IMPORTANT POINT
Where a workman was engaged on contract basis and within a span of 18 months was appointed thrice and discharged thrice, provisions of Section 2(oo)(bb) of Industrial Disputes Act would be attracted on termination of his services.

Headnote:Industrial Disputes Act, 1947 — Sections 2(oo)(b) and 25F — Termination of services of respondent — Whether amounted to retrenchment in violation of Section 25F of the Act — Respondent was engaged on contractual basis at a fixed pay of Rs. 1000/- p.m. and she worked from 8-11-1995 to 17-6-1996 — She was again engaged on contractual basis between 3-9-1996 to 23-5-1997 and then her services were terminated — Labour Court by an Award opined termination was not in conformity with provisions of Section 25F of the Act and directed reinstatement with 25% of backwages — High Court upheld the award — Appeal — Respondent was appointed on contractual basis and appointments were temporary ones and she accepted terms and conditions without demur — Executive Officer had power under the terms of appointment to dismiss her without notice — Section 2(oo)(bb) of the Act was attracted in facts and circumstances of the case — High Court did not consider also the question whether appellant had any vacancy in respect of the post — Impugned judgment was liable to be set aside — Appellant itself before High Court made a proposal to give lump sum compensation in lieu of her appointment — In the interest of justice, Rs. 30000/- to be paid to respondent by appellant.
       Held : The respondent, within a span of about 18 months, was appointed thrice and disengaged thrice. As noticed hereinbefore, she was appointed on a contractual basis. The appointments were temporary ones. She was aware that her services could be terminated without notice. She accepted the terms and conditions of the said offers of appointments without any demur.(Para 7)
       Section 2(oo) of the Act defines retrenchment to mean termination by the employer of service of the workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include :
       “(bb) termination of the service of the workman as a result of the non-renewal 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,..”(Para 8)
       Although, there was no fixed period of contract of employment between the employer and the workman concerned and thus, no question of its renewal on its expiry, but there existed a stipulation in the contract that the Executive Officer has the power to dismiss her without issuing any notice. The question, which now arises for consideration, is whether Section 2(oo)(bb) of the Act is attracted to the facts and circumstances of this case.(Para 9)
       The High Court furthermore did not consider the question as to whether the appellant had any vacancy in respect of the post.(Para 14)
       We, therefore, are of the opinion that the said decisions are applicable in the instant case.(Para 15)
       However, it appears, before the High Court in the review application, the appellant itself had made a proposal to give lump sum compensation in lieu of her reinstatement. In view of that the appellant itself was before the High Court, we are of the opinion that interest of justice shall be met if a sum of Rs. 30,000/- is directed to be paid to the respondent, as was directed in State of M.P. & Ors. vs. Arjunlal Rajak [2006(2) SCALE 610], Nagar Mahapalika (Now Municipal Corpn.) vs. State of U.P. & Ors. [2006(5) SCALE 145] and Haryana State Electronics Development Corporation Ltd. vs. Mamni 2006(5) SCALE 164].(Para 16)

JUDGMENT

S.B. Sinha, J. — Leave granted.

2. The appellant is a municipal council. The respondent was engaged on a contractual basis at a fixed pay of Rs. 1000/- per month by an Office Order dated 6.11.1995. She worked for a period from 8.11.1995 to 17.6.1996. The said Office Order dated 6.11.1995 reads as under :

“Office of the Nagar Council, Samrala (Ludhiana)

No. 588Dated 06.11.1995

Office Order No.

On dated 6.11.1995 vide order dated 6.11.1995 you are appointed as clerk on the contract basis at the fixed rate of Rs. 1000/- per month as per the directions of the Government, it is purely temporary appointment. No one will force against this post. Executive Officer has the powers to dismiss you without issuing any notice. All the terms and conditions issued by the office will be accepted.

Sd/- Executive Officer

Nagar Council, Samrala”

3. She again worked under an offer of appointment on a contractual basis in terms of an office order dated 20.6.1996. For the period between 3.9.1996 and 23.5.1997 she furthermore worked on similar terms and conditions in terms of an offer of appointment dated 20.10.1996. On her services being terminated, an industrial dispute was raised.

4. The Presiding Officer of the Labour Court by an Award dated 11.2.2003 opined that the termination of the respondent from services was not in conformity with the provisions of 25-F of the Industrial Disputes Act, 1947 (‘the Act’, for short). It directed her reinstatement with continuity of service with 25% of the backwages.

5. The appellant herein filed a writ petition before the Punjab and Haryana High Court questioning the correctness or otherwise of the said Award, inter alia, contending that as the appointment of the respondent answers the description of Section 2(oo)(bb) of the Act; the provisions of Section 25-F thereof are not attracted. The said contention of the appellant was rejected stating :

“The Labour Court has also found that there is nothing on the file to show that the work was not available after the date of termination of services of the workman. It has also been accepted by the parties that the services of the workman were terminated without any notice, charge sheet, enquiry or payment of compensation. The Labour Court therefore, held that there has been violation of Section 25 of the Industrial Disputes Act, 1947. However, the workman was ordered to be reinstated with only 25 per cent back wages.”

6. A Review Petition filed by the appellant before the High Court was also dismissed.

7. The respondent, within a span of about 18 months, was appointed thrice and disengaged thrice. As noticed hereinbefore, she was appointed on a contractual basis. The appointments were temporary ones. She was aware that her services could be terminated without notice. She accepted the terms and conditions of the said offers of appointments without any demur.

8. Section 2(oo) of the Act defines retrenchment to mean termination by the employer of service of the workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include :

“(bb) termination of the service of the workman as a result of the non-renewal 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. Although, there was no fixed period of contract of employment between the employer and the workman concerned and thus, no question of its renewal on its expiry, but there existed a stipulation in the contract that the Executive Officer has the power to dismiss her without issuing any notice. The question, which now arises for consideration, is whether Section 2(oo)(bb) of the Act is attracted to the facts and circumstances of this case.

10. We would, in this behalf, may take note of some precedents operating in the field.

11. In Municipal Council, Samrala vs. Raj Kumar [(2006) 3 SCC 81], it was held :

“The appellant is a Municipal

Click Here to Read the rest of this document

2006 Supreme(SC) 716

IMPORTANT POINTWhere a workman was engaged on contract basis and within a span of 18 months was appointed thrice and discharged thrice, provisions of Section 2(oo)(bb) of Industrial Disputes Act would be attracted on termination of his services.

Cases Referred (5)

IMPORTANT POINT
Where a workman was engaged on contract basis and within a span of 18 months was appointed thrice and discharged thrice, provisions of Section 2(oo)(bb) of Industrial Disputes Act would be attracted on termination of his services.