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CASE NO.: Appeal (civil)  4769 of 2006

PETITIONER: Gangadhar Pillai

RESPONDENT: M/s. Siemens Ltd

DATE OF JUDGMENT: 10/11/2006

BENCH: S.B. Sinha & Dalveer Bhandari

JUDGMENT: J U D G M E N T (Arising out of SLP (C) No. 9637 of 2006)  

S.B. SINHA, J.

Leave granted.

       Respondent has its own Engineering and Field Service department  which undertakes jobs of industrial project installation, erection,  commissioning of electrical/ electronic equipments which are supplied by it  or the same are directly brought by its clients at various projects/ sites as per  their requirements.   

       The services of Respondent are utilized for the aforesaid work as a  contractor which is a project/ site work required to be completed within the  stipulated period, time and quality being the essence of the contract entered  into by and between the parties.   

       Respondent used to engage temporary personnel in the category of  skilled, semi-skilled and unskilled workers.  Appellant had been appointed  by Respondent on temporary basis for duration of the project/ site work and  on completion thereof his services used to be terminated.

       Indisputably, Appellant used to be employed almost on a regular basis  since 1978.  His services were availed by Respondent not only for its various  projects in India but also in Iraq.   

       Procedure followed for availing the services of Appellant by  Respondent had been that whenever such contract was obtained and project  work started at the instance of the Head Office, a telegram used to be sent to  him for availing his services whereupon he was asked to join the site office.   Appointment letters used to be issued by the said office were in a prescribed  proforma, the relevant portion from a sample copy whereof reads as under:

"LETTER OF APPOINTMENT FOR  TEMPORARY PERSONNEL

Name                    : Mrs. R. Gangadharan Pillai Roll No.                : 133 Local Address:  : Room No. 148/4, Indhira                          Nagar, Chambur, Bombay-74 Permanent Address: Saraswati Vilasm Ezhlcon                          P.O. Anitose, Kerala Date of Birth   : 22 years Consolidated salary/ Wages per month : Rs. 200/-

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Date of Joining : 22.5.78 Type of Employment: Helper

Dear Sir,

We have pleasure in appointing you on the terms  mentioned above and conditions stipulated  herebelow:- Your services are required for execution of  erection job at F.C.-1 on purely temporary basis  for a period of Three month (s) from 22.5.78 to  21.8.78, at the expiry of which your appointment  will automatically stand terminated without any  notice, unless the period of appointment is  extended in writing.  During the temporary period  of your service either party is at liberty to  terminate the appointment without any notice and/  or assigning any cause or any compensation in lieu  thereof\005"

       A declaration used to be given by the employee concerned that the  contents thereof had been explained to him and upon understanding the same  he used to put his signature.   

       Before us, a chart has been filed to show that Appellant had worked  for as little as 4 days in a project upto 365 days in a year.   

       It, however, appears that he was temporarily appointed for different  projects at Rourkela Steel Plant, details whereof are as under:

S.No. Site From To No. of days  worked

1. Rourkela Steel Plant 18.10.1992 31.03.1994 530 2. -do- 01.01.1994 27.08.1994 150 3. -do- 26.09.94 06.04.1996 558 4. -do- 14.05.1996 10.05.2000 1458

       The services of Appellant came to an end on 10.5.2000.  He filed a  complaint petition before the Industrial Tribunal contending that Respondent  herein has resorted to unfair labour practice within the meaning of Item No.  6 of Schedule IV of the Maharashtra Recognition of Trade Unions and  Prevention of Unfair Labour Practices Act, 1971 (for short "the Act").  

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Before the Industrial Tribunal, the parties adduced their respective  evidences.   

       In his deposition, Appellant contended that he had regularly been  working in various projects of Respondent.  It was contended that the  services of personnel junior to him had been regularized and despite the fact  that in many years he had worked for 240 days, he used to be appointed for   temporary periods.  According to him, the very fact that he had been  working continuously since 1978 is itself an indicator to the fact that the job  was perennial in nature.

       The Industrial Tribunal by an award dated 4.8.2004, however, opined:

"\005Admittedly, as on this date, the Complainant  has not been in the employment of the Respondent.   Therefore, no question arises of giving any  direction to the Respondent company to confer any  status and privileges of permanent employee on  the Complainant.  Besides if the Complainant has  miserably failed to prove that the break in two  appointments of the Complainant was "artificial  break".  The appointment letter placed on file  manifest that the engagement of the Complainant  was for a specific period as mentioned therein.   Therefore, in my considered view, the substantial  controversy emerging from the instant complaint  has been in respect of alleged illegality on the part  of Respondent company in terminating his services  from 10.05.2000\005"

       It further came to the conclusion that the substantial controversy  revolved round the termination of Appellant’s services on 10.5.2000 and,  thus, the same is required to be considered in terms of Item 1 of Schedule IV  of the Act and not under Item 9 of Schedule IV thereof.   

       It was observed:

"I may observe that the Complainant could have  taken recourse to section 32 of the M.R.T.U. &  P.U.L.P Act, to make prayer before this Court to  decide the controversy pertaining to his alleged  illegal termination of service dated 10.05.2000,  had his services been terminated by the  Respondent company pending the complaint under  items 5,6 and 9 of Schedule IV for redressal of his  grievances of giving permanency in the  employment.  However, admittedly the  Complainant has approached this Court under said  items of unfair labour practice, praying for  permanency after termination of his services w.e.f.  10.05.2000.  I, therefore, find the instant complaint  being highly unsustainable as I find the substantial  controversy in respect of admitted termination of  his services by the Respondent w.e.f. 10.05.2000  for which a special forum viz. Labour Court has  been provided under the M.R.T.U. & P.U.L.P.  Act."

       A writ petition was filed by Appellant aggrieved by and dissatisfied  therewith.  The said writ petition was also dismissed by a learned Single  Judge by a judgment and order dated 8th December, 2004 opining:

"\005It is well settled by a catena of decisions of this  Court as well as of the Apex Court that the project  related employees cannot as a matter of right,

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demand any status and privileges of permanent  employee.  Considering the same merely because  the Petitioner has been engaged from time to time  in relation to the projects undertaken by the  Respondent Company, no fault can be found in the  impugned order holding that there was no unfair  labour practice on account of such employment  and non grant of status and privileges of permanent  employee to the Petitioner\005"

       A Division Bench of the High Court in an intra-court appeal refused  to interfere with the judgment of the learned Single Judge stating:

"Then a reasoned order followed thereafter.  The  learned Judge of the Industrial Court came to the  conclusion that the unfair labour practices, as  alleged by the complainant \026 present appellant, are  not committed.  The finding on the issue is given  on appreciation of the evidence by the learned  Industrial Court.  After giving such finding, in  paragraph 13 the learned Industrial Judge has  observed that factually the services of the appellant  were terminated on 10.5.2000 and, therefore,  unless he seeks and gets reinstatement to the job,  he again complained of an unfair labour practice  because the unfair labour practice committed  during the course of the employment.  The  observations in regard to jurisdiction, therefore,  were completely ancillary, and the learned  Industrial Judge gave a finding that the  commission regarding unfair labour practices was  not proved.  This order was challenged before the  learned Single Judge of this Court and the learned  Judge, on appreciation of the contentions raised,  rejected the writ petition.  The learned Single  Judge had analysed the order passed by the  Industrial Court and has observed as under:-

"The Industrial Court, after hearing the  parties on analysis of the materials on record  while dismissing the complaint, has held  that what has been reiterated in the  complaint was that the complainant was  engaged at various sites of the respondents  after giving artificial breaks in the service."

Then, the learned Single Judge has given a finding  that in such circumstances, there is no question of  adoption of an unfair labour practice and,  therefore, declined to interfere under Article 227 of  the Constitution.  That being so, the Letters Patent  Appeal, obviously, is not tenable.  Even otherwise,  we see no fault with the order impugned\005"

       Mr. Colin Gonsalves, learned senior counsel appearing on behalf of  Appellant, in support of this appeal would contend that in the instant case a  skilled workman of a multinational corporation had been kept on temporary  basis for 22 years by giving artificial breaks in service and by engaging and  disengaging him on regular basis.  Item 6 of Schedule IV of the Act, it was  submitted, covers work of a regular or perennial nature and yet the employer  appointed Appellant merely on temporary basis.  The question of temporary  appointment of a project related work, it was urged, would not arise as:

(i)     the period is sufficiently large;   (ii)    Respondent gets contract on regular basis and number of days for

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which services of the employee are taken correspondent to the  work of a regular employee is more than 240 days a year; and  (iii)   no explanation has been offered by Respondent as to why the  appointments have to be of such a nature.

       Drawing our attention to the evidence produced by Appellant before  the Tribunal, it was submitted that from the statements it was necessary to  draw an inference as regards existence of a critical case and, particularly, in  view of the fact that the juniors to Respondent were made permanent but the  same benefit was denied to him.  It was urged that the recuse as regards lack  of qualification on the part of Appellant could not have been a ground to  regularize his services as his experience for a period of 22 years had made  up the lack of educational qualification.

       Lastly, it was contended that assuming that the termination of the job  was valid, Appellant could not have been denied the benefit of 22 years’ of  service in the event it is held that Respondent is guilty of taking recourse to  unfair labour practices within the meaning of the Act.

       Mr. P.K. Rele, learned senior counsel appearing on behalf of  Respondent, on the other hand, would draw our attention to the chart for the  purpose of showing that Appellant had never been appointed in any  continuous job and his services were taken as and when the same became  available.   

       Drawing our attention to the practice and procedure for such  appointment, as noticed hereinbefore, it was submitted that the appointment  letters categorically stated about the nature of job, the period of employment  and the fact that on expiry of the said period, his employment would come to  an end.   

       The learned counsel pointed out that not only the legal dues of  Appellant had been paid, he had also been paid compensation which has  been accepted by him without any demur except the provident fund dues  and, thus, it was not open to him to take a different stand before the  Tribunal.

       The Act was enacted not only for recognition of trade unions but also  prevention of unfair labour practices.  What is an ’unfair labour practice’ has  been defined in Section 26 of the Act to mean all the practices listed in  Schedules II, III and IV.  Section 27 of the Act prohibits engagement of an  employee by any employer or union in any unfair labour practice.  Section  28 provides for procedure for dealing with complaints relating thereto.   Schedule IV of the Act enumerates general unfair labour practices on the  part of the employers.  Clause 6 of Schedule IV of the Act reads as under:

"6. To employ employee as "badlis", casuals or  temporaries and to continue them as such for  years, with the object of depriving them of the  status and privileges of permanent employees."

       The question as to whether an employee had intermittently been  engaged as casual or temporary for a number of years is essentially a  question of fact.  The issue as to whether unfair labour practices had been  resorted to by the employer or not must be judged from the entirety of the  circumstances brought on records by the parties.

       Only because an employee has been engaged as a casual or temporary  employee or that he had been employed for a number of years, the same by  itself may not lead to the conclusion that such appointment had been made  with the object of depriving him of the status and privilege of a permanent  employee.  Unlike other statutes, the employer does not have any statutory  liability to give permanent status to an employee on completion of a period  specified therein.  What is, therefore, necessary to be considered for drawing  an inference in terms of the said provisions would be to consider the entire

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facts and circumstances of the case.   

       A finding of fact has been arrived at, keeping in view the nature of  engagement offered to Appellant by Respondent, by the Tribunal.  The  burden to prove that Respondent resorted to unfair labour practice  indisputably was on the workman.  There had been breaks in service but  then it has rightly been held that the same were not artificial ones.   Requirement to employ employees on a temporary basis is writ large on the  face of the nature of the project undertaken by Respondent.  There was  nothing on record to show that it had been getting contract on regular basis.   We have perused the charts filed by the parties herein wherefrom it appears  that the contract awarded in favour of Respondent by its various clients had  not only been in different parts of the country but also outside the country.   It has also not been disputed before us that although the name of Appellant  used to be recommended by the Head Office of Respondent but for  employing him, a telegram used to be sent from the site office, in response  whereto he would report at the place specified in the telegram and would be  offered appointment in the prescribed proforma as noticed supra.

       The period of employment had all along been commensurate with the  period of work undertaken by Respondent under the respective contracts.  It  may be a small contract or it may be a big one.  Period of contract in each  case was indeed bound to be different.  Each site office of Respondent \026  Company is also a separate establishment.

       It has furthermore not been denied or disputed that services of the  employees engaged on such terms would come to an end on completion of  the period of contract.  Such retrenchment would come within the purview  of Section 2(oo)(bb) of the Industrial Disputes Act.  Once the period of  contract was fixed and the same was done keeping in view the nature of job,  it cannot be said that the act of the employer in terminating the services of  Appellant was actuated by any malice.  Such an act on the part of the  employer cannot be said to have been resorted to for defrauding an  employee.  The object of such temporary employment was bona fide and not  to deprive the concerned employee from the benefit of a permanent status.   We, having regard to the fact situation obtaining herein, cannot infer that the  findings of the Tribunal as also the learned Single Judge of the High Court  were manifestly erroneous warranting exercise of our extraordinary  jurisdiction under Article 136 of the Constitution of India.   

       It is not the law that on completion of 240 days of continuous service  in a year, the concerned employee becomes entitled to for regularization of  his services and/ or permanent status.  The concept of 240 days in a year was  introduced in the industrial law for a definite purpose.  Under the Industrial  Disputes Act, the concept of 240 days was introduced so as to fasten a  statutory liabilities upon the employer to pay compensation to be computed  in the manner specified in Section 25-F of the Industrial Disputes Act, 1947  before he is retrenched from services and not for any other purpose.  In the  event a violation of the said provision takes place, termination of services of  the employee may be found to be illegal, but only on that account, his  services cannot be directed to be regularized.  Direction to reinstate the  workman would mean that he gets back the same status.

       In Madhyamik Siksha Parishad, U.P. v. Anil Kumar Mishra and  Others etc. [AIR 1994 SC 1638 : (2005) 5 SCC 122], this Court has  categorically held:

"\005The assignment was an ad hoc one which  anticipatedly spent itself out. It is difficult to  envisage for them the status of workmen on the  analogy of the provisions of the Industrial Disputes  Act, 1947, importing the incidents of completion  of 240 days’ work. The legal consequences that  flow from work for that duration under the  Industrial Disputes Act, 1947, are entirely different

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from what, by way of implication, is attributed to  the present situation by way of analogy. The  completion of 240 days’ work does not, under that  law import the right to regularisation. It merely  imposes certain obligations on the employer at the  time of termination of the service. It is not  appropriate to import and apply that analogy, in an  extended or enlarged form here."

       In M.P. Housing Board v. Manoj Shrivastava [(2006) 2 SCC 702],  this Court held:

"It is now well settled that only because a person  had been working for more than 240 days, he does  not derive any legal right to be regularised in  service. (See Madhyamik Shiksha Parishad, U.P.  v. Anil Kumar Mishra; Executive Engineer, ZP  Engineering Divn. v. Digambara Rao; Dhampur  Sugar Mills Ltd. v. Bhola Singh; Manager,  Reserve Bank of India v. S.     Mani and Neeraj  Awasthi)"

       The learned senior counsel placed strong reliance upon a decision of  this Court in Chief Conservator of Forests and Another v. Jagannath Maruti  Kondhare and Others [(1996) 2 SCC 293] wherein this Court was  considering the question of appointment of a person in the social forestry  services.  The Bench inter alia noticing the decisions of this Court in State of  Haryana v. Piara Singh [(1992) 4 SCC 118] opined that they are entitled to  regularization of services.  Piara Singh (supra) has since been overruled by a  Constitution Bench of this Court in Secretary, State of Karnataka and Others  v. Umadevi [(2006) 4 SCC 1]

       It may, however, be noticed that in Chief Conservator of Forests  (supra) the employer was the State.  Respondent therein used to be employed  at the same place by the Conservator of Forests for the same purpose year  after year and in that factual matrix, it was opined:

 "We have given our due thought to the aforesaid  rival contentions and, according to us, the object of  the State Act, inter alia, being prevention of certain  unfair labour practices, the same would be  thwarted or get frustrated if such a burden is  placed on a workman which he cannot reasonably  discharge. In our opinion, it would be permissible  on facts of a particular case to draw the inference  mentioned in the second part of the item, if badlis,  casuals or temporaries are continued as such for  years. We further state that the present was such a  case inasmuch as from the materials on record we  are satisfied that the 25 workmen who went to the  Industrial Court of Pune (and 15 to the Industrial  Court, Ahmednagar) had been kept as casuals for  long years with the primary object of depriving  them of the status of permanent employees  inasmuch as giving of this status would have  required the employer to pay the workmen at a rate  higher than the one fixed under the Minimum  Wages Act. We can think of no other possible  object as, it may be remembered, that the  Pachgaon Parwati Scheme was intended to cater to  the recreational and educational aspirations also of  the populace, which are not ephemeral objects, but

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par excellence permanent. We would say the same  about environment-pollution-care work of  Ahmednagar, whose need is on the increase  because of increase in pollution. Permanency is  thus writ large on the face of both the types of  work. If even in such projects, persons are kept in  jobs on casual basis for years the object manifests  itself; no scrutiny is required. We, therefore,  answer the second question also against the  appellants."

         Our attention was also drawn to Union of India and Others v.  Ramchander and Another [(2005) 9 SCC 365] wherein again engagement of  the workman on a regular basis for a period of 89 days on each occasion was  held to be impermissible in law stating:

"The respondents were appointed against casual  labourers but nevertheless they continued in  service for four spells and that too their  reappointments were made immediately within a  few days of termination on completion of 89 days.  It shows that sufficient work was available with  the employer and had there been no termination on  completion of 89 days, they would have completed  240 days of continuous employment. In that view  of the matter the appellants had violated Section  25-G of the Industrial Disputes Act. We do not  find any error or illegality in the decision rendered  by the Division Bench. We direct the appellants to  re-employ the respondents as daily-wagers\005"

         In that case, this Court did not lay down any law having universal  application.  Directions were issued in the facts and circumstances of the  case.  It is worthwhile to note that this Court did not direct regularisaton of  services of the workman but merely directed Appellants therein to reemploy  Respondents as daily wagers.  The said decision, therefore, does not have  any application in the instant case.

       Yet again, reliance has been placed on Haryana State Electronics  Development Corporation Ltd. v. Mamni [2006 5 SCALE 164 : (2006) 9  SCC 434] wherein having regard to the fact situation obtaining therein the  action on the part of the employer to terminate the services of an employee  on regular basis and reappoint after a gap of one or two days was found to be  infringing the provisions of Section 25-F of the Industrial Disputes Act.   This Court held:

       "In this case the services of the respondent  had been terminated on a regular basis and she had  been re-appointed after a gap of one or two days.   Such a course of action was adopted by the  Appellant with a view to defeat the object of the  Act.  Section 2(oo)(bb) of the Industrial Disputes  Act, 1947, therefore, is not attracted in the instant  case."

       Unlike the Act, there is no provision for prevention of unfair labour  practices under the Industrial Disputes Act.  The view of the High Court as  upheld by this Court, merely negatived a contention that such appointment  came within the purview of Section 2(oo)(bb) of the Industrial Disputes Act.   This Court noticed various decisions rendered by it as regards payment of  backwages and in stead and place of reinstatement in service, compensation  was directed to be paid.    

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       In Buddhi Nath Chaudhary and Others v. Abahi Kumar and Others  [(2001) 3 SCC 328] wherein again reliance has been placed by the learned  counsel, has no application in the facts and circumstances of this case.

       We, therefore, do not find any reason to differ with the findings of the  High Court.                  We may, however, notice that this Court by an order dated 12.5.2006  observed:

"It   is   seen   from   the   papers   placed   before    us   that   the   worker,   the petitioner herein, was  in employment with the respondent M/s. Siemens  Ltd. from 22/5/1978 to 10.5.2000.  The chart has  also been placed before us showing the order of  appointment, period of work, days worked and  total days in a year.   It is seen from the Chart  that  the petitioner was appointed on several times and  terminated on a number of occasions  with some  break.   The petitioner was  terminated  from  service on 10.5.2000.   Since the petitioner was in  employment with the respondent herein from 1978  to 2000, we feel that the Management may  reconsider the plea of the petitioner on    sympathetic   grounds   and   provide   employment    in   the   same   or different project.  The petitioner  will not claim any back wages if the Management  provides some suitable employment in any of the  projects. The learned counsel for the    Management,   respondent   herein,   submits   that    he   will   ascertain   from   the respondent and  report to this Court after summer vacation."                  The learned counsel appearing on behalf of Respondent, however,  states that it is not possible for his client to offer any employment to  Appellant as it has not been executing any contract job itself any more.   According to it, it is not economically viable to appoint an employee on  permanent basis and the work is now depleting.  Our attention was further  drawn to the following statements made in this behalf:

"\005Engineering & Field Services Department has  since discontinued engagement of direct workmen  of the profile of the Petitioner at project site/s as an  outcome of re-engineering process and has started  outsourcing the said jobs in view of the  competitive advantage in terms of economy of  operation and flexibility it offers.  Also in view of  the complexity involved in execution of the project  execution job combined with the demands of client  demanding engagement of personnel with formal  qualification including the higher qualification viz.  BE, DEE, NCTVT, it is not possible for the  Company to engage people of the Petitioner’s  profile anymore."

       Mr. Rele, learned senior counsel, however, submitted that although  Appellant had been engaged on contract basis, Respondent was not averse to  using its good office with the contractors to see that he is engaged by it on  the site where work is going on.  An affidavit in this behalf has been filed  before this Court stating:

"As stated in the counter affidavit that the  Engineering & Field Services Department of the  company has since discontinued engagement of  direct workmen of the profile of the petitioner at

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the project sites and that the Company has started  outsourcing the said jobs, therefore, I talked to  M/s. JT Engineering, proprietor Mr. John Thomas,  having its office at Standard CHS, 301, A Wing,  Plot No. 394, Lokmanya Nagar, Panvel Pin  410206 one of our contractors, who are handling  the work of installation/ erection of equipment  currently at Enercon Ltd., Windfarm Project at  Ahmednagar, Maharashtra and the said contractor  has agreed to engage the petitioner at this site viz  Enercon Ltd., Ahmednagar, Maharashtra.  The said  contractor has further agreed to pay the following  emoluments to the petitioner : -  

(a)     Basic Pay               Rs. 7500/- pm (b)     Allowances              Rs. 2500/- pm                 Total   =       Rs. 10000/- pm"

       We, therefore, while dismissing the appeal must express our  satisfaction that Respondent has been able to provide some succour to  Appellant.                  For the views we have taken, we are of the opinion that there is no  merit in this case.  The appeal is dismissed.  No costs.