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CASE NO.: Appeal (civil)  5458 of 2004

PETITIONER: Kishore Chandra Samal

RESPONDENT: The D.M,Orissa State Cashew Development Corpt.Ltd.  

DATE OF JUDGMENT: 17/11/2005

BENCH: ARIJIT PASAYAT & R.V. RAVEENDRAN

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.  

       Appellant calls in question legality of the judgment  rendered by a Division Bench of the Orissa High Court  setting aside the award of Labour Court, Bhubaneswar dated  29.10.1997 passed in I.D. Case No.90 of 1994 which directed  the appellant-Corporation to reinstate the present appellant  with full back wages.

       Factual background in a nutshell is as under:-

       The case of the appellant was that he was appointed as  Junior Typist on N.M.R. basis by the respondent with effect  from 12.7.1982. He continued in the said post for more than  one year. All of a sudden another order was issued  appointing him for 44 days with effect from 1.10.1983. On  its expiry on 15.11.1983 another appointment order was  issued on 5.12.1983 for a fixed period giving effect from  16.11.1983.  Thereafter, he was allowed to continue for  about 8 months. Later he was appointed on ad hoc basis in  the usual scale of pay of Rs.255-5-285-EB-7-306-12-390/-  with effect from 23.7.1985. Thereafter without any rhyme or  reason, he was again kept in N.M.R. on payment of Rs.10/-  per day for a period of 90 days from 1.12.1985 to 28.2.1986.   Thereafter he was allowed to continue from 29.6.1986 to  25.9.1986 and further from 27.9.1986 to 24.12.1986.   Thereafter, he was allowed to continue without any break  till 11.8.1989. Alleging that refusal of work beyond  11.8.1989 amounting to retrenchment, he raised dispute  giving rise to the above reference.   

       The respondent’s case before the Labour Court was that  the appellant was working on N.M.R. basis as a Typist with  effect from 12.7.1982. He was appointed for a specific  period on daily wage basis. On consideration of the  representation for further engagement and having regard to  the requirement, he was engaged again and again on daily  wage basis for specific period. The last order of  appointment on N.M.R. basis was issued to him on 28.4.1989.   Thereafter no further extension was given.  Thereafter, his  service automatically ceased and it is not a case of  retrenchment.   

       The Labour Court on perusal of the evidence on record  held that the appellant served continuously for many years  covering the requisite period of continuous service in a  calendar year.  Although there is no evidence that the post

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of Typist was a permanent one, he was engaged from time to  time and at the time of termination as the provisions of  Section 25-F of the Industrial Disputes Act, 1947 (in short  the ’Act’) had not been complied with, termination of his  service is illegal and unjustified.  On the basis of the  said finding, the Labour Court directed the appellant to be  reinstated in his former post.

       The High Court accepted the stand of the respondent- Corporation that the appointment of the writ petitioner  (appellant herein) was on N.M.R. basis for a fixed period of  time on the basis of payment at different rates.  The  contractual period of engagement ended on 3.5.1989 and there  was no renewal thereafter.  Since the engagement was for a  fixed period, the High Court held that the award of the  Labour Court was to be set aside.

       In support of the appeal, learned counsel for the  appellant submitted that the High Court failed to notice  that the period fixed was a camouflage to avoid  regularization. Reliance was placed on a decision of this  Court in S.M. Nilaikar and Ors. v. Telecom District Manger,  Karnataka (2003 (4) SCC 27) where it was held that mere  mention about the engagement being temporary without  indication of any period attracts Section 25-F of the Act if  it is proved that the concerned workman had worked  continuously for more than 240 days.

       The position of law relating to fixed appointments and  the scope and ambit of Section 2(oo)(bb) and Section 25-F  were examined by this Court in several cases. In Morinda  Coop. Sugar Mills Ltd. v. Ram Kishan and Ors. (1995 (5) SCC  653) it was observed as follows:

"4. It would thus be clear that the  respondents were not working throughout  the season. They worked during crushing  seasons only. The respondents were taken  into work for the season and consequent  to closure of the season, they ceased to  work.

5.      The question is whether such a  cessation would amount to retrenchment.  Since it is only a seasonal work, the  respondents cannot be said to have been  retrenched in view of what is stated in  clause (bb) of Section 2(oo) of the Act.  Under these circumstances, we are of the  opinion that the view taken by the  Labour Court and the High Court is  illegal. However, the appellant is  directed to maintain a register for all  workmen engaged during the seasons  enumerated hereinbefore and when the new  season starts the appellant should make  a publication in neighbouring places in  which the respondents normally live and  if they would report for duty, the  appellant would engage them in  accordance with seniority and exigency  of work."  

       The position was re-iterated by a three-Judge Bench of  this Court Court in Anil Bapurao Kanase v. Krishna Sahakari

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Sakhar Karkhana Ltd. and Anr. (1997 (10) SCC 599). It was  noted as follows:

"The learned counsel for the appellant  contends that the judgment of the High  Court of Bombay relied on in the  impugned order dated 28.3.1995 in Writ  Petition No.488 of 1994 is perhaps not  applicable. Since the appellant has  worked for more than 180 days, he is to  be treated as retrenched employee and if  the procedure contemplated under Section  25-F of the Industrial Disputes Act,  1947 is applied, his retrenchment is  illegal. We find no force in this  contention. In Morinda Coop.Sugar Mills  Ltd. v. Ram Kishan, in para 3, this  Court has dealt with engagement of the  seasonal workman in sugarcane crushing;  in para 4 it is stated that it was not a  case of retrenchment of the workman, but  of closure of the factory after the  crushing season was over. Accordingly,  in para 5, it was held that it is not  ’retrenchment’ within the meaning of  Section 2(oo) of the Act. As a  consequence the appellant is not  entitled to retrenchment as per clause  (bb) of Section 2(oo) of the Act. Since  the present work is seasonal business,  the principles of the Act have no  application. However, this Court has  directed that the respondent management  should maintain a register and engage  the workmen when the season starts in  the succeeding years in the order of  seniority. Until all the employees whose  names appear in the list are engaged in  addition to the employees who are  already working, the management should  not go in for fresh engagement of new  workmen. It would be incumbent upon the  respondent management to adopt such  procedure as is enumerated above."

       Recently, the question was examined in Batala Co- operative Sugar Mills Ltd. v. Sowaran Singh (2005 (7)  Supreme 165)         Section 2(oo) of the Act reads as follows: "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 -  (a) ...... (b) ...... (bb) termination of the service of the  workman as a result of the non-removal 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  contained therein"

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       The decision in S.M. Nilaikar’s case (supra) has no  application because in that case no period was indicated and  only indication was the temporary nature of engagement.  In  the instant case in all the orders of engagement, specific  periods have been mentioned.  Therefore, the High Court’s  order does not suffer from any infirmity.

       The High Court had noted that its order would not stand  in the way of Corporation considering the case of the  workman for appointment.  It is submitted by learned counsel  for the appellant that representation was made in this  regard which has been turned down. Learned counsel for the  respondent-Corporation submitted that the representation was  for a permanent absorption.  Since there was no post vacant,  the representation was rejected.  The dismissal of the  present appeal shall not stand on the way of the Corporation  engaging appellant taking into account his experience and  while considering the appellant’s case the claims of others  making similar claims shall be considered in proper  perspective.                          Appeal is allowed. Costs made easy.