2006 Supreme(SC) 936

2006(9) Supreme 495
SUPREME COURT OF INDIA
(From Bombay High Court)
S.B. Sinha and Dalveer Bhandari, JJ.
Gangadhar Pillai - Appellant
versus
M/s. Siemens Ltd. - Respondent
Civil Appeal No. 4769 of 2006
(Arising out of SLP (C) No. 9637 of 2006)
Decided on 10-11-2006
Counsel for the Parties :
For the Appellants : Colin Gonsalves, Sr. Advocate, Ms. Anuradha Singh and Ms. Jyoti Mendiratta, Advocates.
For the Respondents : P.K. Rele, Sr. Advocate, Rajinder Dhawan, Ms. Safali Dhawan and P.N. Jha, Advocates.

IMPORTANT POINT
In cases of project employment where services of employees engaged on terms would come to an end on completion of the period of contract, it cannot be said that the act of the employer in terminating the services of such employees was actuated by any malice.

Headnote:(i) LABOUR LAW - Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 - Sections 26 and 27 - Industrial Disputes Act, 1947 - Sections 2(oo)(bb), 25-F - Unfair labour practice - Only because an employee has been engaged as a casual or temporary employee or that he had been employed for a number of years - Employer does not have any statutory liability to give permanent status to an employee on completion of a period specified - Burden to prove that the employer resorted to unfair labour practice is on workman - Services of appellant were utilised for project/site work as respondent undertakes jobs of industrial project installation etc. - Respondent used to engage temporary personnel in the category of skilled, semi-skilled and unskilled workers - Appellant used to be employed almost on a regular basis since 1978 - His services were availed by respondent not only for its various projects in India but also in Iraq - Services of appellant came to an end on 10.5.2000 when he filed a complaint petition - Whether High Court was justified in dismissing appellant’s petition holding that there was no unfair labour practice on account of such employment - (Yes) - Respondent was not averse to using its good office with the contractors to see that he is engaged by it on the site where work is going on.

       Held : The question as to whether an employee had intermittently been engaged as casual or temporary for a number of years is essentially a question of fact. The issue as to whether unfair labour practices had been resorted to by the employer or not must be judged from the entirety of the circumstances brought on records by the parties.(Para 23)

       Only because an employee has been engaged as a casual or temporary employee or that he had been employed for a number of years, the same by itself may not lead to the conclusion that such appointment had been made with the object of depriving him of the status and privilege of a permanent employee. Unlike other statutes, the employer does not have any statutory liability to give permanent status to an employee on completion of a period specified therein. What is, therefore, necessary to be considered for drawing an inference in terms of the said provisions would be to consider the entire facts and circumstances of the case.(Para 24)

       A finding of fact has been arrived at, keeping in view the nature of engagement offered to Appellant by Respondent, by the Tribunal. The burden to prove that Respondent resorted to unfair labour practice indisputably was on the workman. There had been breaks in service but then it has rightly been held that the same were not artificial ones. Requirement to employ employees on a temporary basis is writ large on the face of the nature of the project undertaken by Respondent. There was nothing on record to show that it had been getting contract on regular basis. We have perused the charts filed by the parties herein wherefrom it appears that the contract awarded in favour of Respondent by its various clients had not only been in different parts of the country but also outside the country. It has also not been disputed before us that although the name of Appellant used to be recommended by the Head Office of Respondent but for employing him, a telegram used to be sent from the site office, in response whereto he would report at the place specified in the telegram and would be offered appointment in the prescribed proforma as noticed supra.(Para 25)

       The period of employment had all along been commensurate with the period of work undertaken by Respondent under the respective contracts. It may be a small contract or it may be a big one. Period of contract in each case was indeed bound to be different. Each site office of Respondent – Company is also a separate establishment.(Para 26)

       It has furthermore not been denied or disputed that services of the employees engaged on such terms would come to an end on completion of the period of contract. Such retrenchment would come within the purview of Section 2(oo)(bb) of the Industrial Disputes Act. Once the period of contract was fixed and the same was done keeping in view the nature of job, it cannot be said that the act of the employer in terminating the services of Appellant was actuated by any malice. Such an act on the part of the employer cannot be said to have been resorted to for defrauding an employee. The object of such temporary employment was bona fide and not to deprive the concerned employee from the benefit of a permanent status. We, having regard to the fact situation obtaining herein, cannot infer that the findings of the Tribunal as also the learned Single Judge of the High Court were manifestly erroneous warranting exercise of our extraordinary jurisdiction under Article 136 of the Constitution of India.(Para 27)

       (ii) LABOUR LAW - Industrial Disputes Act, 1947 - Section 2(oo), 25-F - Regularization - It is not the law that on completion of 240 days of continuous service in a year, the concerned employee becomes entitled to for regularization of his services and/or permanent basis - Concept of introducing period of 240 days in a year.

       Held : It is not the law that on completion of 240 days of continuous service in a year, the concerned employee becomes entitled to for regularization of his services and/ or permanent status. The concept of 240 days in a year was introduced in the industrial law for a definite purpose. Under the Industrial Disputes Act, the concept of 240 days was introduced so as to fasten a statutory liabilities upon the employer to pay compensation to be computed in the manner specified in Section 25-F of the Industrial Disputes Act, 1947 before he is retrenched from services and not for any other purpose. In the event a violation of the said provision takes place, termination of services of the employee may be found to be illegal, but only on that account, his services cannot be directed to be regularized. Direction to reinstate the workman would mean that he gets back the same status.(Para 28)