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2006(8) Supreme 254
SUPREME COURT OF INDIA
(From Rajasthan High Court)
S.B. Sinha and Dalveer Bhandari, JJ.
State of Rajasthan—Appellant
versus
Sarjeet Singh & Anr.—Respondents
Civil Appeal No. 4551 of 2006
(Arising out of SLP (C) No. 23840 of 2005)
Decided on 19-10-2006
Counsel for the Parties :
For the Appellant : Kumar Kartikey (for Aruneshwar Gupta), Advocate.
For the Respondents : S.N. Trivedi, D.P. Mukherjee and Mrs. Nandini Sen, Advocates.
Held : The Scheme for supplying water in the villages was a joint Scheme of the State of Rajasthan through Public Health and Engineering Department and the Gram Panchayat. There is nothing on records to show that Respondent No. 1 was appointed by the State. It is not in dispute that he was initially appointed for a period of six months and that too by the Sarpanch Gram Panchayat. Pursuant to or in furtherance of the Scheme, the Public Health and Engineering Department might have released payments of his salary but the same would not lead to the conclusion that the relationship of an employer and employee came into being. Furthermore, Respondent No. 1 was appointed for a fixed period. His services might have continued but it appears that the same was to remain in force till the Scheme was completed. (Paras 6 and 7)
It is a case which attracts clause (bb) of Section 2(oo) of the Industrial Disputes Act.(Para 9)
It is now well settled that although the Labour Court possesses discretionary jurisdiction in moulding the relief in terms of Section 11-A of the Industrial Disputes Act, the power thereunder must be judicially exercised. Respondent No. 1 herein was appointed under a Scheme. He was appointed for a specific purpose. The fact that his initial appointment was for a period of six months is not disputed. The concept of there being dual employer although may not be unknown in industrial jurisprudence but the Labour Court, in our opinion, misdirected itself in holding that the termination of his services by Appellant was illegal being in violation of Sections 25-G and 25-H of the Industrial Disputes Act. If the Gram Panchayat was in management of the Scheme, the employer would be the Panchayat and not the State. In fact, Respondent No.1 herein impleaded both of them as parties. The learned Labour Court and consequently the High Court failed to consider this vital aspect of the matter.(Para 15)
In terminating the services of Respondent No. 1, we would assume that violation of Sections 25-G or 25-H occurred (although there is no factual basis therefor), but in any event, the same would not mean that the Labour Court should have automatically passed an award of reinstatement in service with back wages. We, however, although ordinarily would have set aside the impugned award and consequently the judgment of the High Court; in exercise of our jurisdiction under Article 142 of the Constitution of India, we direct the State to pay a sum of Rs. 30,000/- to Respondent No. 1. Such payment should be made within eight weeks from date failing which the same shall carry interest at the rate of 9% per annum. The appeal is allowed with the aforesaid directions.(Para 17)
JUDGMENT
S.B. Sinha, J.—Leave granted.
2. The State of Rajasthan made a Scheme for supply of water in the villages known as "Jal Pradyot Yojna". The State was to contribute 50% of the total costs whereas the rest 50% was to be borne by the Gram Panchayat. Pursuant to or in furtherance of the Scheme, the Gram Panchayat of Indragarh employed several persons including Respondent No. 1 herein as a pump driver. He was initially appointed for a period of six months. The term of his appointment was extended from time to time. The total period during which Respondent No.1 remained employed was from 19.9.1996 to 7.11.1997. The Scheme was to be completed upto 7.11.1997. As the Scheme came to an end, the services of Respondent No. 1 were terminated. He filed an application for his regularization of his services as a pump driver before the Labour Welfare and Conciliation Officer, Hanumagarh. In reply to the notice issued by the said authority, the Public Health & Engineering Department of the State inter alia contended that Respondent No. 1 had never been appointed by it and in fact was appointed by the Sarpanch of the Gram Panchayat, Indragarh.
3. An industrial dispute was raised by Respondent No. 1 herein by filing an application before the Industrial Court. By an award dated 9.5.2002, it was held that while terminating the services of Respondent No. 1 herein, the mandatory requirements of Section 25-G and 25-H of the Industrial Disputes Act were not complied with and consequently an award of reinstatement with continuity of service was passed by the Labour Court. Respondent No. 1 herein, however, was declared to be entitled to only 30% of the back wages. The Labour Court while making the aforementioned award arrived at the following findings:
(i)Respondent No. 1 herein had worked for a period of 13 months and 18 days and the Gram Panchayat as well as the Department made payment of his wages.
(ii)He had worked for more than 240 days. As his services had been terminated by a written notice, statutory provisions of Sections 25-G and 25-H of the Industrial Disputes Act had not been complied with.
4. A writ petition filed by Appellant herein was dismissed by a learned Single Judge of the High Court opining :
"It is not in dispute that the workman had worked for more than 240 days, as he had worked from 19.9.1996 to 7.11.1997. Learned counsel argued that the workman was appointed for a fixed term, and, therefore, his removal does not amount to retrenchment in view of the provisions of Section 2(oo)(bb) of the Industrial Disputes Act. However, learned counsel for the Petitioner could not point out any document whereby the requirements of Section 2(oo)(bb) may be established."
5. A Division Bench of the High Court in an intra-court appeal affirmed the said finding.
6. The Scheme for supplying water in the villages was a joint Scheme of the State of Rajasthan through Public Health and Engineering Department and the Gram Panchayat. There is nothing on records to show that Respondent No. 1 was appointed by the State. It is not in dispute that he was initially appointed for a period of six months and that too by the Sarpanch Gram Panchayat. Pursuant to or in furtherance of the Scheme, the Public Health and Engineering Department might have released payments of his salary but the same would not lead to the conclusion that the relationship of an employer and employee came into being.
7. Furthermore, Respondent No. 1 was appointed for a fixed period. His services might have continued but it appears that the same was to remain in force till the Scheme was completed.
8. We may in the aforementioned backdrop notice the definition of retrenchment as contained in Section 2(oo)(bb) of the Industrial Disputes Act, which is in the following terms:
2(oo) "Retrenchment" means termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include-
*********
"(bb)
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