the impugned judgment cannot be sustained.

7. Mr. Ranvir Singh Yadav, learned counsel appearing for the respondent, on the other hand, urged that the respondent having completed 240 days of service within a period of twelve months preceding the date of her termination and in view of the fact that no compensation had been paid as provided in Section 25-F of the Industrial Disputes Act; the Labour Court and consequently the High Court has rightly directed her reinstatement with full back wages.

8. Section 2 (oo)(bb) of the Industrial Disputes Act reads as under :-

“termination of the service of the workman as a result of the non-removal of the contract of 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.”

9. The respondent was appointed from time to time. Her services used to be terminated on the expiry of 89 days on regular basis. However, it is noticed that she used to be appointed after a gap of one or two days upon completion of each term. Such an action on the part of the Appellant cannot be said to be bona fide. The High

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2006 Supreme(SC) 437

IMPORTANT POINTWhere services of workman were terminated or a regular basis and he had been appointed after a gap of one or two days and completed 240 days in the year, Section 2 (oo) (bb) of Industrial Disputes Act would not be attracted.

Cases Referred (2)

IMPORTANT POINT
Where services of workman were terminated or a regular basis and he had been appointed after a gap of one or two days and completed 240 days in the year, Section 2 (oo) (bb) of Industrial Disputes Act would not be attracted.