Post Graduate Institute of Medical Education and Research vs Presiding Officer, Labour Court and Another

S.P. Kurdukar,C.J.—This letters Patent Appeal is filed by the appellant-Post Graduate Institute of Medical Education and Research (Hereinafter referred to as the P.G.I), challenging the legality and correctness of the Judgment and order dated November 24, 1992, passed by the learned single Judge, confirming the award dated September 5, 1991, passed by the Presiding Officer, Labour Court, granting reinstatement with full back wages to the second respondent- workman.

Bhupinder Singh, the second respondent-workman (hereinafter referred to as the Workman) was initially appointed as a Junior Laboratory Technician on December 24, 1985, in the P.G.I. on ad- hoc basis against a post reserved for Scheduled Tribe, from December 24, 1985 to March 31, 1986, in the regular pay scale of Rs. 260-430 plus usual allowances. The services of the workman were continued from time to time under the appointment orders which are annexed to this compilation as Annexures P-2 to P-8. The fast appointment order was from April 1, 1988 to October 31, 1988. Since the services of the workman was not continued after the expiry of October 31, 1988, he filed a writ petition in this Court seeking regularisation of his services. It is not necessary to deal with that proceedings in the present litigation. The workman then served demand notice, Annexure P-9 u/s 2-A of the Industrial Disputes Act, 1947, (for Brevity, the Act), contending that he having worked for 240 days in one calendar year, the termination of his services would amount to retrenchment within the meaning of Section 2(oo) of the Act, and the management was bound to comply with the provisions of Section 25- F of the Act. Incidentally, he also mentioned that some of the similarly situated employees although juniors to him, were retained in service and he has been discriminated. The P.G.I. replied to the said demand notice and denied the right of the workman for continuation in service. According to the P.G.I. the workman was employed on contractual basis for a specific period and his service came to an end by efflux of time. Non-continuation in service does not amount to either removal of the workman or termination amounting to retrenchment as defined u/s 2(oo) of the Act. Section 25-F of the Act, has no application. The workman was appointed on ad-hoc basis for a specific period and since the said period has come to an end, the workman has no right to continue, It appears that the conciliation efforts failed and thereafter dispute was referred to the Labour Court u/s 10(1) of the Act. The parties were directed to file statements of claims. The workman repeated the same claim which he has disclosed in the demand notice and it is not necessary to reproduce the same. However, reference to the written statement filed by the P.G.I. would be relevant in view of the arguments advanced before us. The written Statement filed by the P.G.I. is Annexure P-10 and it contains only three paragraphs. In the first paragraph it is stated that the workman was appointed as junior Technician on December 24, 1985 on ad-hoc basis against the post reserved for the Scheduled Tribe. The appointment was for a specific period. The workman was appointed from time to time on ad-hoc basis and his tenure of Service ended on October 30, 1988. In paragraph 2, it is stated as under:

"... The workman was employed on contractual basis upto a specific period and his services came to an end on the appointed day as per the appointment orders. The respondent did not violate any provisions of Industrial Disputes Act. The removal of the workman does not fall under retrenchment as defined u/s 2(oo) of I.D. Act because non renewal of contract of employment does not amount to retrenchment. The workman is not entitled to regularisation in service".

On the basis of the pleadings, the parties went to trial. Both the parties led oral and documentary evidence before the Labour Court and the Labour Court vide its award dated September 5, 1991, held that the order of termination of the workman was illegal and liable to be set aside. The workman was directed to be reinstated in service withfull back wages and continuity of service. The Labour Court directed that since the workman was in service from September, 1990, he will be entitled to back wages only upto August, 1990 (see Annexure P-12). The P.G.I. aggrieved by this award, preferred a writ petition and the learned single Judge vide his judgment and order dated November 24, 1992, dismissed the writ petition. It is against this order passed by the learned Single Judge the P.G.I. has preferred this letters Patent Appeal.

Mr. Nehra, the learned senior counsel for the appellant, urged that the impugned order is illegal in as much as the learned Single Judge has proceeded on wrong premises. To be more precise, the contention raised by Mr. Nehra is that the workman was appointed for a specific period and on expiry of the said period, his service automatically came to an end by efflux of time. In a case of this nature, there is neither termination nor retrenchment as it falls under exception to Section 2(oo) of the Act and, therefore, the question of compliance of Section 25-F of the Act, does not arise, In order to supplement this argument, Mr. Nehra drew our attention to Clause (bb) of Section 2(oo) of the Act, and it reads thus:

"Termination of the services 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 on such contract being terminated under a stipulation in that behalf contained therein, or"

Relying upon this provisions, Mr. Nehra, urged that the case of the P.G.I. falls within the exception and, therefore, it cannot be said that the workman came to be retrenched. The emphasis laid by Mr. Nehra, is on the wording of various appointment orders given to the workman to which reference will be made shortly. According to Mr. Nehra, each appointment order refers to a specific period and the last order is dated October 3, 1988 and it was for the period with effect from the forenoon on April 1, 1988, to the afternoon of October 31, 1988. It is thus contended on behalf of the P.G.I. by Mr. Nehra, that the order of reinstatement passed by the Labour Court and confirmed by the learned Single Judge is illegal and cannot be sustained.

In order to appreciate this contention, it would be necessary to reproduce the relevant portion from the first order of appointment of the workman which reads thus:

"On the recommendations of the Department Selection Committee of this Institute, you are appointed to a temporary post of Jr. Laboratory Technician on ad-hoc basis against the reserved post of Scheduled Tribe in public interest w.e.f. December 24, 1985 (F.N) to March 31, 1986 (A.N) in the pay scale of Rs. 260-8-300-8-340-10-430 plus usual allowances as are admissible to the employees holding corresponding posts at the Institute from time to time under the ''Institute Research Scheme'' under the following terms and conditions..."

While setting out the terms and conditions it is stated that the appointment is purely on ad-hoc basis for a specific period against the reserved post of Scheduled Tribe, in public interest, and the services are terminable without prior notice from either side (see Annexure P-l). Other appointment letters are Annexures P-2 to P-8 and in no way they are differently worded.

Now the sole question that needs to be considered in this appeal is as to whether the appointment of the workman was for a specific period and terminable by efflux of time or on expiry of the period mentioned in the appointment orders. Drawing support from Clause (bb) of Section 2(oo) of the Act, Mr. Nehra, vehemently contented that it was perfectly within the power of the P.G.I. either to renew the contract of employment or decline its renewal. Having followed the latter course, it would amount to non-renewal of the employment contract and therefore Clause (bb) of Section 2(oo) of the Act, clearly applies and it does not amount to retrenchment as defined u/s 2(oo) of the Act. Clause (bb) is one of the exceptions to the concept of retrenchment under the Act and the case of the workman clearly falls under the said exception. We are, however, unable to accept this contention for various reasons. If one looks at the various appointment orders annexed to the compilation as Annexures P-1 to P-8, it is clear that the workman continued in service for more than two years. It also cannot be ignored that he was recommended by the Department Selection Committee of the P.G.I. In all these orders, the regularisation was denied only on the ground that the post against which the workman came to be appointed was reserved for the Scheduled Tribe. It is not the case of the P.G.I. that at any point of time and/or after the expiry of October 31, 1988 (see Annexure P-8), a candidate of the Schedule Tribe was either selected by the Department Selection Committee of the Institute or recommended by the Employment Exchange and since the said candidate of the Scheduled Tribe is available, the petitioner''s services cannot be continued. If this is the only condition which would enable the P.G.I. to remove the workman, in our opinion, until such occasion arises, it would not be appropriate to discontinue the services of the workman. It is in this background if one looks at the various appointment orders Annexures P-1 to P-8, the question would be as to whether the workman was appointed on contract basis or it was a contractual appointment. To our mind, although it could be termed as contractual appointment, but the same could be terminable upon the happening of a particular event, namely, selection of a Scheduled Tribe candidate by the Department Selection Committee of the P.G.I. In fact, the appointment order, Annexure P-2 states that this extension is subject to the condition that either a candidate belonging to the Scheduled Tribe category be selected through the Employment Exchange before the expiry of the ad-hoc appointment of the workman on June 28, 1986 or a fresh ''non availability Certificate'' should be obtained from the Employment Exchange that no Scheduled Tribe candidate is available with them in case Sh. Bhupinder Singh''s further extension is required. The same is the wording repeated in Annexure P-3, P-4, P-7 and P-8. After taking into account the various appointment orders, Annexures P-1 to P-8 , we are of the opinion that such appointment orders cannot be said to be purely contractual appointments for a specific period terminable by efflux of time ignoring other clause of the appointment letters/orders.

Mr. Nehra, the learned counsel for the appellant, drew our attention to the decision of this Court in Sat Pal Singh v. Union of India 1990(7) S.L.R. 112. It was a case where the petitioner workman was employed on daily wages for a fixed period of time and in the context of the facts of that case, the learned Judge held that after the expiry of the fixed period, the workman had no right and the facts do not constitute retrenchment and consequently, the provisions of Section 25-F of the Act, have no application. This decision is clearly distinguishable on facts.

Mr. Nehra then drew our attention to the decision of the Supreme Court in M. Venugopal Vs. The Divisional Manager, Life Insurance Corporation of India, Machilipatnam, Andhra Pradesh and another, . It was a case where the appellant while he was on probation, his services were terminated on the ground that he had failed to achieve the target business. The question that fell for consideration before the Supreme Court was whether such a termination of services amounted to retrenchment within the meaning of Section 2(oo) of the Act. The Hon''ble Supreme Court held in the negative. We have gone through the decision. In paragraph 2 the terms of the confirmation and increments have been re-produced. It is clear that during the probationary period, the appellant was to achieve a certain target business. He having failed to do so, his probation was not continued. In our opinion, the case before us is clearly distinguishable and the law laid down by the Supreme Court will have no application.

Mr. Nehra then drew our attention to another decision of the Supreme Court in Director, Institute of Management Development, U.P. Vs. Smt. Pushpa Srivastava, . It was a case where the period of contract was extended from time to time permitting the respondent to continue in service for more than one year and ultimately, the post was sought to be abolished. The Supreme Court held that the appointment being contractual and ad-hoc which came to an end by efflux of time, the respondent (employee) had no right to continue in the post and to claim regularisation in service in the absence of any rule providing for any regularisation after the specific period of service. This judgment, in our opinion, is again, distinguishable on the facts of the present case. As indicated earlier, the workman''s services were continued from time to time with a rider that his appointment was against the post reserved for the Scheduled Tribe. As indicated earlier, it is not the claim of the P.G.I. that a Scheduled Tribe candidate was recommended by the employment Exchange or by the Department Selection Committee of the P.G.I. and, therefore, the services of the workman were required to be terminated . In the facts and circumstances of the present case, in our opinion, this judgment will have also no application.

Mr. Sarjit Singh, the learned senior counsel appearing for the workman urged that the appointment orders issued by the P.G.I. from time to time do indicate that there is a vacancy and assuming that it is reserved for the Scheduled Tribe, since no candidate from the Scheduled Tribe is made available by the Employment exchange or by the Department Selection Committee, the principle of contractual service shall not apply. He further urged that having regard to the fact that the workman was continued for more than two years, it itself indicates the availability of the vacancy and in a case of this nature, it would be open to the Court to lift the veil and find out the true nature of appointment. In support of this contention, Mr. Sarjit Singh, drew our attention to a reported decision of the Bombay High Court in Dalip H. Shirke v. Zilla Parishad, Yayatmal 1991 I LLJ 445. This decision, in our opinion, clearly applies to the facts of the present case. The learned Single Judge of the Bombay High Court drew support for his conclusions from the decision of the Supreme Curt in The State Bank of India Vs. Shri N. Sundara Money, . This being the position, in our opinion, the workman''s service could not be said to have come to an end by efflux of time until the P.G.I. brings on record the material to show that the candidate from the Scheduled Tribe was available for appointment in place of the workman. Thus, there is no substance in the first contention raised on behalf of Mr. Nehra

It was then contended by Mr. Nehra that the workman was appointed on ad-hoc basis from time to time in research project titled as "Optimisation of radiation dose at high dose rate (selection) brachytherapy in stage III carcinoma of cervix uteri." The learned counsel urged that this scheme came to an end on October 31, 1988 and as a result thereof, services of the workman also came to an end. This is altogether a new contention sought to be raised before the learned Single Judge as well as in this appeal." If one peruses the written statement filed on behalf of the P.G.I. before the Labour Court, as well as the evidence on record, no details or better particulars were pleaded by the P.G.I. to substantiate its case on this score. It is true that there is a passing reference to the abolition of the scheme, but no particulars were given before the Labour Court. If the P.G.I. wanted to rely upon these circumstances, it ought to have pleaded and clearly proved the same before the Labour Court. Having not done so, in our opinion, it would not be possible to entertain this contention at a late stage and deprive the workman of an opportunity to meet the same. Having regard to the time that has passed, it would also be not in the interest of justice to entertain this contention at this stage and remit the matter back to the Labour Court. We, therefore, do not consider the plea at this stage. In the view which we have taken we do not think it necessary to consider the issue joined by the parties relating to the continuation of other employees like Naresh Kumar and others.

In the result, the appeal fails and the same is dismissed with costs.

sd/- SWATANTARKUMAR.J