Bibhuti Bhusan Pati v. Dy. General Manager, Management of Rourkela Steel Plant, Rourkela
2016-10-24
SANJU PANDA, SUJIT NARAYAN PRASAD
body2016
DigiLaw.ai
JUDGMENT : S.N. Prasad, J. The writ petition has been preferred by the workman assailing the award dated 13.10.1998 passed by the Labour Court in Industrial Disputes Case No.17 of 1995 whereby and where under the reference has been answered against the workman. 2. Brief facts of the case of the workman is that the Fertiliser Plant, one of the units of SAIL/RSP situated in Rourkela, had employed workman to run the plant as well as to take care of the Township, Hospitals, Schools and Guest Houses etc. as is being done by Rourkela Steel Plant (in short RSP). The RSP has not a Guest House titled as “Rourkela House” in which it has engaged regular employee. The management of Fertiliser Plant opened a guest house in the year 1977 but no regular employee was engaged. The management of Fertiliser Plant entered into an agreement with the workman entrusting him the activities of running and managing the guest house. He was also made as a Care-Taker-cum-Choukidar of this guest house by that agreement. On going through the various clauses of that agreement, it can be seen that the job of the Care-taker is a full-time job to guard guest house at night and that too for a meager amount of Rs.150/- per month plus 1% of the lodging charge recovered from the Guests towards remuneration. The agreement was being renewed for year to year till 1992. On 12.7.1992, the workman approached the management to extend the tenure of the contract and to enhance the wage to Rs.750/- per month from that of Rs.300/- per month. The management without any rhyme and reason terminated the workman and informed that his work was no more required. Case of the management is that Mr. B.B. Pati, workman is not a workman under the management. He has never been appointed as the Care Taker-cum-Choukidar as claimed by him in this writ petition rather he was an independent Contractor out and out as per the agreement executed between the parties. It is also stated that the contract is of temporary nature for which it was being renewed by year wise. It is alleged that after expiry of the contract, the workman has abandoned the business and left without information as a result of which the business came to a halt.
It is also stated that the contract is of temporary nature for which it was being renewed by year wise. It is alleged that after expiry of the contract, the workman has abandoned the business and left without information as a result of which the business came to a halt. Thereafter the said quarter was allotted to M/s. PDIL, Sindry at the rate of Rs.800/- per month, in the above circumstances the allegation of the workman is baseless and imaginary story. The workman being aggrieved, has raised the dispute which culminated into a reference which has been answered against the workman which is challenged in this writ petition. The Labour Court after appreciating the stand of the parties has formulated the following issues:- i. “Whether Sri B.B. Pati is a regular employee of Rourkela Steel Plant, or a licensee or contractor ? ii. Whether his service termination w.e.f. 15.7.1992 is legal and justified? iii. If not to what relief he is entitled? iv. Whether the claim of Sri Pati for regularization of service as a Care Taker w.e.f. 10.8.1977 is proper and justified? v. If so, what should be the details?” The issue no.1 pertains to answer with respect to the fact as to whether Sri B.B. Pati, the workman is a regular employee of Rourkela Steel Plant or a licensee or contractor. The Labour Court after taking into consideration the evidence produced before it, specially the agreement, has come to conclusion that he was only an independent contractor to manage the guest house of the management. Accordingly, issue no.1 has been answered in favour of the management and against the workman.
The Labour Court after taking into consideration the evidence produced before it, specially the agreement, has come to conclusion that he was only an independent contractor to manage the guest house of the management. Accordingly, issue no.1 has been answered in favour of the management and against the workman. Issue nos.2 to 5 has been answered taking into consideration the finding given by the Labour Court with respect to Issue No.1 and therefore reference has been answered against the workman which has been challenged on the ground that the Labour Court has not appreciated the agreement made by virtue of which the work has been allotted to him although was for a specific period but it has been extended time to time by virtue of which the workman has been continued till 1992 directly under the control/supervision and management of the RSP and as such stopping him from rendering duties will be said to be retrenchment in terms of the definition of the retrenchment as provided under Section 2(oo)(bb) of the I.D. Act, hence he is liable to be protected as per Section 25F of the I.D. Act. The Labour Court without appreciating this aspect of the matter has answered the reference against him. While on the other hand, case of the management is that the workman has got appoint by virtue of an agreement that the duration of the contract will be for a period of one year from 15.7.1977 to 14.7.1978 with the specific condition that the contract may be terminated by either party giving thirty days notice to the other side and from perusal of the terms and conditions of the contract, it is evident that the petitioner has been allowed to look after the guest house purely by way of a contract for a specific period and as such there is no question of applicability of provision of Section 25F of the I.D. Act, since he is not coming under the definition of retrenchment as has been defined under Section 2(oo) (bb) of the I.D. Act, 1947. We have appreciated the arguments advanced on behalf of the parties and before dealing with the same. Before appreciating the arguments, it is necessary to refer the provisions of Sections 25F, 25B and 2(oo)(bb) of the Industrial Disputes Act, 1947 which has got bearing with the issue involved in this case. Section 25F which speaks as follows:- “25F.
We have appreciated the arguments advanced on behalf of the parties and before dealing with the same. Before appreciating the arguments, it is necessary to refer the provisions of Sections 25F, 25B and 2(oo)(bb) of the Industrial Disputes Act, 1947 which has got bearing with the issue involved in this case. Section 25F which speaks as follows:- “25F. Conditions precedent to retrenchment of workmen- No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until- (a) the workman has been given one month’s notice in writing indicting the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such , wages for the period of the notice; (b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days’ average pay [for every completed year of continuous service] or any part thereof in excess of six months; and (c) notice in the prescribed manner is served on the appropriate Government [or such authority as may be specified by the appropriate Government by notification in the Official Gazette].” From perusal of provision as contained in Section 25F i.e., the conditions precedent to retrenchment of workmen has been stipulated therein and in case of violation of the same, the compensation is to be paid to the workman. The conditions precedent is that the workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until the workman has been given one month’s notice in writing indicating the reasons for retrenchment and the period of notice has expired or the workman has been paid in lieu of such notice, wages for the period of the notice. 8. Continuous service has been defined under Section 25B which speaks as follows:- ”25B.
8. Continuous service has been defined under Section 25B which speaks as follows:- ”25B. Definition of continuous service- (1) a workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service, including service which may be interrupted on account of sickness or authorized leave or an accident or a strike which is not illegal, or a lock-out or a cessation of work which is not due to any fault on the part of the workman; (2) where a workman is not in continuous service within the meaning of clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer- (a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than- (i) one hundred and ninety days in the case of a workman employed below ground in a mine; and (ii) two hundred and forty days, in any other case; (b) for a period of six months, if the workman, during a period of six calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for note less than- (i) ninety-five days, in the case of workman employed below ground in a mine; and (ii) one hundred and twenty days, in any other case. From perusal of provision as contained in Section 25B which stipulates that a workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service, including service which may be interrupted on account of sickness or authorized leave or an accident or a strike which is not illegal, or a lock-out or a cessation of work which is not due to any fault on the part of the workman. 9. Retrenchment has been defined under Section 2(oo)(bb) which speaks as follows:- 2(oo)(bb).
9. Retrenchment has been defined under Section 2(oo)(bb) which speaks as follows:- 2(oo)(bb). “retrenchment” means the termination by the employer of this service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include- (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. From perusal of Section 2(oo) (bb) which stipulates the definition of retrenchment which 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 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. 10. Thus, under the exception clause i.e., under Section 2(oo)(bb), retrenchment cannot be said to be done in the 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 provided that such termination of service has been excluded from the definition of retrenchment. In the light of these legal positions, the case in hand is to be considered. The admitted position in this case is that the petitioner was appointed by virtue of an agreement made on 10.8.1977 between the petitioner and M/s. Hindustan Steel Limited, the validity of which was for a period from 15.7.1977 to 14.7.1978 assigning some work to look after the guest house on fixed remuneration along with one percent of the lodging charges recovered from the Guests towards his remuneration, with the specific condition that the contract may be terminated by either party giving thirty days notice to the other side and in case of breach of any of the terms the company shall have the right to terminate the contract with 24 hours notice. The petitioner claimed that the agreement dated 10.08.1977 had been renewed by virtue of which he has been allowed to continue till 14.07.1978.
The petitioner claimed that the agreement dated 10.08.1977 had been renewed by virtue of which he has been allowed to continue till 14.07.1978. Save and except the agreement dated 10.08.1977, no other documents either has been produced before the Labour Court or before this Court. There is no dispute about the fact that the petitioner has been engaged by virtue of an agreement dated 10.8.1977 for a specific period and as such the Labour Court after taking into consideration this aspect of the matter has come to a specific finding that there is no violation of Section 25F of the I.D. Act, 1947, since the petitioner is not coming under the parameter of the definition of retrenchment as provided under Section 2(oo)(bb) and as such answered the reference against the workman. We after going through the legal proposition and the finding given by the Labour Court found that no infirmity has been committed by the Labour Court while answering the reference. The scope of Article 226 of the Constitution of India with respect to the matter making interference with the award is very limited, only in case of perversity or error apparent on the face of record, High Court sitting under Article 226 can interfere as has been held by the Hon’ble Supreme Court in the case of Syed Yakoob Vrs. K. S. Radhakrishnan and others reported in AIR 1964 SC 477 and M/s.Pepsico India Holding Pvt. Ltd. Vrs. Krishna Kant Pandey, (2015) 4 SCC 270 . We after applying the ratio laid down in the cases referred hereinabove found that the Labour Court has given conscious finding as has been discussed by us hereinabove, hence we decline to interfere with the award. Accordingly, the writ petition is dismissed being devoid of merits.