Ram Bahadur vs The State of H.P. and Others

V.K. Mehrotra, J.—Petitioner Ram Bahadur was engaged as a driver in the office of the Secretary-CH/M-Chief Engineer, Housing Board, Himachal Pradesh, on December 6, 1983. His services were dispensed with by an oral order with effect from September 23, 1984. When he failed to get relief from his employer, Ram Bahadur came to this Court for redress by instituting the present petition under Article 226 of the Constitution on October 11, 1984. The three Respondents in the petition are the State of Himachal Pradesh, the Secretary-cw/w-Chief Engineer of the H.P. Housing Board and the Executive Engineer P.&P. of the H.P. Housing Board. A reply has been filed in the petition on behalf of the second and third Respondents.

From the affidavits exchanged between the parties it appears that there is no dispute between them about the fact that Petitioner Ram Bahadur was engaged as a driver on daily wages with effect from December 6, 1983, and continued to function almost without a break till September 23, 1984, when his services were dispensed with orally.

The Petitioner claims that the termination of his services amounted to "retrenchment" within the meaning of Section 2(oo) of the Industrial Disputes Act, 1947 (for brief, "the Act") and that, inasmuch as, he had put in continuous service for not less than two hundred and forty days during the period of one year counted backwards from the date of termination of his service, he was entitled to the protection available to a "workman" as defined in Section 2(s) of the Act. Since, there was a breach of the mandatory conditions precedent envisaged by Section 25F in his case; the order of termination was void and inoperative. It is not seriously disputed on behalf of the Respondent that for purposes of a case like the present, the Housing Board will be an "industry" within the meaning of Section 2(j). On the principle laid down by the Supreme Court in Bangalore Water Supply and Sewerage Board Vs. A. Rajappa and Others, as succinctly brought out by the Supreme Court in a later judgment in Des Raj and Ors Vs. State of Punjab and Ors, ), it must be held that the H.P. Housing Board is an "industry". The Court, speaking through Ranganath Misra, J. (as the Chief Justice then was) summarised the Predominant nature test aid down in the Bangalore Water Supply case thus:

(a) Where a complex of activities, some of which qualify for exemption, others not, involve employees on the total undertaking, some of whom are not Workmen or some departments are not productive of goods and services if isolated, even then, the predominant nature of the services and the integrated nature of the departments as explained in the The Corporation of the City of Nagpur Vs. Its Employees, , will be the true test. The whole undertaking will be industry although those who are not workmen by definition may not benefit by the status.

(b) Notwithstanding the previous clauses, sovereign functions, strictly understood, (alone) qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.

(c) Even in departments discharging sovereign functions, if there are units which are industries and they are substantially severable, then they can be considered to come within Section 2(j).

(d) Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby.

After noticing the facts in the case of Des Raj the Supreme Court held that the Department of Irrigation of the State of Punjab, where Des Raj was working, was covered by the definition of "industry1'' in Section 2(j)

The Himachal Pradesh Housing Board Act, 1972, under which the H.P. Housing Board is established is:

an Act to provide for measures to be taken to deal with and satisfy the need of housing accommodation.

Chapter II relates to the establishment and constitution of Board including the appointment and conditions of service of its officers and servants. It also contains various provisions relating to the conduct of the business of the Board. Chapter III deals with the powers and duties of the Board to undertake housing schemes and their execution. It also enumerates some other duties of the Board. A look at Section 25, occurring in this Chapter, would show that the Board is empowered to frame and execute housing schemes and for that purpose take such steps as are necessary for undertaking work in any area to which the Act applies and to incur expenditure there for. Suffice it to say that the Housing Board is primarily constituted for undertaking schemes for the welfare of the community by providing housing accommodation.

Chapter IV contains provisions for the finances of the Board, its Accounts and their audit while Chapter v. contains miscellaneous provisions to give effect to the various other provisions of the Act.

The definition of "industry" contained in Section 2(j) is to be given a liberal interpretation having regard to the principles which have been laid down authoritatively in Bangalore Water Supply and Des Raj. In a welfare State, apart from functions of a purely sovereign character, the State undertakes, either directly or through instrumentalities created under a statute, activities for the welfare of the community. The inclusion of such activities, as a part of complex of activities, in the definition of "industry" for so long as they are not excluded by any competently enacted legislative provision, like in the proposed amendment, yet left uninformed, in the definition- of "industry" by Section 2(c) of the Amending Act (46 of 1982) is in consonance with the concept of a liberal extension of the definition accepted by the Supreme Court.

The Housing Board would, thus, have to be treated an "industry" within the meaning of that term in Section 2(j) of the Act.

As a driver, the Petitioner would undoubtedly be covered by the definition of "workman" contained in Section 2(s). He answers the description of a person employed in an industry to do a manual unskilled or skilled work for hire or reward. He does not answer the description of any excluded category mentioned in Section 2(s).

What was argued with some emphasis by Shri Prem Goel, appearing for the Respondent-Housing Board, was that the termination of the services of Petitioner Ram Bahadur was not ''retrenchment'' within the meaning of Section 2(oo) of the Act, as amended by the Industrial Disputes Amendment Act, 1984 (hereafter, the Amending Act") in view of Clause (bb) added through that amendment. As such, proceeded the submission, the Petitioner was not entitled to claim that there should have been compliance with the provisions of Section 25F in his case.

under Section 2(oo)

"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 voluntary retirement of the workman; or retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf or (c) 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 concerned therein or (d) Termination of the service of a workman on the ground of continued ill health.

Clause (bb) was added by the Amending Act of 1984 with effect from August 18, 1984. The Statement of Objects and Reasons relating to the Bill, by which Clause (bb) was added, says that:

(i) Difficulties have arisen in the interpretation of the expression "retrenchment" It is proposed to exclude from the definition of "retrenchment" as contained in the Act termination of the service of a workman as a result of the non-renewal of the contract of employment on its expiry and of the termination of such contract in accordance with the provisions thereof.

The definition, as amended by the Amending Act (49 of 1984), came up for consideration before a Constitution Bench of the Supreme Court in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh Vs. Presiding Officer, Labour Court, Chandigarh and Others, The Supreme Court has emphasised that, inasmuch as the definition has used the word ''means'', the definition is a hard-and-fast definition and no other meaning can be assigned to the expression than is put down in it. It is an explicit statement of the full connotation of a term. Further, 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 and those expressly excluded by the definition. This is the wider literal interpretation of the word to mean termination by the employer of the service of a workman as surplus labour for any reason whatsoever.

In view of this authoritative pronouncement by the Supreme Court it is not necessary for me to discuss the two decisions cited in this connection by Shri Prem Goel except for noticing them. The decisions placed by Shri Prem Goel were those of the Karnataka High Court in CM. Jitendra Kumar v. The Management of Bharat Earth Movers Ltd. and another (1985 LabIC 1833) and of the Kerala High Court in P.K. Visalakshy and Ors. v. State of Kerala and Ors. (1986 Lab IC 1869).

For the purpose of deciding the present writ petition it is really not necessary to go into the question of law as to the circumstances in which it can be said that termination of the services of a workman was as a result of the non-renewal of a contract of employment on its expiry or under a stipulation in that behalf contained therein. In the circumstances in which the termination of the services of Petitioner Ram Bahadur was brought about, Clause (bb) is not attracted at all.

Annexure-PA to the writ petition is the office order dated December 6, 1983, whereby Petitioner Ram Bahadur was appointed "as driver against a vacant post on daily-wage basis for a period of three months from the date of joining or till regular arrangement is made, whichever is earlier." This office order further says that the appointment will not confer any right of regularisation upon Petitioner Ram Bahadur in the services of the Board. There is no other condition mentioned in the office order. It does not show that the services could be brought to an end without any notice to the Petitioner. Next office order (Annexure-PB) dated March 20, 1984; extended the appointment of Petitioner Ram Bahadur for three months with effect from March 8, 1984, to June 7, 1984 or till regular arrangement was made whichever was earlier. In this order as well no further conditions were mentioned. On similar lines was the next order of extension dated May 28, 1984 (Annexure-PC) whereby the term of appointment of Petitioner Ram Bahadur was extended further for a period of three months with effect from June 8, 1984, to September 7, 1984, or till regular appointment was made, whichever was earlier. No further conditions are found mentioned in this order as well.

Through his application of September 17, 1984, (Annexure-PD) Petitioner Ram Bahadur brought to the notice of the Secretary-cum-Chief Engineer of the H.P. Housing Board that he had made an application dated September 3, 1984 requesting for the grant for extension for further period which had not yet been granted. He prayed through this application that extension may be granted to him to regularise his attendance. There is no dispute between the parties that no order of extension was passed after the order dated May 28, 1984 (Annexure-PC) in the case of the Petitioner. It is also not in dispute that in spite thereof Petitioner Ram Bahadur was permitted to continue to work as a driver on daily wages till September 23, 1984. The statement made on behalf of the Housing Board in the Return filed in the present writ petition is that the Petitioner attended the office up to September 23, 1984, and he was ordered thereafter not to attend the office as his services were not found satisfactory.

The facts aforesaid make it clear beyond doubt that the Petitioner''s services were not brought to an end by way of nonrenewable of the contract of his employment at its expiry or in accordance with a stipulation contained in the contract of employment. What has been, in reality, done was that the Petitioner was permitted to continue to work as a driver on daily wages till September 23, 1984, that is, till long after the expiry of the period of service mentioned in the last office order by which extension in service had been granted to him. Further, the service was dispensed with not on the ground that the contract of employment had come to an end and was not being renewed but on the ground that the services of Petitioner Ram Bahadur were found to be unsatisfactory in nature.

In the peculiar circumstances of the present case where, as noticed earlier, the termination of the services of Petitioner Ram Bahadur did not fall in any of the excepted categories mentioned in Section 2(oo) the termination by an oral order of his service clearly amounted to "retrenchment" within the meaning of that provision as held by the Constitution Bench of the Supreme Court in Punjab Land Development and Reclamation Corporation Ltd.

Since, admittedly, there has been non-compliance with the mandatory provisions of Section 25F in the present case, the termination of the services of Petitioner Ram Bahadur will have to be treated as void abilities, invalid and inoperative. The Petitioner will be deemed to be in continuous service and entitled to all consequential benefits like back wages and other benefits (See Mohan Lal Vs. Management of Bharat Electronics Ltd., . It will, however, be open to the second and third Respondents to terminate the services of Petitioner Ram Bahadur, if they wish to do so, in accordance with law. These Respondents would also be entitled to suitably adjust the amount outstanding against the Petitioner, as mentioned in the reply filed by them in this Court, while settling monetary claims of the Petitioner.

The petition shall stand allowed in the terms aforesaid.

Costs on parties.