Nilesh M. Mahadeshwar vs Presiding Officer, Central Government Industrial Tribunal No. 1, Mumbai and another

S.A. Bobde, J.—The Petitioner has challenged the award dated 1.12.2005 of the Central Government Industrial Tribunal No. 1, Mumbai, holding that the action of the Seamen''s Provident Fund Commissioner in terminating the Petitioner''s service is legal and justified.

The Petitioner was employed as a Junior Assistant with effect from 25.4.1994. The appointment order stated that his appointment was purely provisional for a period of six months and conditional upon: (i) showing aptitude to work; (ii) punctuality in attendance; and (iii) devotion to duties. The Petitioner''s services were liable for termination at any time without assigning any reason. The period of six months was to expire on 24.10.1994. His services were terminated with effect from 21.10.1994 i.e. three days before the specified term.

The Petitioner prayed for a reference before the appropriate Government. The Government rejected his prayer, inter alia, on the ground that the request was delayed and he had not completed 240 days. He, therefore, approached this Court. In Nilesh M. Mahadeshwar v. Union of India and Anr. 2003 (3) CLR 854 a Division Bench of this Court held that the Government could not have refused to refer the dispute since it existed and merely because he had not completed 240 days, it could not be said that the dispute could not be referred since the dispute was triable u/s 25H of the Industrial Disputes Act, 1947, hereinafter referred to as the "Act", even in respect of a workman who has not completed 240 days. After the order of this Court, the Central Government referred the matter to the Industrial Tribunal which decided the same by the impugned award.

The Central Government Industrial Tribunal No. 1 has rejected the Petitioner''s case on the ground that the Petitioner was employed in a temporary capacity for a fixed period. His services are not liable to be terminated at any time without assigning any reason. In the circumstances, the termination did not amount to retrenchment by virtue of Section 2(oo)(bb) of the Act and the provisions of the Act which deal with retrenchment did not apply to the Petitioner''s case.

Mr. Sawant, the learned Counsel for the Petitioner, challenged the award of the Industrial Tribunal on the ground that the Industrial Tribunal has committed an error of law in not treating the Petitioner''s termination as retrenchment. According to the learned Counsel, the Industrial Tribunal ought to have held that the Petitioner''s termination was without following the procedure prescribed u/s 25-F of the Act. No notice or one month''s salary in lieu of notice was given and that, in any case, the act of not re-employing the Petitioner was contrary to Section 25-H of the Act since others had been employed after the Petitioner''s termination. It was also contended by Mr. Sawant that the provisions of the Model Standing Orders framed under the Industrial Employment (Standing Orders) Act, 1946, in particular Standing Order Nos. 2 and 13 apply, as a result of which the Petitioner''s services could not have been terminated without one month''s notice in writing with reasons or wages in lieu thereof. The contention advanced before this Court were also advanced before the Industrial Tribunal. The Industrial Tribunal held that the Petitioner''s appointment was for a fixed period and clearly governed by Clause (oo)(bb) of Section 2 of the Act and, therefore, Section 25-F did not apply. The Industrial Tribunal relied on the judgment of the Supreme Court in M. Venugopal Vs. The Divisional Manager, Life Insurance Corporation of India, Machilipatnam, Andhra Pradesh and another, wherein the Supreme Court held that the employer could terminate the service in terms of the letter of appointment unless it was a colourable exercise of power. Having regard to the condition in the Petitioner''s appointment letter that the services could be terminated at any stage without assigning any reason, the Industrial Tribunal applied the ratio of the decision of the Supreme Court in Escorts Limited v. Presiding Officer, 1997 (2) SCC 521 wherein it was held that such a termination would not amount to retrenchment and did not apply the provisions of Sections 25-F and 25-G of the Act. The learned Counsel for the Petitioner relied on a decision of the Supreme Court in Central Bank of India Vs. S. Satyam and others, . That case has no application to the present case since that case involves the services of a workman who has been in continuous service of not less than one year. In such case, the Supreme Court observed that Section 25-F would apply to the retrenchment of a workman who has been in continuous service of less than one year.

The learned Counsel for the Petitioner next relied on the decision of the Delhi High Court in Gopal v. MDC and Anr. 2003 (3) CLR 1016 (Del.). The Delhi High Court relied on the decision of the Supreme Court in Samishta Dube Vs. City Board, Etawah and Another, , took the view that it cannot be said that the workmen who had not completed 240 days of service had no industrial rights under the Act and, therefore, held that Section 25-G was applicable in such a case. That case has no application to the facts of the present case. The Petitioner has not established any breach of Section 25-G to the effect that he was not the last person to be employed in that category. In any case, as observed earlier, there is a clear and cogent finding of the Industrial Tribunal that the termination of the Petitioner''s services does not amount to retrenchment. That finding is a valid finding and Section 25-G would have no application.

It was next contended by the learned Counsel for the Petitioner, relying on the decision in S.M. Nilajkar and Others Vs. Telecom, District Manager, Karnataka, , that the termination of the Petitioner''s services could be said to be retrenchment because the Respondent has not shown that he was appointed for a project which came to an end simultaneously with the termination of his services. That case greatly differs in facts from the present case. There the employer had contended that the workmen were engaged as casual workers in a project. He had apparently not adduced any evidence to prove in support of the contention and further that the project had come to an end. In the circumstances, the Supreme Court held that the termination of service of a workman engaged in a scheme or project may not amount to retrenchment within the meaning of Sub-clause (bb) subject to the following conditions being satisfied:

(i) that the workman was employed in a project or scheme of temporary duration;

(ii) the employment was on a contract, and not as a daily-wager simpliciter, which provided inter alia that the employment shall come to an end on the expiry of the scheme or project; and

(iii) the employment came to an end simultaneously with the termination of the scheme or project and consistently with the terms of the contract;

(iv) the workman ought to have been apprised or made aware of the abovesaid terms by the employer at the commencement of employment.

For the reasons stated above, the reliance of that case is misplaced.

It was lastly contended by Mr. Sawant that the termination was in violation of Model Standing Order No. 13. For terminating the service of a workman, a notice of one month in writing with reasons or wages in lieu thereof shall be given by the employer. There is no merit in this contention in view of that very Standing Order which provides that no notice of termination of employment is necessary in case of temporary and badli workmen. It is clear that the Petitioner was employed on a temporary basis i.e. of an essentially temporary nature likely to be finished within a limited period in accordance with the order of appointment. There is no material to show that the work in which the Petitioner was appointed was not likely to be finished within a limited period. The Petitioner was appointed as a Junior Assistant in the Accounts Department. From the fact that accounts continued, it cannot be inferred that the work for which the Petitioner was appointed also continued.

In this view of the matter, there is no merit in the challenge to the award which does not suffer from any error of law apparent from the record. The writ petition is, therefore, dismissed. The rule shall stand discharged.