IMPORTANT POINT
If there was no retrenchment under Section 2(oo) read with Section 2(bb) of the ID Act, Section 25H would not apply.

Headnote:Industrial Disputes Act, 1948- Section 2(oo) read with Section 2(bb))-Retrenchment- The mere fact that the appointment orders used the expression "daily wages" does not make the appointment "Casual" because it is the substance that matters, not the form- The contract of appointment consciously entered into by the employer and the employee would, over and above the specific terms of the written agreement, indicates that the employment is short-lived and the same is liable to termination, on the fixed period mentioned in the contract of appointment- There was no retrenchment under Section 2(oo) read with Section 2(bb) of the ID Act. (Paras 10, 12)
        Industrial Disputes Act, 1948- Sections 25G and 25H- Section 25H will apply only if the respondent establishes that there had been retrenchment. (Para 12)
       Facts of the case:
        The respondent’s service was terminated on the expiry of the fixed periods mentioned in the office orders and he had worked only for 54 days.
       Findings of the Court :
        Section 25H will apply only if the respondent establishes that there had been retrenchment. Facts will clearly indicate that there was no retrenchment under Section 2(oo) read with Section 2(bb) of the ID Act. Consequently, Section 25H would not apply to the facts of the case.
       Result : Both appeals allowed.

Judgment :-

K.S. Radhakrishnan, J.

Leave granted.

1. We are concerned in this case with the question whether termination of services of the respondent on the expiry of the contract period would amount to retrenchment within the meaning of Section 2(oo) of the Industrial Disputes Act, 1948 (for short “the ID Act”). We may refer to the facts in Civil Appeal arising out of SLP(C) No.5390 of 2012 for disposal of both the appeals, since the question of law involved in both the appeals is the same.

2. The respondent in Civil Appeal @ SLP(C) No.5390 of 2012 was appointed on daily wages as a helper in the Water Works Department in the appellant Corporation for two fixed periods from 02.05.1988 to 30.06.1988 and 04.07.1988 to 15.07.1988, under two separate office orders dated 19.05.1988 and 01.07.1988. The service of the respondent stood terminated on 15.07.1988 after serving a total period of 54 days. The respondent raised an industrial dispute on 07.12.1989 and the same was referred to Labour Court for adjudication which was registered as Reference (LCB) No.606 of 1989.

3. The Labour Court on 18.10.2003 passed an award holding that the Corporation had violated Section 25G and H of the ID Act by not calling the respondent for work before appointing new workmen. The Labour Court then directed the Corporation to reinstate the respondent with continuity in service. Aggrieved by above-mentioned order the Corporation preferred Writ Petition SCA No.3290 of 2004 before the Gujarat High Court. The High Court vide its judgment dated 12.08.2010 set aside the award of the Labour Court and remanded the matter to the Labour Court for fresh consideration. The Labour Court on 15.11.2010 held that the Corporation had violated the provisions of Sections 25G and H of the ID Act and directed the Corporation to reinstate the respondent with continuity in service with consequential benefits. The Corporation then preferred Writ Petition SCA No.7918 of 2011, which was dismissed by the learned Single Judge vide judgment dated 29.06.2011 against which Corporation preferred LPA No.1275 of 2011 which was also dismissed. Aggrieved by the same the Corporation has preferred this appeal.

4. Shri Jatin Zaveri, learned counsel appearing for the Corporation submitted that the Labour Court as well as the High Court has failed to appreciate the various terms and conditions of appointment and committed a grave error in holding that the Corporation had violated the provisions of Section 25G and H of the ID Act. Learned counsel submitted that going by the terms and conditions of the appointment order would clearly indicate that the provisions of Section 2(oo) and (bb) would apply to the facts of the case, consequently, the respondent cannot be said to have been retrenched and hence the provisions of Section 25G and H of the ID Act would not be attracted.

5. Mr. O.P. Bhadani, learned counsel appearing for the respondent, on the other hand, pointed out that there has been a clear violation of the provisions of Section 25G and H of the ID Act by not reinstating the respondent in service. Learned counsel submitted that the Labour Court has elaborately considered the rival contentions of the parties and rendered a reasoned award which has been affirmed by the learned Single Judge as well as the Division Bench of the High Court and, therefore, calls for no interference by this Court under Article 136 of the Constitution of India.

6. We are of the view that the Labour Court as well as the High Court have completely misunderstood the scope of Section 2(oo), (bb), as well as Section 25G and H of the ID Act. The contract of employment and the terms and conditions contained therein are crucial in the application of the above-mentioned provisions. Facts would clearly indicate that the respondent had worked only for 54 days in two fixed periods and on expiry of the second term his service stood automatically terminated on the basis of the contract of appointment. A reference to the c

Click Here to Read the rest of this document

2013 Supreme(SC) 646

IMPORTANT POINT If there was no retrenchment under Section 2(oo) read with Section 2(bb) of the ID Act, Section 25H would not apply.

IMPORTANT POINT
If there was no retrenchment under Section 2(oo) read with Section 2(bb) of the ID Act, Section 25H would not apply.