Allahabad High Court: In a writ petition filed, wherein the petitioner alleged that the Company had adopted “unfair labour practices” under Section 2(ra) of the Industrial Disputes Act, 1947 (‘Act’), the Single Judge Bench of Kshitij Shailendra J., has dismissed the petition on the ground that automatic cessation of services rendered by the petitioner does not fall within the definition of ‘retrenchment’ and doesn’t amount to unfair labour practices.
Background
In the matter at hand, the petitioner was employed as a temporary Clerk Grade-III under the Company, where he was rehired, relieved, and again engaged multiple times over the course of four years, in which he didn’t complete a single term of 240 days in a calendar year which would have entitled him the deemed status of a permanent employee under the Act. Thereby, the petitioner contended that Company adopted “unfair labour practices” under Section 2(ra) and Entry 10 contained in the 5th Schedule of the Act.
The Company contended that the petitioner was only temporarily engaged for fixed terms and short durations due to exigencies of work and was given extensions when his services were required by the Company. The Company further contended that the termination of petitioner’s services was according to the law. After the termination of services, the petitioner sought relief firstly under the Company authorities, where his attempt failed. Further, he approached the Industrial Tribunal under the U.P. Industrial Disputes Act, 1947, wherein the Tribunal dismissed the case and adjudged that the petitioner was temporarily engaged from time to time and did not complete 240 days to attract the provisions of Act of 1947. Thus, the petitioner filed the present petition.
Analysis
The Court in the issue, of whether the reference made by the Assistant Labour Commissioner(‘ALC’)was valid, reiterated that th orderby the Tribunal that the ALC was without jurisdiction, and it was the Deputy Labour Commissioner who had the power and competence to make the reference. The Court perused the appointment letters that the Company offered to the petitioner which he accepted, in which it was clearly stipulated that the services shall take effect from 01-06-1994 and automatically terminate on 07-07-1994, and if these terms and conditions were acceptable to the person then he may signify his acceptance for this temporary appointment. Additionally, the petitioner accepted the terms and conditions of extended services.
The Court referred to Bajaj Auto, Ltd. v. R.P. Sawant, 1999 SCC OnLine Bom 825 wherein it was held that every employment need not necessarily be of permanent nature, and it can be casual, badli or temporary and none of such employment by itself is an unfair labour practice. To attract Item 6 of the Act, employment needs to continue for years with the object of depriving them of the status and privileges of permanent employees.
The Court said that it cannot be blind to the fact that at least for a temporary period unemployed people would get employment and solve their problem of bread if not butter. Further, it said that it cannotforce the employer to continue the temporary employees on a permanent basis after his needs are completed and there is no work available for them.
The Court opined that if this happens, then, it will have an adverse effect, as no employer would offer any temporary employment and he might better not accept increased orders and would remain satisfied with what he has. A kind of stagnation in society would come to stay. The industrial wheels would be on slow motion. Such a situation would have very serious repercussions in the long run. Besides, the legislature has not been unaware of the fact that every industry has its own season for increase or reduction in the demands resulting in increase or reduction in the requirement of the number of employees. Thus, a temporary employment for every seasonal increase in the industrial activities is not an unfair labour practice.
The Court held that the petitioner failed to establish the case of “unfair labour practices” as the nature of the appointment offered to the petitioner and accepted by him didn’t fall under Entry 10 of 5th Schedule, because the Entry specifies the appointment of collective nature and not of individual nature, apparent from the words ‘workmen’ and ‘them’ in the Entry. Therefore, to invoke the Clause-10 of 5th Schedule of the Act, the appointment of all the workmen has to be examined and not an individual workman.
The Court found the Shankar Bhimrao Kadam v. Tata Motors Ltd., 2019 SCC OnLine Bom 7369 judgment to be misplaced in this case by the petitioner, as it was dealing with a matter in which dozens of workmen had assailed the action of Tata Motors and the nature of the appointment letters issued to the workmen were different from the one issued in the present case. Also, in the present matter the services of the petitioner were co-terminus with the end of period stipulated in the appointment letters and no termination letter was issued which could have fallen within the definition of ‘retrenchment’. The Supreme Court in an appeal filed against the abovementioned judgment, “kept the question of law open’ based on the peculiar facts and circumstances.
Therefore, the Court in the present case said that it was not inclined to treat the Bombay High Court judgment as a binding precedent as the decision of the Bombay High Court was on different facts and doesn’t correspond to the present case.
The Court referred to the definition of ‘retrenchment’ under Section 2(oo) of the Act, which states 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:
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voluntary retirement of the workman; or
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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
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termination of the service of a workman on the ground of continued ill- health.
The Court said that the petitioner’s appointment/ engagement was co-terminus as per the specific stipulations contained in the letter of appointment as well as extensions, and automatic cessation of his services. Thus, it would not fall under the definition of retrenchment.
Therefore, the Court found that the reference made by ALC was incompetent and without jurisdiction and any act of the Company towards the petitioner doesn’t amount to “unfair labour practices”. Thus, the Court upheld the Industrial Tribunal judgment and dismissed the petition.
[Dinesh Pal Singh v. Presiding Officer, 2023 SCC OnLine All 375, Order dated 06-07-2023]
Advocates who appeared in this case :
Counsel for petitioner: Advocate Vijai Krishna Agnihotri
Counsel for respondent: Chief Standing Counsel, Advocate Piyush Bhargava