P. Shanmuganathan vs The Registrar, Tamil University and Others

AR. Lakshmanan, J.—This writ appeal is directed against the Order of a learned single Judge of this Court, dated 25.2.1994 in W.P. No.

2336 of 1992.

The appellant was temporarily engaged as a watchman under N.M.R. to watch the godown where the materials for the construction of the

building at Tribal Research Centre of the Tamil University, Udhagamandalam were stored. He was first engaged for 80 days from 1.5.1986 on a

daily wages of Rs. 15. Subsequently, on different dates with different intervals in between, he was similarly engaged for 80 days at a time. After the

expiry of every temporary appointment of 80 days, he was relieved and was re-employed for further periods after a gap of one week or so, as the

case may be. The appellant''s services were finally terminated with effect from 4.8.1989, by the proceedings of the 1st respondent, dated 1.8.1989

in Na.Ka. No. P2/907/87 on 21.12.1989, the appellant requested the 1st respondent to employ him either in the Tribal Research Centre,

Udhagamandalam or in any other centre of the Tamil University and continue his services as a Watchman. He also raised a dispute before the 3rd

respondent viz., Labour Officer, Udhagamandalam, who, by his order dated 26.4.1991 rejected his request by accepting the statement of the 2nd

respondent/Director of the Tribal Research Centre, Udhagamandalam before him dated 25.4.1991.

The statement of the 2nd respondent made before the 3rd respondent reads thus:

...It may kindly be noted that when our University was constructing some quarters at M. Palada of Nanjanad village, Ootacamund Taluk we had

temporarily engaged the service of P. Shanmughanathan under N.M.R. as a Watchman for the godown in which the building materials were stored.

He was first engaged for 80 days from 1.5.1986 to 20.7.1986 on a daily wage of Rs. 15. Subsequently, on different dates with different intervals

in between, he was similarly engaged for 80 days at a time. After the expiry of every temporary appointment of 80 days he was relieved and when

necessity arose he was re-employed for further temporary period after a gap of a week or so as the case may be. Such temporary appointment

had come to an end with effect from 4.8.1989 as the buildings had in the meanwhile been completed and the University did not require his

temporary services as the Watchman thereafter for the godown.

He has never been a permanent worker and/or employee of the University. As stated above, his appointment was purely temporary and that too

as a Watchman to watch the building materials stored in godown in the night time so that there are no thefts.

We would like to make it clear that at no point of time his services under us have exceeded a period of 80 days and there has always been a break

of several days before his temporary appointment for a further period 80 days. In view of the facts set out above, you will appreciate that the

question of dismissal from service and/or the question of payment of any compensation and/or retrenchment benefit does not arise....

The appellant, aggrieved by the Order of the 1st respondent, dated 1.8.1989 and the Order of the 3rd respondent, dated 26.4.1991, filed W.P.

No. 2336 of 1992 for the following relief:

To issue a writ of certiorarified mandamus or any other appropriate writ, order or directions calling for the records on the file of the respondents

and quash the order of the 1st respondent dated 1.8.1989 passed in Na.Ka.P2/907/97 and order in O.M. No. 2034/90 dated 26.4.1991 passed

by the 3rd respondent and consequential direction directing the respondents to reinstate the petitioner with backwages and pass such further or

other orders as this Hon''ble Court may deed fit.

According to the appellant, he was engaged by the Tamil University as a watchman for the godown at Udhagamandalam from 1.5.1986 to

4.8.1989. Originally he was engaged on a daily wages of Rs. 15 and subsequently, his daily wages was increased to Rs. 17.40. The details of the

temporary appointment are as follows:

Thus, according to the appellant, he has rendered his services for a long and continuous period of 3 years, 3 months and 4 days in the Tribal

Research Centre, Tamil University, Udhagamandalam. It is contended that the order of termination is bad. It does not assign any reason and it

simply states that his services were not required since the construction work was completed.

The 1st respondent filed a counter-affidavit alleging that the appellant was engaged as a Watchman for a period of 80 days initially and

thereafter he was re-engaged temporarily after break as and when required on the recommendation of the Divisional Engineer of the Tamil

University, who was in charge for the construction work at Tribal Research Centre, Udhagamandalam. Since his engagement was purely

temporary, the appellant was liable to be ousted any time without assigning any reason and that this temporary engagement would not give any

assurance for his permanent appointment in the Tamil University. It is also stated that the procedure of engaging labourers on daily wages is

specifically adopted to suit the contingent needs only. The engagement of the appellant was in the nature of casual labour. The whole thing came to

an end. No service right would accrue for the period in this type of engagement.

The writ petition was dismissed by M.S. Janarthanam, J., by his order dated 25.2.1994 observing as follows:

There is no pale of controversy that Tamil University, Thanjavur, took up construction activity, relatable to Tribal Research Centre located at

Udhagamandalam in 1986. Yet another fact, about which there is no dispute is that for looking after materials relatable to such construction

activity, the petitioner had been temporarily appointed as a Watchman on a daily rated wage basis at Rs. 15 with specific condition attached to the

order of appointment that his services are temporary and would be retained only for a period of eighty days or till the need therefore ceased

whichever is earlier and subject to the further condition that his services are liable to be terminated at any point of time without assigning any reason

whatever. It is not as if the petitioner''s services have been terminated much earlier to the need being ceased, though the University, as per the

appointment order is having the right to do so and what had happened in his case was that he had been terminated after the need had ceased, in

the sense of the completion of the construction activity it had undertaken at Udhagamandalam. It is to be further noted that it is not as if he had

been appointed as a watchman temporarily in any of the post of the watchman available in the University and had been terminated later and in his

place a different person had been appointed and, if he had been placed in such situation, there could have been cause for complaint and that his

termination is without any justifiable cause, requiring interference at the hands of this Court.

In view of this matter, I do not think there is any impelling or compelling reason to go to the rescue of the petitioner by invocation of the

extraordinary jurisdiction of this Court under Article 226 of the Constitution of India.

The writ petition, as such, deserves dismissal and is accordingly dismissed.

Aggrieved by the order of the learned single Judge, the petitioner has preferred the above writ appeal. It is contended that the order of

termination from the services on the ground that the appellant''s services were no longer required for the Tamil University after his continuous

service for 3 years, 3 months and 4 days, was illegal and contrary to the provisions of the Industrial Disputes Act. It is also submitted that the

reasons adduced by the learned Judge in dismissing the writ Petition is also contrary to the many rulings of this Court and also of the Supreme

Court.

Per contra, it is contended by the learned Counsel for the respondents, that the order of termination is unassailable since it does not confer any

service right in this type of temporary engagement and that the appellant was engaged and re-engaged only for temporary periods after break as

and when required on the recommendations of the Divisional Engineer of the Tamil University. It is further urged that since the services of the

appellant were no longer required by the University, his services were terminated and that. his engagement came to an end on the after-noon of

4.8.1989.

We have considered the entire materials placed before us and also the order of the learned single Judge.

It is not in dispute that for the construction activity relatable to the Tribal Research Centre, Udhagamandalam, the 2nd respondent is the

Director and the 1st respondent is the Registrar. The appellant was appointed as Watchman on daily wages at Rs. 15 per day by the 2nd

respondent by his proceedings dated 16.4.1986 subject to the following conditions mentioned in the order:

(i) that the tenure was for a period of 80 days on and from 1.5.1986 or till the need therefore ceases, whichever is earlier;

(ii) it is purely temporary and it can be terminated at any time without assigning any reason whatsoever; and

(iii) it will not confer any right of appointment in any of the departments of the University or any such centre to be established thereafter by the said

University.

All the subsequent appointment orders are also to the same effect. The appellant, accordingly took up the appointment on 1.5.1986 and

pursuant to the order dated 31.7.1989 of the Vice Chancellor of Tamil University, the 1st respondent terminated the services of the appellant on

and from the after-noon of 4.8.1989 in his proceedings Na.Ka. No. B2/907/87, dated 1.8.1989 since the need for his appointment ceased on the

completion of the construction work. The appellant agitated before the 3rd respondent about the termination of his services by the 1st respondent.

The 3rd respondent by merely recording the statement of the 2nd respondent on 25.4.1991, rejected the request of the appellant by his

proceedings dated 26.4.1991. No enquiry appears to have been conducted by the 3rd respondent and the prayer of the appellant was simply

rejected on the basis of the statement of the 2nd respondent recorded by the 3rd respondent. The appellant being aggrieved by the order of the 1st

respondent and the 3rd respondent, came forward with the writ petition, which was dismissed by the learned single Judge holding that the

appellant''s services had been terminated after the need had ceased, in the sense, completion of the construction activity undertaken by the Tamil

University at Udhagamandalam. We are unable to agree with the view expressed by the learned single Judge.

In the instant case, the appellant has put in 3 years, 3 months and 4 days of service commencing from 1.5.1986 till 4.8.1989. The respondents,

in our opinion, have not complied with the mandatory condition of Section 25-F of the Industrial Disputes Act (hereinafter referred to as the Act)

before terminating the services of the appellant and since this has not been complied with, the order of respondents 1 and 2 terminating the services

of the appellant is illegal and liable to be set aside. The learned Counsel for the respondents contended that though the appellant worked for more

than three years in the office of respondents 1 and 2 with a break, since each order of appointment is a separate one for a specified period of 80

days, Sub-clause (bb) of Clause (cc) of Section 2 of the Act alone is applicable to the case of the appellant and therefore, the termination of the

services of the appellant will not amount to retrenchment within the meaning of Section 2(oo) of the Act and consequently, there is no violation of

Section 25-F of the Act.

We are, therefore, called upon to decide the main question as to whether the termination of the service of the appellant amounts to

retrenchment within the meaning of Section 2(oo) of the Act and whether there is violation of Section 25-F of the Act. Learned Counsel for the

respondents contended that Section 2(oo)(bb) alone is applicable to the facts of the case and therefore, it is not a case of retrenchment. The

relevant portion of Section 2(oo) of the Act runs as follows:

''Retrenchment'' 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-

(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.

Sub-clause (bb) to Clause (oo) of Section 2 of the Act was added in the year 1984. Of course, the intention of the Parliament in enacting Sub-

clause (bb) to Clause (oo) of Section 2 of the Act was to exclude certain categories of workers from the definition of ""retrenchment"". But, there is

nothing in Sub-clause (oo) which enables an unscrupulous employer to terminate the service of the workers on the ground of non-renewal of their

contract even when the work for which they were employed subsists. The exception an contained in Sub-clause (bb) will have to be strictly

construed and Clause (bb) should be made applicable only to such cases where the work ceases with the employment or the post itself ceases to

exist. In our view, Clause (bb) cannot be made applicable to a case when the employer resorts to contractual employment as a device to simply

take it out of Clause (oo) of Section 2 of the Act notwithstanding the fact that the work for which the workmen are employed continues or the

nature of duties which the workman was performing are still in existence.

In the instant case, the appellant was appointed by order dated 16.4.1986 with effect from 1.5.1986 as a Watchman not only for the godown

in which the building materials were stored for the Tribal Research Centre at Udhagamandalam, but also to look after the materials and properties

connected with the other departments of the Tamil University, on a daily wages of Rs. 15. That order in Tamil runs as follows:

Therefore, the contention of the learned Counsel for the respondents that the appellant was appointed for a specified purpose and that when the

need, i.e., since the completion of the construction activity had ceased, his services are liable to be terminated, cannot be accepted.

It is not the case of the respondents that the work as a watchman to look after the materials and properties connected with the other

departments of the Tamil University either in the head office at Thanjavur or in the branch offices does not exist. Even assuming for the sake of

argument without admitting that the work for which the appellant was appointed temporarily ceased with the employment, it cannot be said that the

post of Watchman itself ceased to exist. The appellant can be absorbed in any other department of the Tamil University for which purpose also he

was originally appointed. The nature of duty which the appellant was performing is still in existence in other departments of the Tamil University. To

make appointments for specific periods did not absolve the respondents from complying with the conditions stipulated u/s 25-F of the Act at the

time the period of employment comes to an end. The benefit of law laid down by the Supreme Court was extended to all the workmen, even to

those who were employed for specific work or for a particular job and even to casual labourers who were engaged merely to complete causal

nature of work.

The materials available in the instant case disclose that the construction activity for the Tribal Research Centre at Udhagamandalam alone had

ceased but that Centre is still in existence and functioning from there. When the services of the appellant were terminated with effect from the after-

noon of 4.8.1989, the post of Watchman in the Tribal Research Centre and the duties performed by the appellant continued to exist. It is not the

case of the University that the work ceased with the employment or the post of Watchman itself ceased to exist from 4.8.1989. As already stated,

the nature of duties performed by the appellant as Watchman continued to exist even after the services of the appellant were terminated. On the

date of termination of the services of the appellant, the post of Watchman in the Tribal Research Centre at Udhagamandalam was available. In the

circumstances, it cannot be said that the service of the appellant was terminated on the ground that the post of Watchman in the Tribal Research

Centre itself ceased to exist. In view of the above discussion, there is no difficulty in coming to the conclusion that the termination of the services of

the appellant amounts to retrenchment within the meaning of Section 2(oo) of the Act and that the University has not complied with the mandatory

requirement of Section 25-F of the Act. Therefore, the impugned orders of respondents 2 and 3 are bad in law and are liable to be set aside.

In the present case, according to the respondents, the Tribal Research Centre at Udhagamandalam is doing only research work and it had a

few officers and workers. Therefore, the services of the appellant alone who is a watchman are no longer required by them. There is no closure of

Tribal Research Centre as contended by the respondents. If so, the services of all the staff of the Tribal Research Centre including the ministerial

staff should have been terminated by the University. But that is not the case here. The Tribal Research Centre still continues to exist at

Udhagamandalam, which requires all types of staff members including a Watchman. Therefore, the contention of the University that the services of

the appellant are not required cannot be accepted. As such, it has to be concluded that it is not a closure but it is a retrenchment u/s 2(oo) of the

Act on the alleged ground that the construction work of the Tribal Research Centre has been completed and has come to an end.

This apart, the mandatory requirement of Section 25-F of the Act has not been complied with at all by the respondents by paying the

retrenchment compensation to the appellant. Hence, the impugned order is bad in law and is liable to be set aside.

The next question is as to the nature of the relief to be granted. In a similar in the The President, Srirangam Co-operative Urban Bank Ltd.,

Srirangam v. The Presiding Officer, Labour Court, Madurai and Anr. W.A. No. 183 of 1996, dated 15.3.1996 reported in (1996) ILR 2 Mad.

1003 the relief has been granted by a Division Bench of this Court, to which one of us (K.A. Swami, C.J.) was a party, in the following terms:

...The 2nd respondent workman be reinstated as daily wage workman at the rate of Rs. 13 per day. However, we make it clear that if on the date

of reinstatement there is an increase in the daily wages he would be entitled to such increase. As far as the arrears of wages from the date of

termination till 31.3.1996 are concerned, it has been calculated at the rate of Rs. 13 per day, excluding Sundays, by the appellant bank, amounting

to Rs. 54,275. Sri K. Chandru learned Counsel appearing for the second respondent workman submits that the workman accepts the said amount

as arrears of wages subject to any statutory benefits, if available to the daily wage workmen and subject to payment of the daily wages as may be

obtaining on the date of reinstatement. Learned Counsel for the appellant bank also submits that the bank has no objection for payment of Rs.

54,275 as arrears of wages from the date of termination till the end of March, 1996. We place these submissions on record and on the basis of

these submissions we issued further directions in addition to the one issued above:

The 2nd respondent workman shall report to duty on the 15th of May, 1996. On the date of reporting to duty the appellant bank shall pay the

arrears of wages upto 31st March, 1996 amounting to Rs. 54,275 plus the wages for the month of April, 1996, on or before the end of May,

1996.

The 2nd respondent-workman is entitled to wages that are payable to a daily wage worker as obtaining on the date he reports to duty.

The 2nd respondent will be entitled to other statutory benefits, if any, available to a daily wage worker....

Following the said decision, in The Director, Small Industries Service Institute, Guindy Madras and Anr. v. Mumtaj Banu and Anr. W.P. No.

9679 of 1989 etc., dated 10.6.1996 reported in (1996) ILR 3 Mad. 1257 rendered by a Division Bench of this Court, to which one of us (K.A.

Swami, C.J.) was a party, the reinstatement was confirmed and the award denying the backwages was quashed, instead of only reinstatement. It

was also held that the first respondent therein would be entitled to backwages from the date of termination of her service till reinstatement. It was

further held, ""She was appointed purely on temporarily basis as a Lower Division Clerk. Therefore, for the purpose of reinstatement, the same

position has to be assigned. If cut to certain developments in the Department, she is entitled to permanency, it is open to her to seek the same in

the department separately and it is for the Department to consider the same. As far as this Court is concerned, while reinstating her in service, it

becomes necessary to point out that reinstatement is only as temporary Lower Division Clerk as on the date of termination of service she was

temporary Lower Division Clerk. In the aforesaid

The President, Srirangam Co-operative Urban Bank Ltd., Srirangam v. The Presiding Officer, Labour Court, Madurai and Anr. (1996) ILR 2

Mad. 1003 case also, a similar question arose, and the reinstatement was ordered to the same nature of post, with backwages.

For the reasons stated above and following the aforesaid decisions, we allow the writ appeal, set aside the order dated 25.2.1994, passed by

the learned single Judge in W.P. No. 2336 of 1992 and allow the writ petition in the following terms:

(a) The appellant/petitioner shall be reinstated as watchman on daily wage basis of Rs. 17.40 per day, as daily wages paid on the date of

termination of his service, on the same terms and conditions on which he was employed as watchman on daily wage basis.

(b) The back-wages shall be calculated as per the rules and regulations and the rate of daily wages existing during the period from the date of

termination till the date of reinstatement.

(c) The reinstatement shall be given effect to on or before the 15th of April, 1997. On such reinstatement, he is entitled to daily wages as may be

obtaining on the date of reinstatement.

(d) The appellant/petitioner shall report to duty before the Registrar, Tamil University, Thanjavur, on any day, on or before the 15th of April, 1997.

(e) The back-wages shall be paid on or before the end of April, 1997.

(f) The case of certain developments in the Department and the law governing such appointees, the appellant/petitioner is entitled to permanency in

service, it is open to him to seek the same in the University separately. The University shall consider the same in accordance with law.

No order as to costs.