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Judgment
Petitioner is the workman, who has challenged award dated 23rd February, 2021. Mr. Jena, learned advocate appears on behalf of petitioner and Ms. Pattanaik, learned advocate, Additional Government Advocate for State (management).
Mr. Jena submits, operational guidelines for Mobile Veterinary Unit (MVU) in Odisha is under Annexure-1. He draws attention to procedure for engagement of Veterinary Surgeon and Livestock Inspector for MVUs. The procedure also provides for engagement of attendants, petitioner having been engaged as such. He submits, his client was retrenched. Impugned award dated 23rd February, 2021 is required to be interfered with. Relied upon procedure is reproduced below.
“Procedure for engagement of Veterinary Surgeon and Livestock Inspector for MVU
The CDVOs will invite applications for engagement of VAS/LI Attendant through display in the office Notice Board of CDVO/SDVO/BDO/Collectorate/other important offices for wide publication.”
Ms. Pattanaik points out from the engagement communication that petitioner had been engaged in outsourcing basis. Fact is there was no employer employee relationship between first party management nos. 1, 2 and 3 and petitioner as found in impugned award. Impugned award dated 23rd February, 2021 contains finding that petitioner cannot be said to have been retrenched as the situation falls within the exception under section 2 (oo) in Industrial Disputes Act, 1947. It appears, the labour Court was referring to exception (bb). She submits, State has taken over the project and decided to outsource procurement of driver-cum-attendant, on the earlier contract for providing service having been discontinued.
We reproduce below a passage from impugned award.
“On the own admission of the workmen that they were engaged under a project/scheme, it can be safely held that the so called termination of service would not amount to retrenchment so as to grant any relief under the provisions of the Act. The refusal/ termination of service of the workmen as alleged, squarely falls within the exception provided U/s. 2(oo) of the Act. In view of the discussion made above, the workmen are not entitled to any relief.”
The labour Court did not specify the exception. Ms. Pattanaik submits, it is exception (bb).
Ms. Pattanaik hands over memo of date with copy served disclosing, inter alia, agreement dated 20th December, 2011 between the Government and the contractor. She demonstrates that the agreement was valid for one year and extendable. She reiterates, by impugned award there was finding of engagement by contract, such contract being of limited period and having had expired.
In reply Mr. Jena relies on view taken by a learned single Judge in the High Court of Judicature, Punjab and Haryana in Balbir Singh v. Kurukshetra Central Co-operative Bank Ltd. (Civil Writ Petition no.778 of 1988 disposed of by judgment dated 18th January, 1989). He relies on paragraph 7. We extract and reproduce a passage therefrom.
“7. ……. No doubt, the intention of the Parliament in enacting Cl. (bb) was to exclude certain categories of workers from the term of retrenchment but there is nothing in this clause which allows an outlet to unscrupulous employers to shunt out workers in the garb of non-renewal of their contract even when the work subsists. This clause as a whole has to be construed strictly in favour of the workman as far as possible as to ensure that the Act is implemented in letter and spirit. If the termination is meant to exploit an employee or to increase the bargaining power of the employer, then it has to be excluded from the ambit of Cl. (bb) and the definition of term “retrenchment” has to be given full meaning. The contractual clause enshrined in Cl. (bb) cannot be resorted to frustrate the claim of the employee against his uncalled for retrenchment or for denying other benefits. It cannot be so interpreted as to enable an employer to resort to the policy of hire and fire and to confer unguided power on the employer to renew or not to renew the contract irrespective of circumstances in which it was entered into or ignore the nature and extent of work for which he was employed.”
Balbir Singh (supra), in our view, is not applicable. There is no dispute that the engagement was through contractor. The contractor had entered into agreement, disclosed by the memo. It was clear stipulation in the agreement that it would be valid for one year and extendable. As such, it was not renewed on the Central project having come to an end and the State having taken up the work. Furthermore, State as employer is entitled to consolidate its resources in requiring the scope of work to be modified to call for engagement of driver-cum-attendant. Petitioners are only attendants. In the circumstances, this Court finds no reason to interfere with impugned award.
The writ petition is dismissed. Interim order passed earlier is vacated.
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