Vinod Kumar v. Director, Mahila Bal Vikas Rajasthan, Jaipur
2005-09-06
R.S.CHAUHAN, RAJESH BALIA
body2005
DigiLaw.ai
JUDGMENT 1. - Heard learned counsel for the parties. 2. The preparation of the paper book is dispensed with and the appeal is heard on merit at the request of parties. 3. The petitioner-workman was employed with the respondent through contractor from 18.2.1998 to 31.12.1998 w.e.f. 2.1.1998, the contract of the contractor to execute the work of the principal employer came to an end and along with contract, the services of the appellant-workman were also brought to an end. In other words, the services of the petitioner-appellant, who was employed on the establishment under a contract agreement through the contractor for doing the work of the principal employer was discontinued and that contract of the contractor was executed by the respondents. 4. The termination was made subject matter of dispute by filing the writ petition No. 2632/1999 before the Hon'ble High Court by challenging the case of illegal retrenchment. However, the petitioner was directed to approach the State Government and State Government was in turn directed to consider the petitioner's case for making reference to the Labour Court about termination of services under Section 10 of the Industrial Disputes Act directly. Accordingly, the dispute about the termination brought into effect w.e.f. 1.1.1999 was referred to the Labour Court, Jodhpur. 5. The contentions raised in the workman's claim was that the termination order which amounted to retrenchment was void ab initio as the provisions of Chapter V-A of Industrial Disputes Act, 1947 had not been complied with before terminating the services notwithstanding that he has actually worked for 240 days in 12 calendar months immediately preceding the date of termination of his services. 6. The Department claimed, firstly, that the petitioner was not employed at establishment of the respondent but was an employee of contractor and, therefore, no dispute exists between the Director, Women and Children Welfare Department, Jaipur and Project Director, District Woman and Children Development Authority, Nagaur and secondly, the workman has been appointed through contractor non-applicant No. 3. The contract period was only of one year. On expiry of contract period on 1.1.1999, the workman's services came to an end automatically and, therefore, it was not a case of retrenchment. 7.
The contract period was only of one year. On expiry of contract period on 1.1.1999, the workman's services came to an end automatically and, therefore, it was not a case of retrenchment. 7. Both the contentions found favour with the Labour Court namely that no employer-employee relationship existed between them and that the appointment having been made for fixed term under contract, the termination of services on the expiry of contract did not fall within the definition of retrenchment. Consequently, the claim was rejected. 8. The award dated 21.1.2003 as aforesaid was made subject matter of Civil Writ Petition No. 1922/2004 and the same has been dismissed by learned Single Judge vide judgment under appeal dated 6.7.2004 inter alia on the ground that the appointment being contractual, with the termination of contract, he is not entitled for any relief. 9. Having heard learned counsel for the parties, we are of the opinion that so far as the finding that no employer - employee relationship came into existence between the petitioner-workman and the respondents, appears to be erroneous in view of the definition of workman as amended by State of Rajasthan which includes within the purview of workman's definition under Section 2(s) of the Industrial Disputes Act, 1947 that "any person who is employed in any industry by an employer or by a contractor in relation to execution of contract". Hence, the appellant does fall within the amended meaning of workman employed under principal employer applicable in the State of Rajasthan through the aforesaid amendment brought in Section 2(s) by the Rajasthan Act No. XXXIV of 1958 w.e.f. 1.7.1960. The finding of the Labour Court that the applicant-workman was not the workman of the respondent department, cannot be sustained. 10. However, so far as the second part of the finding is concerned, it is well founded. Since clause 2(bb) was inserted in definition of retrenchment under Section 2(00), the termination of the service of the workman based on contract of employment between the employer and the workman concerned on its expiry or on completion of work for execution, which contract has executed fully, it does not fully result in retrenchment at all so as to invite the relevant provisions of the Industrial Disputes Act. 11.
11. There being no dispute about the fact as is apparent from reading the over-all statement of workman in which he has admitted in cross-examination that he was appointed on the establishment through contractor and the contractor's contract came to an end and his services also came to an end. The termination of services of the workman under contract clearly brings the case of the workman within the exception of the term retrenchment carried out in sub-clause (bb) of clause (oo) of the Industrial Disputes Act, 1947. Since the termination did not fall within the purview of retrenchment, it cannot be said that the condition of valid retrenchment as envisaged under Chapter A of the Act of 1947 have been violated. 12. The appeal is, therefore, dismissed.No order as to costs.Appeal dismissed. *******