The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 23655 of 2015 Sri Chinmaya Prasad Rout …. Petitioner -versus- Presiding Officer, Labour Court, Bhubaneswar and others …. Opposite Parties Advocates appears in the case: For petitioner: Durga Prasad Nanda, Sr. Advocate Mr. B.P. Panda, Advocate For Opp. Parties: Mr. Sibasish Mishra, Advocate CORAM: JUSTICE ARINDAM SINHA JUSTICE SIBO SANKAR MISHRA ---------------------------------------------------------------------------------------------- Date of Hearing and Judgment: 9th October, 2023 ---------------------------------------------------------------------------------------------- ARINDAM SINHA, J.
Legal Reasoning
1. Mr. Panda, learned advocate appears on behalf of petitioner- workman, who has impugned award dated 23rd March, 2015 of the labour Court. By it the labour Court held that the termination of service of the workman by the management was due to efflux of time and by non-renewal of service. The workman has received one month’s salary in Page 1 of 9 // 2 // lieu of one month notice prior to the termination. Hence, the termination by order dated 6th November, 2010 is legal and justified. 2. He draws attention to the advertisement/notice published on, he submits, 10th April, 2006. He lays emphasis that engagement was to be on contract basis for a period of one year and extendable subject to requirement and performance. He demonstrates, pursuant to his client having had applied, he was called for written test by communication dated 1st July, 2006. There was interview call letter dated 2nd August, 2006 and by letter dated 24th August, 2006 he was contractually engaged as Operator (Electrical) at Bhawanipatna diary for a period of one year or until further orders, whichever is earlier. It was also agreed that the engagement could be terminated by one month’s notice on either side. He submits, on getting the engagement his client was asked to give an undertaking. 3. There were two subsequent communications, respectively dated 12th February, 2009 and 18th May, 2009, extending his engagement, first upto 30th April, 2009 and then till 31st October, 2009. His client continued to work as engaged beyond 31st October, 2009. By letter dated 6th November, 2010 his service was terminated alleging that his engagement period had expired on 30th October, 2010. He submits, there was no extension beyond 31st October, 2009 but termination by said W.P.(C) no. 23655 of 2015 Page 2 of 9 // 3 // letter dated 6th November, 2010. In the circumstances, his client stood retrenched on termination of his service without complying with provisions in section 25-F of Industrial Disputes Act, 1947. 4. Mr. Panda relies on judgment of the Supreme Court in Hindustan Steel Ltd. v. The Presiding Officer, Labour Court, Orissa reported in (1976) 4 SCC 222. He places paragraphs 1 and 6 (Manupatra print). According to him, facts in the case draw application of the judgment in aid of his client. The Supreme Court had therein upheld finding of the labour Court, of wrongful termination contrary to provisions in section 25-F. He seeks interference by setting aside and quashing impugned award and appropriate relief to his client. 5. Mr. Mishra, learned advocate appears on behalf of opposite party nos. 2 and 3 (management). He submits, ext.K before the labour Court was the extension of petitioner’s service, to expire on 31st October, 2010. Mr. Panda submits, the exhibit was marked with objection of his client. On query from Court we have not been shown the extension communicated to petitioner. Hence, so far as ext.K before the labour Court is concerned, it cannot be said to be relevant evidence. This is because the engagement being contractual, extension of the period needed to be communicated to the workman, for reliance thereupon against the workman. W.P.(C) no. 23655 of 2015 Page 3 of 9 // 4 // 6. Mr. Mishra also relies on judgment of the Supreme Court in Municipal Council, Samrala v. Raj Kumar reported in (2006) 3 SCC 81, paragraphs 5, 6, 8, 9 and 11 (Manupatra print). He points out, in Hindustan Steel Ltd. (supra) there was no occasion to consider and interpret clause (bb) under section 2(oo) as facts in the case made applicable proviso under clause (a) in section 25-F, since omitted. However, in Raj Kumar (supra) the Supreme Court specifically dealt with facts therein on application of said clause. The Supreme Court also took note that the workman therein had filed an affidavit, inter alia, stating that he had no objection if the municipal council would have dispensed with his services as they have a right do this. In those facts the Supreme Court went on to find that the termination was legal and justified on the engagement made upon contract. The Supreme Court interpreted clause (bb) to have two parts. Mr. Mishra submits, petitioner’s case is such that it can be said to fall within both parts. 7. He draws attention to undertaking dated 5th September, 2006 given by petitioner. He relies on a paragraph therein, reproduced below. “I Sri Chinmay Prasad Raut, Son of Late Umesh Chandra Raut who has been given an offer of contract appointment for Operator (Electrical) job carrying a consolidated salary of Rs.2,500/- per month is fully aware that my appointment is purely temporary and on contract W.P.(C) no. 23655 of 2015 Page 4 of 9 // 5 // basis and can be terminated at any time without any notice and assigning any reason thereof.” (emphasis supplied) He submits, the contract was not renewed and there was termination. The termination was with authority, accepted by petitioner on his said undertaking. Impugned order is one with reasons and upon findings of fact. There should not be interference on judicial review. 8. To adjudicate the challenge we have to first ascertain the facts. We have seen petitioner had obtained contractual engagement. The notice clearly says that the period of engagement was one year and extendable, subject to requirement and performance. On petitioner having been engaged there were two communications made to him, respectively dated 12th February, 2009 and 18th May, 2009 extending his period of engagement up to 31st October, 2009. What is important is that petitioner had an order of engagement and thereafter extensions limiting the time up to 31st October, 2009. In the circumstances, as on 1st November, 2009 the cause for the management arose to not renew the contract. It appears from the record that the management purported to terminate the engagement by writing dated 6th November, 2010 saying that the engagement period expired on 30th October, 2010. It emerges that on 1st November, 2009 there was no disengagement. We, as aforesaid, have not been shown that petitioner was communicated W.P.(C) no. 23655 of 2015 Page 5 of 9 // 6 // any extension beyond 31st October, 2009. The facts standing thus, first part of clause (bb) as interpreted in Raj Kumar (supra) cannot be availed by the management in having disengaged petitioner one year later. 9. Moving on to the second part, we have to see whether in the facts and circumstances, the retrenchment was in compliance with the provisions in section 25-F since, petitioner was continuing as engaged after the contractual period. The authority of the management to terminate, as undertaken by petitioner, was authority to terminate during subsistence of the period, as extended. 10. The Supreme Court in Raj Kumar (supra) considered the facts in context of contractual employment not making the workman either a permanent or a temporary appointee. That being so it cannot be lost sight of that a workman, regardless of how he has been appointed, is entitled to benefit of the provisions regarding retrenchment in the definitions section as well as in section 25-F. The contract having had expired on 31st October, 2009, the management was thereafter obliged to comply with the provisions in section 25-F. There does not appear to be any dispute regarding petitioner having been in continuous service within meaning of section 25- B(1). 11. Hindustan Steel Ltd. (supra) has clear finding of fact that there was no order terminating services of the workmen in that case. According to the W.P.(C) no. 23655 of 2015 Page 6 of 9 // 7 // management, the termination was automatic on the expiry of the contractual period of service. That having been a fact, illumination can be had by reproducing paragraph 6 (Manupatra print) from the judgment. “6. This decision, as conceded by the Solicitor General, goes against the contention of the appellant and is conclusive on the main question that arises for consideration in this appeal. It may also be noted that section 25F(a) which lays down that no workman who has been in continuous service for not less than one year under an employer shall be retrenched by that employer unless he has been given one month's notice or wages in lieu of such notice, has a proviso which says that "no such notice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of service". Clearly, the proviso would have been quite unnecessary if retrenchment as defined in section 2(oo) was intended not to include termination of service by efflux of time in terms of an agreement between the parties. This is one more reason why it must be held that the Labour Court was right in taking the view that the respondents were retrenched contrary to the provisions of section 25F.” The Supreme Court went with finding of the labour Court to say it was right in taking the view that the workmen were retrenched contrary to the provisions of section 25-F. 12. In Raj Kumar (supra) the Supreme Court noted some facts in that case in paragraph 3 (Manupatra print) reproduced below. W.P.(C) no. 23655 of 2015 Page 7 of 9 // 8 // “3. The said proposal came to be accepted by the Executive Council. Pursuant thereto the Respondent herein was appointed as a clerk on contract basis on a monthly salary of Rs.1000. In the offer of appointment it was specifically averred that “his services will be availed till it is considered as fit and proper and necessary. After that his services will be dispensed with.” The Respondent affirmed an affidavit inter alia stating: (1) That I am engaged as clerk on contract basis by the Municipal Council, Samrala @ Rs. 1000 p.m. from 24-6- 1994. (2) That I am ready to do whatsoever job or department assigned to me by the Municipal Council, Samrala. (3) That I have no objection if the Municipal Council, Samrala would have dispensed with my services as they have a right to do this. His services were dispensed with by an order dated 22-5- 1997.” (emphasis supplied) We notice that the appointment in that case was not limited by time but the management had said to the workman, his services will be availed till it is considered as fit and proper and necessary. After that his services will be dispensed with. Hence, the Supreme Court in dealing with the case made the interpretation of clause (bb) in section 2 (oo) to have two parts. Firstly, the part that makes the engagement terminable on expiry or efflux of time and secondly, on a termination directed by the management. Appellant W.P.(C) no. 23655 of 2015 Page 8 of 9 // 9 // (management) in that case was found to have legally terminated under second part of clause (bb) in section 2(oo). In this case the contractual engagement, though limited by time, was allowed to continue. We reiterate, petitioner continued to be engaged beyond the engagement period. The engagement having continued beyond the contractual period, petitioner was a workman entitled to compliance with the provisions regarding retrenchment.
Decision
13. We set aside and quash impugned order. The matter is restored to the labour Court for consideration on the question of reinstatement or compensation, for wrongful retrenchment in the facts and circumstances we have found. 14. The writ petition is allowed and disposed of. (Arindam Sinha) Judge (S.S. Mishra) Judge Sks Signature Not Verified Digitally Signed Signed by: SISIR KUMAR SETHI Designation: PERSONAL ASSISTANT Reason: Authentication Location: ORISSA HIGH COURT Date: 10-Oct-2023 16:22:19 W.P.(C) no. 23655 of 2015 Page 9 of 9