The Haryana State Agricultural Marketing Board Vs. Subhash Chand & Anr
[2006] Insc 91 (24
February 2006)
S.B.
Sinha & P.K. Balasubramanyan
[Arising
out of SLP (C) No. 11804 of 2004] S.B. SINHA, J :
Leave
granted.
The
respondent was appointed on contractual basis as an Arrival Record Clerk. Such
appointments were made during paddy seasons. The period of first appointment
was from 17.10.1997 to 15.1.1998. Again in the next wheat season he worked
under the appellant from 4.4.1998 to 1.7.1998.
He was
again appointed vide order dated 11.9.1998 and worked from 16.9.1998 till
13.12.1998. The terms and conditions of service as contained in the order dated
11.9.1998 in regard to the appellant are as under:
-
"That the
appointment will be on consolidated wages at he rate of Rs. 1536/- P.M. No
other allowances will be admissible.
-
The period of
engagement will be 89 days.
-
Services can be
terminated/dispensed at any time without assigning any notice and reason and
this will not confer any right for his/her being considered for regular
appointment.
-
He/she will not
entitle to any leave except one day casual leave for each complete month.
-
The unavailed
casual leave shall lapse on the last day of calendar year.
-
His/her
appointment on contract basis shall not confer upon any right for
regularization of appointment.
-
He will be bound
by office secrecy act and shall be required to maintain decorum as is expected
under conduct rules of the Board.
-
His retention on
contract basis shall firm the performance in the job assigned to him. He will
have to join the duty within 100 days from the date of issue of this order
failing which the engagement will stand cancelled automatically." After
termination of his services, the appellant raised an industrial dispute. The
Government of Haryana made a reference thereof purported to be in exercise of
its jurisdiction under Section 10(1) (c) of Industrial Disputes Act, 1947
(herein after referred to as 'the Act') to the Industrial Tribunal-cum- Labour Court, Panipat. It was registered as Reference
No. 383 of 2000. Both parties filed their respective written statements before
the Labour Court.
One of
the disputes related to the total number of days of work completed by the
workman in twelve months prior to the date of termination of his services. The
appellant contended that the respondent had worked for 208 days whereas the
contention of workman was that he had worked for 356 days.
The Labour Court inter alia held that the
termination of services of the workman was in violation of the provision of
Section 25-G of the Act and the management took recourse to unfair labour
policy. A writ petition filed by the appellant herein before the High Court of
Punjab and Haryana being Civil Writ Petition No. 14737 of 2003 was dismissed by
a Division Bench summarily. The appellant is, thus, before us.
Mr. Neeraj
Kumar Jain, learned counsel appearing on behalf of the appellant raised a short
question in support of this appeal. It was contended that the Labour Court as well as the High Court committed
a manifest error in passing the impugned judgment insofar as they failed to
take into consideration the definition of retrenchment as contained in Section
2 (oo) (bb) of the Act. It was urged that the High Court failed to take into
consideration that Chapter VA of the Industrial Disputes Act and consequently
the Fifth Schedule appended to this Act would have no application herein. Mr.
Jain submitted that Labour
Court committed an
illegality in coming to the conclusion that workmen junior to the respondent
had been retrained in service as those employees were surplus employees and
were retained under the directions of the State Government.
Mr. Mahabir
Singh, learned senior counsel appearing on behalf of the respondent, on the
other hand, would contend that in view of the fact that the workmen junior to
the respondent were retained in service the provisions of Section 25-G besides
25-H of the Act had clearly been breached. It was submitted that the action on
the part of the appellant amounts to unfair labour practice and in this behalf
our attention has been drawn to clauses (b) and (d) of Item No. 5 as also
clause (10) of the Fifth Schedule of the Industrial Disputes Act. It was also
submitted that pursuant to the directions of the High Court the respondent has
not yet been reinstated with entire wages and thus this Court should not
exercise its discretionary jurisdiction under Article 136 of the Constitution
of India. 'Retrenchment' has been defined in Section 2 (oo) of the Act to mean:
".2
(oo) 'retrenchment' means the 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 (a)-(b) xxx xxx xxx (bb) termination
of the service of the workman as a result of the non-renewal of the contract of
employment between the employer and the workman concerned on its expiry or of
such contract being terminated under a stipulation in that behalf contained
therein;" It is the contention of the appellant that the respondent was
appointed during the 'wheat season' or the 'paddy season'. It is also not in
dispute that the appellant is a statutory body constituted under the Punjab and Haryana Agriculture Produce
Marketing Board Act. In terms of the provisions of the said Act, indisputably,
regulations are framed by the Board laying down terms and conditions of
services of the employees working in the Market Committees. A bare perusal of
the offer of appointment clearly goes to show that the appointments were made
on contract basis. It was not a case where a workman was continuously appointed
with artificial gap of 1 day only. Indisputably, the respondent had been
re-employed after termination of his services on contract basis after a
consideration period (s).
In Municipal
Council, Samrala v. Raj Kumar [Civil Appeal Nos.299- 300 of 2006] disposed of
on 6th January, 2006, wherein, in the offer of
appointment it was specifically averred that "his services will be availed
till it is considered as fit and proper and necessary. After that his services
will be dispensed with", which was accepted by the employee by affirming
an affidavit to the effect that he would not have any objection, if Municipal
Corporation dispensed with his services and thereby acknowledged its right to
that effect, this Court held :
"Clause
(oo)(bb) of Section 2 contain an exception. It is in two parts. The first part
contemplates termination of service of the workman as a result of the
non-renewal of the contract of employment or on its expiry; whereas the second
part postulates termination of such contract of employment in terms of
stipulation contained in that behalf" [See also Punjab State Electricity
Board. v. Darbara Singh (2006) 1 SCC 121 and Kishore Chandra Samal v. Orissa
State Cashew Development Corpn. Ltd.,Dehnkanal. (2006) 1 SCC 253] The question
as to whether Chapter VA of the Act will apply or not would dependent on the
issue as to whether an order of retrenchment comes within the purview of
Section 2 (oo) (bb) of the Act or not. If the termination of service in view of
the exception contained in clauses (bb) of Section 2(oo) of the Act is not a
'retrenchment', the question of applicability of Chapter VA thereof would not arise.
Central
Bank of India V. S. Stayam & Ors. [1996 (5) SCC 419], whereupon reliance was
placed by Mr. Singh, is itself an authority for the proposition that the
definition of 'retrenchment' as contained in the said provision is wide. Once
it is held that having regard to the nature of termination of services it would
not come within the purview of the said definition, the question of
applicability of Section 25-G of the Act does not arise.
In
State of U.P. V. Neeraj
Awasthi & Ors.
[2006 (1) SCC 667] wherein this Court upon taking into consideration the
provisions of the U.P. Agricultural Produce Markets Board (Officers and Staff
Establishment) Regulations,1984 held that it is not permissible to regularize
the services of the employees although they might have worked for more than 240
days within a period of twelve months preceding such termination In Regional
Manager, SBI V. Rakesh Kumar Tewari [2006 (1) SCC 530] a distinction was made
between the provisions of Sections 25-G and 25-H in the following terms:
"No
conditions of services were agreed to and no letter of appointment was given.
The nature of the respondents' employment was entirely ad hoc.
They
had been appointed without considering any rule. It would be ironical if the
persons who have benefited by the flouting of the rules of appointment can rely
upon those rules when their services are dispensed with." Reliance placed
by Mr. Mahabir Singh upon Fifth Schedule of the Industrial Dispute Act is again
of no assistance. Clauses (b), (d) of Item No. 5 as also clause (10) of the
Fifth Schedule are as under:
"5.
To discharge or dismiss workmen *** *** *** (b) not in good faith, but in the colourable
exercise of the employer's rights; *** *** *** (d) for patently false reasons;
(10)
to employ workmen 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 workmen." No case has been made out for attracting
Clauses (b) and (d) of item No. 5. As regard applicability of clause (10)
thereof, we may notice the meaning of 'status' and 'privilege'.
In P. Ramanatha
Aiyar's Advanced Law Lexicon, 3rd edition, Volume 4, at page 4469, the
expression "status" has been defined as under:
"Status
is a much discussed term which, according to the best modern expositions,
includes the sum total of a man's personal rights and duties (Salmond,
Jurisprudence 253, 257), or, to be verbally accurate, of his capacity for
rights and duties. (Holland, Jurisprudence 88).
The
status of a person means his personal legal condition only so far as his
personal rights and burdens are concerned. Dugganna v. Ganeshayya, AIR 1965 Mys
97, 101. [Indian Evidence Act (1 of 1872), S. 41] In the language of
jurisprudence status is a condition of membership of a group of whicih powers
and duties are exclusively determined by law and not by agreement between the
parties concerned. (Roshan Lal v. Union, 1967 SLR 832)." [See also the
judgment of this Court delivered in B.H.E.L & Anr. v. B.K. Vijay &
Ors., 2006 (2) SCALE 195] The word 'privilege' has been defined, at page 3733,
as under:
"Privilege
is an exemption from some duty, burden, or attendance to which certain persons
are entitled; from a supposition of Law, that the stations they fill, or the
offices they are engaged in, are such as require all their care; that
therefore, without this indulgence, it would be impracticable to execute such
offices, to that advantage which the Public good requires.
A
right or immunity granted as a peculiar benefit; advantage or favour; a
peculiar or personal advantage or right, especially when enjoyed in derogation
of a common right.
Immunity
from civil action may be described also as a privilege, because the word
"privilege" is sufficiently wide to include an immunity. The word
'privilege' has been defined as a particular and peculiar benefit or advantage
enjoyed by a person.
Privileges
are liberties and franchises granted to an office, place, town or manor, by the
King's great charter, letters patent, or Act of Parliament." In view of
the aforementioned definitions of the expressions 'status' and 'privilege' it
must be held that such 'status' and 'privilege' must emanate from a statute. If
legal right has been derived by the respondent herein to continue in service in
terms of the provisions of the Act under which he is governed, then only, the
question of depriving him of any status or privilege would arise. Furthermore,
it is not a case where the respondent had worked for years. He has only worked,
on his own showing, for 356 days whereas according to the appellant he has
worked only for 208 days.
Therefore,
Fifth Schedule of the Industrial Disputes Act, 1947 has no application in the
instant case. In view of the above, the dispensing with of the engagement of
the respondent cannot be said to be unwarranted in law.
For the
foregoing reasons, we are of the opinion that the impugned judgment cannot be
sustained which is set aside accordingly. The Award of the Industrial Tribunal-cum-Labour
Court is set aside.
In the facts and circumstances of the case, the parties shall bear their own
costs.
The
appeal is allowed accordingly.
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