Pillai Vs. M/S. Siemens Ltd  Insc 791 (10 November 2006)
Sinha & Dalveer Bhandari
out of SLP (C) No. 9637 of 2006) S.B. SINHA, J.
has its own Engineering and Field Service department which undertakes jobs of
industrial project installation, erection, commissioning of electrical/
electronic equipments which are supplied by it or the same are directly brought
by its clients at various projects/ sites as per their requirements.
services of Respondent are utilized for the aforesaid work as a contractor
which is a project/site work required to be completed within the stipulated
period, time and quality being the essence of the contract entered into by and
between the parties.
used to engage temporary personnel in the category of skilled, semi-skilled and
unskilled workers. Appellant had been appointed by Respondent on temporary
basis for duration of the project/ site work and on completion thereof his
services used to be terminated.
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.
followed for availing the services of Appellant by Respondent had been that
whenever such contract was obtained and project work started at the instance of
the Head Office, a telegram used to be sent to him for availing his services
whereupon he was asked to join the site office.
letters used to be issued by the said office were in a prescribed proforma, the
relevant portion from a sample copy whereof reads as under:
OF APPOINTMENT FOR TEMPORARY PERSONNEL
Mrs. R. Gangadharan Pillai Roll No. : 133 Local Address: : Room No. 148/4, Indhira
Nagar, Chambur, Bombay-74 Permanent Address: Saraswati Vilasm Ezhlcon P.O. Anitose,
Kerala Date of Birth : 22 years Consolidated salary/ Wages per month : Rs.
200/- Date of Joining : 22.5.78 Type of Employment: Helper Dear Sir, We have
pleasure in appointing you on the terms mentioned above and conditions
stipulated herebelow:- Your services are required for execution of erection job
at F.C.-1 on purely temporary basis for a period of Three month (s) from
22.5.78 to 21.8.78, at the expiry of which your appointment will automatically
stand terminated without any notice, unless the period of appointment is
extended in writing. During the temporary period of your service either party
is at liberty to terminate the appointment without any notice and/ or assigning
any cause or any compensation in lieu thereof" A declaration used to be
given by the employee concerned that the contents thereof had been explained to
him and upon understanding the same he used to put his signature.
us, a chart has been filed to show that Appellant had worked for as little as 4
days in a project upto 365 days in a year.
however, appears that he was temporarily appointed for different projects at Rourkela
Steel Plant, details whereof are as under:
To No. of days worked
1. Rourkela Steel Plant 18.10.1992 31.03.1994
-do- 01.01.1994 27.08.1994 150
-do- 26.09.94 06.04.1996 558
-do- 14.05.1996 10.05.2000 1458
services of Appellant came to an end on 10.5.2000. He filed a complaint
petition before the Industrial Tribunal contending that Respondent herein has
resorted to unfair labour practice within the meaning of Item No.
Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of
Unfair Labour Practices Act, 1971 (for short "the Act").
the Industrial Tribunal, the parties adduced their respective evidences.
deposition, Appellant contended that he had regularly been working in various
projects of Respondent. It was contended that the services of personnel junior
to him had been regularized and despite the fact that in many years he had
worked for 240 days, he used to be appointed for temporary periods. According
to him, the very fact that he had been working continuously since 1978 is
itself an indicator to the fact that the job was perennial in nature.
Industrial Tribunal by an award dated 4.8.2004, however, opined:
as on this date, the Complainant has not been in the employment of the
no question arises of giving any direction to the Respondent company to confer
any status and privileges of permanent employee on the Complainant. Besides if
the Complainant has miserably failed to prove that the break in two
appointments of the Complainant was "artificial break". The appointment
letter placed on file manifest that the engagement of the Complainant was for a
specific period as mentioned therein.
in my considered view, the substantial controversy emerging from the instant
complaint has been in respect of alleged illegality on the part of Respondent
company in terminating his services from 10.05.2000" It further came to
the conclusion that the substantial controversy revolved round the termination
of Appellant's services on 10.5.2000 and, thus, the same is required to be
considered in terms of Item 1 of Schedule IV of the Act and not under Item 9 of
Schedule IV thereof.
may observe that the Complainant could have taken recourse to section 32 of the
M.R.T.U. & P.U.L.P Act, to make prayer before this Court to decide the
controversy pertaining to his alleged illegal termination of service dated
10.05.2000, had his services been terminated by the Respondent company pending
the complaint under items 5,6 and 9 of Schedule IV for redressal of his grievances
of giving permanency in the employment. However, admittedly the Complainant has
approached this Court under said items of unfair labour practice, praying for
permanency after termination of his services w.e.f.
I, therefore, find the instant complaint being highly unsustainable as I find
the substantial controversy in respect of admitted termination of his services
by the Respondent w.e.f. 10.05.2000 for which a special forum viz. Labour Court
has been provided under the M.R.T.U. & P.U.L.P. Act." A writ petition
was filed by Appellant aggrieved by and dissatisfied therewith. The said writ
petition was also dismissed by a learned Single Judge by a judgment and order
dated 8th December,
is well settled by a catena of decisions of this Court as well as of the Apex Court that the project related employees
cannot as a matter of right, demand any status and privileges of permanent
employee. Considering the same merely because the Petitioner has been engaged
from time to time in relation to the projects undertaken by the Respondent
Company, no fault can be found in the impugned order holding that there was no
unfair labour practice on account of such employment and non grant of status
and privileges of permanent employee to the Petitioner" A Division Bench
of the High Court in an intra-court appeal refused to interfere with the
judgment of the learned Single Judge stating:
a reasoned order followed thereafter. The learned Judge of the Industrial Court came to the conclusion that the
unfair labour practices, as alleged by the complainant present appellant, are
not committed. The finding on the issue is given on appreciation of the
evidence by the learned Industrial
Court. After giving
such finding, in paragraph 13 the learned Industrial Judge has observed that
factually the services of the appellant were terminated on 10.5.2000 and,
therefore, unless he seeks and gets reinstatement to the job, he again
complained of an unfair labour practice because the unfair labour practice
committed during the course of the employment. The observations in regard to
jurisdiction, therefore, were completely ancillary, and the learned Industrial
Judge gave a finding that the commission regarding unfair labour practices was
not proved. This order was challenged before the learned Single Judge of this
Court and the learned Judge, on appreciation of the contentions raised,
rejected the writ petition. The learned Single Judge had analysed the order
passed by the Industrial Court and has observed as under:- "The Industrial
Court, after hearing the parties on analysis of the materials on record while
dismissing the complaint, has held that what has been reiterated in the
complaint was that the complainant was engaged at various sites of the respondents
after giving artificial breaks in the service." Then, the learned Single
Judge has given a finding that in such circumstances, there is no question of
adoption of an unfair labour practice and, therefore, declined to interfere
under Article 227 of the Constitution. That being so, the Letters Patent
Appeal, obviously, is not tenable. Even otherwise, we see no fault with the
order impugned" Mr. Colin Gonsalves, learned senior counsel appearing on
behalf of Appellant, in support of this appeal would contend that in the
instant case a skilled workman of a multinational corporation had been kept on
temporary basis for 22 years by giving artificial breaks in service and by
engaging and disengaging him on regular basis. Item 6 of Schedule IV of the
Act, it was submitted, covers work of a regular or perennial nature and yet the
employer appointed Appellant merely on temporary basis. The question of
temporary appointment of a project related work, it was urged, would not arise
period is sufficiently large;
Respondent gets contract on regular basis and number of days for which services
of the employee are taken correspondent to the work of a regular employee is
more than 240 days a year; and
explanation has been offered by Respondent as to why the appointments have to
be of such a nature.
our attention to the evidence produced by Appellant before the Tribunal, it was
submitted that from the statements it was necessary to draw an inference as
regards existence of a critical case and, particularly, in view of the fact
that the juniors to Respondent were made permanent but the same benefit was
denied to him. It was urged that the recuse as regards lack of qualification on
the part of Appellant could not have been a ground to regularize his services
as his experience for a period of 22 years had made up the lack of educational
it was contended that assuming that the termination of the job was valid,
Appellant could not have been denied the benefit of 22 years' of service in the
event it is held that Respondent is guilty of taking recourse to unfair labour
practices within the meaning of the Act.
P.K. Rele, learned senior counsel appearing on behalf of Respondent, on the
other hand, would draw our attention to the chart for the purpose of showing
that Appellant had never been appointed in any continuous job and his services
were taken as and when the same became available.
our attention to the practice and procedure for such appointment, as noticed
hereinbefore, it was submitted that the appointment letters categorically
stated about the nature of job, the period of employment and the fact that on
expiry of the said period, his employment would come to an end.
learned counsel pointed out that not only the legal dues of Appellant had been
paid, he had also been paid compensation which has been accepted by him without
any demur except the provident fund dues and, thus, it was not open to him to
take a different stand before the Tribunal.
Act was enacted not only for recognition of trade unions but also prevention of
unfair labour practices. What is an 'unfair labour practice' has been defined
in Section 26 of the Act to mean all the practices listed in Schedules II, III
and IV. Section 27 of the Act prohibits engagement of an employee by any
employer or union in any unfair labour practice. Section 28 provides for
procedure for dealing with complaints relating thereto.
IV of the Act enumerates general unfair labour practices on the part of the
employers. Clause 6 of Schedule IV of the Act reads as under:
To employ employee as "badlis", casuals or temporaries and to
continue them as such for years, with the object of depriving them of the
status and privileges of permanent employees." 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.
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.
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.
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.
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.
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.
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
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
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.
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.
Siksha Parishad, U.P. v. Anil Kumar Mishra and Others etc. [AIR 1994 SC 1638 :
(2005) 5 SCC 122], this Court has categorically held:
assignment was an ad hoc one which anticipatedly spent itself out. It is
difficult to envisage for them the status of workmen on the analogy of the
provisions of the Industrial Disputes Act, 1947, importing the incidents of
completion of 240 days' work. The legal consequences that flow from work for
that duration under the Industrial Disputes Act, 1947, are entirely different
from what, by way of implication, is attributed to the present situation by way
of analogy. The completion of 240 days' work does not, under that law import
the right to regularisation. It merely imposes certain obligations on the
employer at the time of termination of the service. It is not appropriate to
import and apply that analogy, in an extended or enlarged form here." In
M.P. Housing Board v. Manoj Shrivastava [(2006) 2 SCC 702], this Court held:
is now well settled that only because a person had been working for more than
240 days, he does not derive any legal right to be regularised in service. (See
Madhyamik Shiksha Parishad, U.P. v. Anil Kumar Mishra; Executive Engineer, ZP
Engineering Divn. v. Digambara Rao; Dhampur Sugar Mills Ltd. v. Bhola Singh;
Manager, Reserve Bank of India v. S. Mani and Neeraj Awasthi)" The learned
senior counsel placed strong reliance upon a decision of this Court in Chief
Conservator of Forests and Another v. Jagannath Maruti Kondhare and Others
[(1996) 2 SCC 293] wherein this Court was considering the question of
appointment of a person in the social forestry services. The Bench inter alia
noticing the decisions of this Court in State of Haryana v. Piara Singh [(1992) 4 SCC 118] opined that they are
entitled to regularization of services. Piara Singh (supra) has since been
overruled by a Constitution Bench of this Court in Secretary, State of
Karnataka and Others v. Umadevi [(2006) 4 SCC 1] It may, however, be noticed
that in Chief Conservator of Forests (supra) the employer was the State.
Respondent therein used to be employed at the same place by the Conservator of
Forests for the same purpose year after year and in that factual matrix, it was
have given our due thought to the aforesaid rival contentions and, according to
us, the object of the State Act, inter alia, being prevention of certain unfair
labour practices, the same would be thwarted or get frustrated if such a burden
is placed on a workman which he cannot reasonably discharge. In our opinion, it
would be permissible on facts of a particular case to draw the inference
mentioned in the second part of the item, if badlis, casuals or temporaries are
continued as such for years. We further state that the present was such a case
inasmuch as from the materials on record we are satisfied that the 25 workmen
who went to the Industrial Court of Pune (and 15 to the Industrial Court, Ahmednagar)
had been kept as casuals for long years with the primary object of depriving
them of the status of permanent employees inasmuch as giving of this status
would have required the employer to pay the workmen at a rate higher than the
one fixed under the Minimum Wages Act. We can think of no other possible object
as, it may be remembered, that the Pachgaon Parwati Scheme was intended to
cater to the recreational and educational aspirations also of the populace,
which are not ephemeral objects, but par excellence permanent. We would say the
same about environment-pollution-care work of Ahmednagar, whose need is on the
increase because of increase in pollution. Permanency is thus writ large on the
face of both the types of work. If even in such projects, persons are kept in
jobs on casual basis for years the object manifests itself; no scrutiny is
required. We, therefore, answer the second question also against the
appellants." Our attention was also drawn to Union of India and Others v. Ramchander
and Another [(2005) 9 SCC 365] wherein again engagement of the workman on a
regular basis for a period of 89 days on each occasion was held to be
impermissible in law stating:
respondents were appointed against casual labourers but nevertheless they
continued in service for four spells and that too their reappointments were
made immediately within a few days of termination on completion of 89 days.
shows that sufficient work was available with the employer and had there been
no termination on completion of 89 days, they would have completed 240 days of
continuous employment. In that view of the matter the appellants had violated
Section 25-G of the Industrial Disputes Act. We do not find any error or
illegality in the decision rendered by the Division Bench. We direct the
appellants to re-employ the respondents as daily-wagers" In that case,
this Court did not lay down any law having universal application. Directions
were issued in the facts and circumstances of the case. It is worthwhile to
note that this Court did not direct regularisaton of services of the workman
but merely directed Appellants therein to reemploy Respondents as daily wagers.
The said decision, therefore, does not have any application in the instant
again, reliance has been placed on Haryana State Electronics Development
Corporation Ltd. v. Mamni [2006 5 SCALE 164 : (2006) 9 SCC 434] wherein having
regard to the fact situation obtaining therein the action on the part of the
employer to terminate the services of an employee on regular basis and
reappoint after a gap of one or two days was found to be infringing the
provisions of Section 25-F of the Industrial Disputes Act.
this case the services of the respondent had been terminated on a regular basis
and she had been re-appointed after a gap of one or two days.
course of action was adopted by the Appellant with a view to defeat the object
of the Act. Section 2(oo)(bb) of the Industrial Disputes Act, 1947, therefore,
is not attracted in the instant case." Unlike the Act, there is no
provision for prevention of unfair labour practices under the Industrial Disputes
Act. The view of the High Court as upheld by this Court, merely negatived a
contention that such appointment came within the purview of Section 2(oo)(bb)
of the Industrial Disputes Act.
Court noticed various decisions rendered by it as regards payment of backwages
and in stead and place of reinstatement in service, compensation was directed
to be paid.
Nath Chaudhary and Others v. Abahi Kumar and Others [(2001) 3 SCC 328] wherein
again reliance has been placed by the learned counsel, has no application in
the facts and circumstances of this case.
therefore, do not find any reason to differ with the findings of the High
may, however, notice that this Court by an order dated 12.5.2006 observed:
is seen from the papers placed before us that the worker, the petitioner
herein, was in employment with the respondent M/s. Siemens Ltd. from 22/5/1978 to 10.5.2000. The chart has also been placed before
us showing the order of appointment, period of work, days worked and total days
in a year. It is seen from the Chart that the petitioner was appointed on
several times and terminated on a number of occasions with some break. The
petitioner was terminated from service on 10.5.2000. Since the petitioner was
in employment with the respondent herein from 1978 to 2000, we feel that the
Management may reconsider the plea of the petitioner on sympathetic grounds and
provide employment in the same or different project. The petitioner will not
claim any back wages if the Management provides some suitable employment in any
of the projects. The learned counsel for the Management, respondent herein,
submits that he will ascertain from the respondent and report to this Court
after summer vacation." The learned counsel appearing on behalf of Respondent,
however, states that it is not possible for his client to offer any employment
to Appellant as it has not been executing any contract job itself any more.
to it, it is not economically viable to appoint an employee on permanent basis
and the work is now depleting. Our attention was further drawn to the following
statements made in this behalf:
& Field Services Department has since discontinued engagement of direct
workmen of the profile of the Petitioner at project site/s as an outcome of
re-engineering process and has started outsourcing the said jobs in view of the
competitive advantage in terms of economy of operation and flexibility it
offers. Also in view of the complexity involved in execution of the project
execution job combined with the demands of client demanding engagement of
personnel with formal qualification including the higher qualification viz.
DEE, NCTVT, it is not possible for the Company to engage people of the
Petitioner's profile anymore." Mr. Rele, learned senior counsel, however,
submitted that although Appellant had been engaged on contract basis,
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. An affidavit in
this behalf has been filed before this Court stating:
stated in the counter affidavit that the Engineering & Field Services
Department of the company has since discontinued engagement of direct workmen
of the profile of the petitioner at the project sites and that the Company has
started outsourcing the said jobs, therefore, I talked to M/s. JT Engineering,
proprietor Mr. John Thomas, having its office at Standard CHS, 301, A Wing,
Plot No. 394, Lokmanya Nagar, Panvel Pin 410206 one of our contractors, who are
handling the work of installation/ erection of equipment currently at Enercon
Ltd., Windfarm Project at Ahmednagar, Maharashtra and the said contractor has
agreed to engage the petitioner at this site viz Enercon Ltd., Ahmednagar, Maharashtra.
The said contractor has further agreed to pay the following emoluments to the petitioner
Basic Pay Rs. 7500/- pm
Allowances Rs. 2500/- pm Total = Rs. 10000/- pm"
therefore, while dismissing the appeal must express our satisfaction that
Respondent has been able to provide some succour to Appellant.
the views we have taken, we are of the opinion that there is no merit in this
case. The appeal is dismissed. No costs.