Bhogpur
Co-Op Sugar Mills Ltd. Vs. Harmesh Kumar [2006] Insc 779 (10 November 2006)
S.B.
Sinha & Markandey Katju
(Arising
out of SLP (C) No. 17885 of 2005) S.B. SINHA, J.
Leave
granted.
Appellant
is a cooperative society. It is registered under the Punjab Cooperative
Societies Act, 1961. It operates a sugar mill. It is said to be a seasonal
industry. At the beginning of the season, workmen are recruited and they are
retrenched at the end of it. Respondent was appointed as a seasonal workman. He
was appointed on daily wage basis. On or about 14.03.1992, he raised an
industrial dispute in terms of Section 2A of the Industrial Disputes Act, 1947
(for short "the Act") pursuant whereto or in furtherance whereof the
State of Punjab in exercise of its jurisdiction
under Section 10(1)(c) of the Act referred the following dispute to the Labour Court by a notification dated 8.07.1996:
"Whether
termination of services of Sh. Harmesh Kumar workman is justified and in order?
If not, to what relief/ exact amount of compensation is he entitled?" The
Presiding Officer, Labour Court, Gurdaspur opining that the workman has not
been able to establish that he had worked for 240 days held that the respondent
having not been called by the appellant in the subsequent crushing seasons and
also having called his juniors violated the provisions of Section 25-G of the
Act. He, therefore, passed the following award:
"In
the result, in view of my findings on the above issue, I pass an award
directing the respondent to reemploy the workman from the season in which
juniors to him were called and workman was not called. The workman shall also
be entitled to back wages, etc. with all allied and monetary benefits which are
granted to his juniors from their joining when workman was not called" A
writ petition was filed by the appellant herein questioning the legality and/
or validity of the said award and by reason of the impugned judgment a Division
Bench of the High Court rejected the contention raised by the appellant herein
that the provisions of Section 25-G of the Act cannot be said to have any
application in the instant case stating:
"We,
however, find no merit in this argument for the reason that a positive finding
has been recorded by the Tribunal that persons junior to the workman had been
retained and it is also admitted by the Management that they had not offered
any appointment to the respondent on account of pendency of the dispute in
Court. We are of the opinion that had it been the case of the Management that
the exigencies of services did not warrant his re-employment, something could
be said in its favour but this is not the case of the Management. No offer was
made to the workman on account of the pendency of the proceedings before the Labour Court." The fact that the appellant
operates a seasonal factory and the respondent had not been in continuous
service for 240 days during twelve months preceding his termination is not in
dispute.
Contention
of the appellant is that the termination of the respondent's services did not come
within the purview of the term 'retrenchment' as contained in Section 2(oo)(bb)
of the Industrial Disputes Act.
The Labour Court derived its jurisdiction from the
terms in reference.
It
ought to have exercised its jurisdiction within the four corners thereof.
The
principal question which was referred by the State Government was as to whether
the termination of services of the respondent was justified.
The Labour Court was, therefore, not required to go
into the question as to whether the appellant was bound to take the services of
the respondent in all subsequent seasons or not.
We are
not oblivious of the distinction in regard to the legality of the order of
termination in a case where Section 25-F of the Act applies on the one hand,
and a situation where Section 25-G thereof applies on the other.
Whereas
in a case where Section 25-F of the Act applies the workman is bound to prove
that he had been in continuous service of 240 days during twelve months
preceding the order of termination, in a case where he invokes the provisions
of Sections 25-G and 25-H thereof he may not have to establish the said fact.
[See Central Bank of India vs. S. Satyam & Ors.(1996) 5
SCC 419, Samishta Dube vs. City Board, Etawah & Anr. (1999) 3 SCC 14,
Regional Manager, SBI vs. Rakesh Kumar Tewari (2006) 1 SCC 530 and Jaipur
Development Authority v. Ram Sahai & Anr.8Civil Appeal No. 4626 of 2006
decided on 31st October, 2006] However, category-wise seniority is required to
be maintained when different categories of workmen are appointed so as to apply
the principle of 'last-cum-first go'. A seniority list is also required to be
maintained so as to enable the employer to offer services to the retrenched
employees maintaining the order of seniority. The said provisions, however,
would have no application in a case where Section 2(oo)(bb) of the Act is
attracted.
The
said provision reads, thus:
"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) * * * (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;" Termination of services of a workman as a result of non-renewal
of the contract of employment on its expiry or termination of such contract of
appointment under a stipulation in that behalf contained therein would, thus,
not attract the definition of the term 'retrenchment'. [See Municipal Council, Samrala
v. Sukhwinder Kaur, (2006) 6 SCC 516 and Municipal Council, Samrala v. Raj
Kumar, (2006) 3 SCC 81] The issue is squarely covered by a decision of this
Court in Morinda Coop. Sugar Mills Ltd. v. Ram Kishan and Others [(1995) 5 SCC
653] wherein it was opined:
"It
would thus be clear that the respondents were not working throughout the
season. They worked during crushing seasons only. The respondents were taken
into work for the season and consequent to closure of the season, they ceased
to work.
The
question is whether such a cessation would amount to retrenchment. Since it is
only a seasonal work, the respondents cannot be said to have been retrenched in
view of what is stated in clause (bb) of Section 2(oo) of the Act. Under these
circumstances, we are of the opinion that the view taken by the Labour Court and the High Court is illegal.
However, the appellant is directed to maintain a register for all workmen
engaged during the seasons enumerated hereinbefore and when the new season
starts the appellant should make a publication in neighbouring places in which
the respondents normally live and if they would report for duty, the appellant
would engage them in accordance with seniority and exigency of work." Yet
again, recently in Haryana State Agricultural Marketing Board v. Subhash Chand
and Another [(2006) 2 SCC 794], this Court held:
"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 the 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)." [See also Municipal
Council, Samrala v. Sukhwinder Kaur, (2006) 6 SCC 516 and State of Rajasthan v. Sarjeet Singh & Anr., 2006
(10) SCALE 417] For the reasons aforementioned, the impugned judgment cannot be
sustained which is set aside accordingly. The appeal is allowed. No costs.
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