2008 Supreme(Guj) 142

2008 (3) GCD 1969 (Guj)
Hon’ble Mr. Justice H.K. Rathod
State of Gujarat
Versus
Dipak Kumar Madhusudanbhai Gandhi
Special Civil Application No. 5972 of 2002—Decided on 25/04/2008

Point in Issue :
Whether in the facts of the case termination of respondent service without complying with the mandatory requirements of law justified.

Headnote:Head Note :

       Industrial Disputes Act, 1947 (Central Act 14 of 1947) — Sections 2(5), 2-B(2), 25-F, 2(oo)(bb), 2(oo) and 25-B — Constitution of India, 1950 — Article 227 — Termination — Non-compliance with mandatory requirements of Law — Sustainability — Finding of — Labour Court set aside the order of termination of respondent and granted 40% back wages on ground that termination order was made without complying with mandatory requirements of Law — Ld. Counsel for petitioner contended that compliance with mandatory requirement was not necessary in the case because respondent was appointed in a particular project and as project came to an end his services came to an end — He contended that it can not be considered termination under Section 2(oo)(bb) of the Act and the workman is not entitled to the benefit of Section 25-F the Act — Court however considered the provision under Section 2(oo)(bb) but found the same is not applicable — Court opined that said provision apply when employer is able to justify the issuance of periodical appointment otherwise it would mean that the employer is resorting to such provision only with a view to abuse the provision to defeat workman rights and protection available under the mandatory requirements for retrenchment provided in the Act — In the case it is not disputed that the respondent workman was appointed against a clear vacancy and remanded on the post continuously from 1991 to 1994 and in between there was no break of even a day and, therefore, it satisfy the requirement of Section 25(3) of the Act — The alleged periodically orders issued by petition appears to be nothing but mere paper arrangement made by petitioner for defeating rights and claim of workman available under the Act — Labour Court has, therefore, rightly examined the matter and has rightly granted the reinstatement in favour of workman — The Labour Court has not committed any error requiring any interference by the Court.

       Held :

       Section 2(oo) (bb) would apply when employer is able to justify the issuance of periodical appointment on the basis of facts and circumstances which could demand such kind of appointment, otherwise, it would mean that the employer is resorting to such provision only with a view to abuse the provision for getting benefit by creating disadvantageous situation for the workman and also to disentitle him or defeat his rights and protection available under the mandatory provisions of the ID Act, 1947. Therefore, if the employer is unable to justify issuance of such periodical or temporary orders of appointment or the orders of fixed term appointment confined for a particular project, then, same would not attract the provisions of Section 2(oo) (bb) of the ID Act, 1947. Similarly, labour Court has also rightly observed having contradictory stand of petitioner from the very beginning and subsequent extension vide Exh. 49 and 50 which is suggesting that there is some ulterior motive or intention to take benefit or chance so that the workman may not be able to get justice from the labour Court.

       In this case, the petitioner management has not been able to justify it before this Court and not raised such contention before the labour Court but raised before this Court for the first time. It is necessary to consider one important aspect which is not in dispute that the respondent workman was appointed against the clear vacancy. That can be inferred from Exh. 48, letter dated 22.09.1993 in favour of Mr. B.B. Patel who was appointed as Site Engineer at Bavla Point. Even the written statement also suggests the same avermetns as earlier Mr. B.B. Patel whose services were terminated while working as supervisor was directed to be reinstated, therefore, Mr. BB Patel was appointed from 23.09.1993 and therefore, services of the respondent were not extended and in view of that also, it is covered by ‘retrenchment’. Meaning thereby, the post in which the respondent was working was vacant and clear post and on that post respondent remained in service continuously from 1991 to 1994 and in between, there was not a break of even a day and therefore, same is satisfying the requirement of Section 25(B) of the ID Act, 1947. As per the opinion of this court, periodical appointment orders which were issued by petitioner and placed on the record by learned Advocate Mr. H.J. Nanavati is nothing but mere paper arrangement made by the petitioner for defeating the rights and claim of the workman available under the ID Act, 1947 and, therefore, according to my opinion, decisions referred to and relied upon by Mr. H.J. Nanavati are not applicable to the facts of the present case. Labour Court has rightly examined the issue and has rightly adjudicated the matter on the basis of the record before it and has rightly granted the reinstatement in favour of the workman. [Para 10]

       Law Laid Down :

       Term based employment would fall out side the scope of retrenchment so long as the requirement of such fixed period of employment was bona fide.

       Case Law Analysis :

       Hindustan Petroleum Corporation Ltd. vs. Ashok Ranghba Ambre, 2008 (1) Supreme Today 257 [Para 7];; S.M. Nilajkar and Others vs. Telecom District Manager, Karnataka, (II) LLJ 359 [Para 8];; Bennett Coleman and Co. Ltd. vs. Presiding Officer, Labour Court, Patna and Others, 2003 (III) LLJ 981 [Para 9];; Gujarat Agro Industries Corporation Limited vs. Pravinsinh Babubhai Chauhan, 2008 (1) GCD 346 [Para10];; Executive Engineer, District Panchayat, Bharuch vs. Shankarbhai Jivabhai Patel, 2006 Lab IC [Para 10];; Madhya Pradesh Bank Karmachari Sangh (MP) vs. Syndicate Bank 1996 Lab IC 1161 (MP) [Para 10];; Alexander Yesudas Maikel vs. Perfect Oil Seals and IRP, 1995(1) Lab LN 1165 = 1995 Lab LR 777 (Bom) [Para 10];; Management, Malaysian Airlines Chennai versus Presiding Officer, Principal Labour Court, Chennai & Anr., 2007 (5) MLJ 1300 [Para 10];; Haryana State Electronics Development Corporation Ltd. vs. Mamni, AIR 2006 SC 2427 [Para 10];; Union of India & Ors. versus Ramchander & Anr., (2007) 1 SCC (L&S) 439 [Para 10].—Relied on

       Petition Dismissed