Parveen Kumar vs The Chief Administrator, Housing Board Haryana & Ors.

KIRTI SINGH, J. (Oral)

¹⁾ The present writ petition has been filed under Articles 226/227 of the Constitution of India seeking issuance of a writ of certiorari for quashing of the Award dated 01.08.2001 (Annexure P-4) passed by the Presiding Officer, Labour Court, Ambala in Reference No.261 of 1996, whereby the reference regarding termination of the petitioner's services was answered against him, it having been held that the termination of his services w.e.f. 29.02.1996 fell within the exclusionary clause contained in Section 2(oo)(bb) of the Industrial Disputes Act, 1947 and, therefore, did not amount to retrenchment requiring compliance with Section 25-F of the Act.

²⁾ The pleaded facts of the case are that the petitioner was engaged as an Electrical Helper by respondent No.1-Housing Board Haryana on 01.05.1995 at Panchkula, without the written appointment letter indicating that his engagement was only for a specific period or against a specific project. His services were subsequently allegedly terminated w.e.f. 29.02.1996 without notice, compensation or enquiry. He served a demand notice dated 26.03.1996 (Annexure P-1) upon the respondents and, conciliation proceedings having failed, the dispute was referred by the State Government to the Labour Court concerned for adjudication. The Labour Court, upon appreciation of the evidence on record, concluded that the case of the petitioner fell within the exception contained in Section 2(oo)(bb) of the Act, and therefore, the provisions of Sections 25-F, 25-G and 25-H of the Act were not attracted. The claim of the workman was accordingly rejected vide the impugned Award. Aggrieved thereagainst, the petitioner has filed the present petition.

³⁾ Learned counsel for the petitioner submits that the written statement filed on behalf of the management before the Labour Court was self-contradictory inasmuch as it was pleaded, on the one hand, that the petitioner was engaged for electrification work of Sector 14, Panchkula, which stood completed on 31.05.1995, while, on the other hand, it was also pleaded that his services were terminated on 29.02.1996 as the work was transferred to HSEB after that date. It is further submitted that MW-1 similarly gave inconsistent versions regarding the date of transfer of work to HSEB, at one point stating it to be 29.02.1996 and, in cross-examination, stating it to be 13.06.1995, and also admitted that electrification work was still continuing at the Head Office of the Housing Board at Panchkula as on 29.02.1996. It is also urged that in view of these contradictions, and in the absence of any document establishing that the petitioner's engagement was against a specific project or for a fixed tenure, the finding returned by the Labour Court under Section 2(oo)(bb) is perverse and unsustainable. Learned counsel also relies on S.M. Nilajkar and others v. Telecom District Manager, Karnataka, 2003 (4) SCC 27, where the Hon'ble Supreme Court held that the burden of proving that a workman's engagement falls within the exception under Section 2(oo)(bb) of the Act lies on the employer, and such an exception is not to be readily inferred.

⁴⁾ Per contra, learned counsel for the respondents supports the Award and, placing reliance upon the written statement filed on behalf of respondents No.1 to 3 in the present proceedings, submits that the electrification work of Sector 14, Panchkula, stood transferred to and taken over by HSEB with effect from 14.06.1995, as recorded in the letter dated 13.06.1995 (Annexure R-1) addressed by the Assistant Engineer, Housing Board Haryana to the Executive Engineer, Operation Division, HSEB, Panchkula, and reiterated in the letter dated 26.10.1995 (Annexure R-2) issued by the Executive Engineer (HQ), Housing Board Haryana. It is submitted that although the petitioner's services as Electrical Helper continued to be utilised till 29.02.1996 to assist in the residual work, it was always understood, at the time of his engagement, that his services would come to an end upon completion/transfer of the work, and that the discrepancy in dates relied upon by the petitioner does not detract from this position.

⁵⁾ I have heard learned counsel for the parties and perused the record.

⁶⁾ It is well settled that while exercising supervisory jurisdiction under Articles 226/227 of the Constitution of India over an award passed by a Labour Court, this Court does not sit as a Court of appeal over the findings of fact recorded by the Labour Court. Interference is warranted only where the findings are shown to be perverse, based on no evidence, or vitiated by an error of law apparent on the face of the record. The mere possibility of another view on appreciation of evidence would not, by itself, furnish a ground for interference.

⁷⁾ The principal issue which arises for consideration is whether the Labour Court was justified in holding that cessation of the petitioner's engagement fell within the exclusionary clause contained in Section 2(oo)

of the Industrial Disputes Act, 1947. The said finding cannot be said to have been returned merely on the basis that the petitioner was a daily wager. The Labour Court considered the material produced before it, including the muster rolls Ex.M-1 and Ex.M-2, and concluded that the petitioner's engagement was connected with the specific electrification work for which he had been engaged and that his services came to an end upon cessation of the work.

⁸⁾ The petitioner has sought to assail this finding by pointing out the discrepancies in the stand of the management regarding the date on which the electrification work was transferred to HSEB. However, the mere discrepancy in the dates does not, in the facts of the present case, render the ultimate finding of the Labour Court perverse. The material relied upon by the respondents, including the communication dated 13.06.1995 and the subsequent communication dated 26.10.1995, supports their case that the electrification work had been transferred to HSEB, while the petitioner continued to be utilised thereafter for residual work till 29.02.1996. Thus, the mere fact that the petitioner continued to work till 29.02.1996 does not, by itself, establish that his engagement was of an indefinite nature or that it had ceased to be connected with the work for which he was engaged.

⁹⁾ No doubt, learned counsel for the petitioner has also relied upon the judgment of the Hon'ble Supreme Court in S.M. Nilajkar and others v. Telecom District Manager, Karnataka, 2003 (4) SCC 27, to contend that the burden of establishing that the case falls within the exception contained in Section 2(oo)(bb) lies upon the employer. There can be no quarrel with the said proposition. However, the question before this Court is whether, on the material available on record, the said burden stood discharged in the present case.

¹⁰⁾ On consideration of the record, this Court finds that the Labour Court had sufficient material before it to conclude that the petitioner's engagement was linked to the electrification work being undertaken by the Housing Board and that his services ceased when the work against which he was engaged came to an end. The finding is thus based upon evidence on record and cannot be characterised as one based on no evidence or as being perverse. This Court, in exercise of its supervisory jurisdiction, would not substitute its own appreciation of the evidence merely because another view may also be possible.

¹¹⁾ The contention regarding completion of 240 days also does not advance the case of the petitioner. Even assuming that the petitioner had completed 240 days, the same would not, by itself, establish that the cessation of his engagement amounted to retrenchment. The first question is whether the cessation falls within the definition of retrenchment under Section 2(oo) of the Act. Once the finding that the cessation falls within the exception contained in Section 2(oo)(bb) is found to be sustainable, the question of compliance with Section 25-F does not arise.

¹²⁾ The challenge founded upon Sections 25-G and 25-H also cannot be accepted. Insofar as Section 25-G is concerned, the petitioner has relied upon the alleged retention of other workers. However, no material has been brought on record to establish that any person similarly situated to the petitioner, engaged for the same work and in the same category, was retained after the cessation of his engagement. The principle embodied in Section 25-G cannot be invoked merely by comparing the petitioner with regular employees holding permanent posts. In the absence of such foundational facts, no violation of Section 25-G is made out.

¹³⁾ Similarly, the reliance upon subsequent engagement of other daily wagers does not confer any independent right upon the petitioner under Section 25-H. The right contemplated under Section 25-H is available to a workman whose services have been retrenched in accordance with law. Once the cessation of the petitioner's engagement is found to fall within the exception under Section 2(oo)(bb), it does not constitute retrenchment within the meaning of the Act. In any event, the petitioner has not been able to establish that the subsequent engagement of the persons relied upon by him was for the same work for which he had originally been engaged.

¹⁴⁾ Thus, the Labour Court considered the evidence available before it and recorded a finding, on appreciation of the material on record, that the petitioner's engagement was for the specific electrification work and that its cessation fell within the ambit of Section 2(oo)(bb) of the Act. No material has been pointed out which would establish that the Labour Court ignored any material evidence or that its conclusion was wholly unsupported by the record.

¹⁵⁾ The proposition relied upon by learned counsel for the petitioner in S.M. Nilajkar's case (supra) does not assist the petitioner in the facts of the present case. The burden undoubtedly lay upon the employer to establish the applicability of the exception under Section 2(oo)(bb); however, the question is not merely whether such burden existed, but whether the finding recorded by the Labour Court, upon appreciation of the evidence, suffers from such perversity or illegality as would warrant interference by this Court. No such infirmity has been demonstrated.

¹⁶⁾ On an overall consideration of the matter, this Court finds no perversity, patent illegality or jurisdictional error in the Award passed by the learned Labour Court, Ambala. The finding that cessation of the petitioner's services was consequent upon completion/cessation of the work against which he had been engaged and consequently fell within the exclusionary clause contained in Section 2(oo)(bb) of the Industrial Disputes Act, 1947, does not call for interference. Consequently, the provisions of Section 25-F are not attracted.

¹⁷⁾ Learned counsel for the petitioner, despite his able assistance, has not been able to point out any such infirmity in the impugned Award as would justify interference in exercise of the extraordinary supervisory jurisdiction of this Court under Articles 226/227 of the Constitution of India.

¹⁸⁾ Accordingly, as a fallout of the foregoing discussion, finding no merit in the writ petition, the present writ petition is dismissed.

¹⁹⁾ Pending application(s), if any, shall also stand disposed of.