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2017 DIGILAW 141 (MP)

Arjun v. Union of India

2017-01-30

SANJAV YADAV

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JUDGMENT : Mr. Sanjav Yadav, J. 1. With consent of learned counsel for the parties, the matter is finally heard. 2. Award dated 25.08.2011 passed by Central Government Industrial Tribunal-cum-Labour, Jabalpur Court is being assailed by the petitioner vide this petition. 3. The industrial Court was in seisen with reference as to "whether the action of the management of Chief General Manager, Telecom Bhopal, in terminating the services of s/Shri Harnam Singh Pal, Rajaram, Flaz Khan, Mohan Soni, Ratilal, Badulal and Arjun w.e.f. 16.09.93 is justified or not ? If not, to what relief the workmen are entitled for ?" 4. Briefly stated facts are that the workmen were engaged on daily wages as casual labourers on different dates between 1985 to 1988. They were engaged on work of permanent nature in the department of management. That applications on different dates between 23.11.92 to 29.11.92 for regularization were submitted by these workmen. Subsequently, they were denied work with effect from 16.09.1993. Petitioners-workmen raised dispute before Assistant Labour Commissioner to initiate conciliation proceedings and direction to maintain status quo. The conciliation, however, ended in failure and the dispute was referred for adjudication to Central Government Industrial Tribunal-cum-Labour Court. Before Central Government Industrial Tribunal-cum-Labour Court the petitioners-workmen reiterated the stand as they took before the Assistant Labour Commissioner which were denied. The respondent management filed the written statement stating therein that the work order was issued by respective Sub-Divisional Engineer in respective areas and were got executed through the causal labours from the respective local places. It is contended that since the work for which the petitioners were engaged was completed by the contractor and as there was no work available, their services were not continued nor they were held entitled for regularization. 5. Respective parties led their evidence. 6. As the workmen could not establish of being appointed by the respondent, department of telecommunication (now BSNL), the Central Government Industrial Tribunal answered the reference against the workmen. A categorical finding to that effect has been recorded in paragraph 6 by the Tribunal - "6. ... The Union/workmen has adduced three witnesses. The workman Mohan Soni has stated in his evidence that documents are filed in support of the statement of claim and they had worked regularly for more than five years. No documentary evidence is proved by the Union/workmen to substantiate that he had continuously worked for five years. ... The Union/workmen has adduced three witnesses. The workman Mohan Soni has stated in his evidence that documents are filed in support of the statement of claim and they had worked regularly for more than five years. No documentary evidence is proved by the Union/workmen to substantiate that he had continuously worked for five years. In absence of the documents, the oral evidence appears to be not reliable. He has stated at para 6 that his work was for erecting pole and stretching wire and it is done only once. This clearly shows that he was engaged for a fixed work on worker orders as has been alleged by the management. He has further supported the case of the management that now these works are being done by the contractor. This shows that he was not retrenched employee rather his case comes under the provision of Section 2(oo)(bb) of the Industrial Disputes Act, 1947 (in short the Act, 1947). Another Union witness is Shri Ratilal. His evidence is similar to the above witness. He has also supported the case of the management that his work was specific for erecting pole and stretching wire over it and now these works are being done by the contractors. The last witness of the Union is Shri Dadulal. His evidence is similar to other witnesses of the Union. Thus the evidence adduced by the Union/workmen clearly show that they were engaged for specific work of such contract which was being terminated under a stipulation or completion of the works. Their case appears to be come under the provision of Section 2 (oo)(bb) of the Act, 1947." 7. The said finding when is tested on the anvil of material documents on record cannot be faulted with as the petitioner workmen were engaged only for specific work and for a specific term by the agency fixed by the respondents for carrying out some departmental work, no indulgence is warranted. Section 2 (oo)(bb) of the Industrial Disputes Act, 1947 envisages that : "2 (oo)(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;" 8. Section 2 (oo)(bb) of the Industrial Disputes Act, 1947 envisages that : "2 (oo)(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;" 8. Evidently, when the termination of service of a workman is because of non-renewal of the contract of employment between the employer and the workman concerned on its expiry, the same will not tantamount to retrenchment. 9. In this context reference can be had of the decision in Haryana State F.C.C.W. Store Ltd. v. Ram Niwas : (2002) 5 SCC 654 ; wherein, it is held : "11. On a plain reading of the statutory provision it is clear that any termination of service of a workman by the employer for any reason whatsoever comes within the meaning of the expression 'retrenchment' as defined in section 2(oo) of the Act. Further the section further provides certain exceptions to the wide and comprehensive definition of the term 'retrenchment'. The exceptions are : "(1) Termination of appointment inflicted by way of disciplinary action; (2) Voluntary retirement of the workman; (3) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (4) 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; or (5) termination of the service of a workman on the ground of continued ill health." 12. It follows therefore that if the case of termination of the workman comes within any of the exceptions enumerated in the section then the said termination will not be a case of 'retrenchment' within the meaning of section 2(oo). 13. In the case of Uptron India Ltd. v. Shammi Bhan and anr., 1998(6) SCC 538 this Court considering the definition of 'retrenchment' in section 2(oo) observed : (SCC p.548, paras 27-29) "27. The definition of "retrenchment" was introduced in the Act by Act 43 of 1954 with effect from 24.10.1953. Clause (bb) was inserted in the definition by Act 49 of 1984 with effect from 18.8.1984. The definition of "retrenchment" was introduced in the Act by Act 43 of 1954 with effect from 24.10.1953. Clause (bb) was inserted in the definition by Act 49 of 1984 with effect from 18.8.1984. 28. The definition is conclusive in the sense that "retrenchment" has been defined to mean the termination of the service of a workman by the employer for any reason whatsoever. If the termination was by way of punishment as a consequence of disciplinary action, if would not amount to "retrenchment". Originally, there were two other exceptions, namely, (i) voluntary retirement of the workman, and (ii) retirement of the workman on reaching the age of superannuation if the contract of employment contained a stipulation to that effect. 29. By the Amending Act 49 of 1984, two further exceptions were introduced in the definition by inserting clause (bb) with effect from 18.8.1984; one was the termination of service on the ground of continued ill-health of the workman and the other was termination of service on account of non-renewal of the contract of employment on the expiry of the term of that contract. If such contract of employment contained a stipulation for termination of service and the services of the workman are terminated in accordance with that stipulation, such termination, according to clause (bb) would also not amount to "retrenchment". 10. In view whereof, no indulgence is caused. Petition fails and is dismissed. No costs.