Municipal Council, Shahpura, Dist. Mandla vs State Labour Court, jabalpur and Another

Arun Mishra, J.

Petitioner/Municipal Council, Shahpura is aggrieved by the award passed by the Labour Court on 21-9-1990 directing reinstatement of respondent No. 2 along with back wages.

The case set up by the workman was that he was working as Watchman with Municipal Council, Shahpura, District-Mandla with effect from 15-6-1979 and continued to render service till 5-1-1988. Without service of any notice, without payment of retrenchment compensation, his services were dispensed with. It was in utter violation of principles of natural justice. No enquiry was conducted.

The stand of the Municipal Council was that workman was employed on daily wage basis. His services were dispensed with on 5-1-1988 on being objected to by the Deputy Director, Urban Administration. Workman was not entitled for retrenchment compensation. However, the factum of continuous service was not denied in the written statement filed on behalf of Municipal Council.

Workman examined himself and had stated that he had worked for more than 240 days in a preceding year and as a matter of fact was in continuous service. He was taken in service on 15-6-1979. It was submitted that workman was not regularly selected; as such he had no right to continue in service. He was working on contractual basis; hence it cannot be said that he was retrenched within the purview of section 2(oo) (bb) of the Industrial Disputes Act (for short ''the Act'').

This Court considered the question whether an invalid appointment is one of the exceptions mentioned in the definition of "retrenchment". In Rajesh Kumar and Others Vs. State of M.P. and Others, , following the decision of the Constitution Bench of the Supreme Court in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh Vs. Presiding Officer, Labour Court, Chandigarh and Others, wherein it was laid down that while considering the precise question whether the expression "retrenchment" in section 2(oo) has to be interpreted in its narrow, natural and contextual meaning or in its wider literal meaning, has negatived the contention of the employer and laid down that the definition of "retrenchment" in section 2(oo) means 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 as this is expressly excluded by the definition, this Court held that:-

Therefore, in view of the above discussion, the contention that the appointment of the petitioners was not in accordance with the Rules, is not available to the respondent/Bank; as a consequence of that the orders of termination of petitioner''s services and the notice are void and have to be quashed and are hereby quashed. The petitioners shall continue in their employment and will be entitled to all ancillary benefits.

Now, left with the submission of Shri Roman that, in case this Court holds the termination of petitioners as void because of non- compliance of section 25-F, the respondent/Bank be allowed to pass appropriate fresh orders, as the employees are surplus and there are no vacant posts for the petitioners. On this submission, we need not say anything, as said earlier that we have not expressed any opinion on the various contentions raised by the counsel for the parties, and simply struck down the order of termination for non-compliance of the prerequisites of section 25-F. Therefore, it is up to the Bank to consider and take appropriate action, if available, in accordance with law.

Thus, the submissions raised by learned counsel for the petitioner stand answered in the decision of Rajesh Kumar (supra) and it is irrelevant that how the entry was made when employee has been retrenched within the perview of section 2(oo) and case is not falling in an exception and removal is not based on misconduct.

In Iftikar Ahmed vs. Municipal Council Ambah, 1992 (1) MPJR 104, a Division Bench of this Court held that definition of "retrenchment" as given in section 2(oo) of the Act is wide enough and comprehensive to include all types of terminations of service unless the termination falls within any of the excepted categories mentioned therein.

It is not in dispute that the petitioner had completed more than 240 days in a preceding year and as a matter of fact was in continuous service with effect from 1979 till date of his removal. It is not the stand, taken in the written statement that respondent No. 2 was not in continuous service as required u/s 25-B of the Act. Thus, the workman could only be retrenched after compliance of section 25-F of the Act.

Learned counsel for petitioner further submits that it was case of day to day employment and everyday the employment was coming to an end. As such it cannot be said to be a case of retrenchment as daily wage employee has no right beyond the day to continue in the service. Every day has to be treated as an independent contract.

The submission is expressly contrary to the provisions contained in section 25-B of the Act, and umpteen number of decisions of this Court and Apex Court. If a workman has completed 240 days in one calendar year, even when he was employed on daily wages, he has statutory protection under Industrial Disputes Act and his services cannot be dispensed with without compliance of section 25-F of the Act which is a welfare legislation is the view taken in Dhari Gram Panchayat Vs. Saurashtra Mazdoor Mahajan Sangh and Another, and in Azam Hussaini vs. The Andhra Bank Ltd. 1995 (1) SLR 706.

Next submission raised is that the petitioner was over age at the time of appointment, as such he was not required to be paid retrenchment compensation. This submission is repelled in view of the decision of Rajesh Kumar (supra).

I find no merit in the writ petition. The same is dismissed. Cost on parties.