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CASE NO.: Appeal (civil)  2554 of 2005

PETITIONER: Punjab State Electricity Board

RESPONDENT: Darbara Singh

DATE OF JUDGMENT: 17/11/2005

BENCH: ARIJIT PASAYAT & R.V. RAVEENDRAN

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.                   The Punjab State Electricity Board (in short the  ’Board’) questions legality of the judgment rendered by a  Division Bench of the Punjab and Haryana High Court holding  that the respondent had rendered service in excess of 240  days in twelve calendar months preceding his retrenchment  and, therefore, provisions of Section 25-F of the Industrial  Disputes Act, 1947 (in short the ’Act’) were required to be  followed.  The High Court upheld the judgment of the Labour  Court, Amritsar which had directed respondent’s  reinstatement with 25% back wages from the date of demand  raised by the respondent.   

       The factual position in a nutshell is as under:

       On 4.2.1988 the Board appointed respondent as Peon on  daily wage basis from 8.1.1988 to 29.2.1988. It was  indicated that if the work of the daily wager was not found  satisfactory or if a regular employee joins, his services  would be deemed to be terminated without any notice.  It was  also indicated therein that the daily wager was appointed  against vacant post which was temporary in character. On  7.3.1988 the period indicated was extended on the same  terms. There were similar extensions on 30.6.1988,  10.11.1988 and 7.4.1989.  On 12.5.1989 one Surat Singh was  appointed on a permanent basis. In terms of the orders of  the engagement, the respondent’s services were dispensed  with in the month of June 1989 in terms of the terms and  conditions of the contractual appointment. After about 8  years on 1.4.1997 the respondent sent a demand notice  questioning the order of disengagement. The Presiding  Officer, Labour Court passed an award on 14.1.2003 holding  that disengagement of respondent was illegal and he was  entitled to reinstatement. However, taking note of the  delayed demand, the wages were restricted. The writ petition  filed before the Punjab and Haryana High Court as noted  above was dismissed.

       Learned counsel for the appellants submitted that the  appointment was for a fixed period and, therefore, the  provisions of Section 2(oo)(bb) were clearly applicable.  It  was also submitted that the abnormal delay in raising the  demand making a stale claim has been lightly brushed aside  by the Labour Court and the High Court.

       In response, learned counsel for the respondent

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submitted that there was no definite material to show that  the appointment was for a fixed period.  On the contrary the  respondent was permitted to work for several periods.  As  the respondent was representing to the authorities, it  cannot be said that there was any delay.  The plea in this  regard has been accepted by the Labour Court.  In fact, an  appeal was filed on 7th September, 1989 and the appellant  has failed to prove that the same was disposed of.  

        The position of law relating to fixed appointments and  the scope and ambit of Section 2(00)(bb) and Section 25-F  were examined by this Court in several cases.   

       In view of the findings in the background of the legal  position, we do not consider it necessary to go into the  question as to whether the demand raised after a long lapse  of time is to be considered fatal.      

       We find that the High Court’s judgment is unsustainable  on more than one count. 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  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

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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  Cooperative Sugar Mills Ltd. v. Sowaran Singh (2005 (7)  Supreme 165).            Section 2(oo)(bb) reads as follows:

"(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-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 contained therein".           The materials on record clearly establish that the  engagement of the workman was for specific period and  conditional. It was clearly indicated that on appointment of  a regular employee, his engagement was to come to an end.  

       In view of the position as highlighted in Morinda Coop.  Sugar Mills,  Anil Bapurao and Batala Co-operatives cases  (supra), the relief granted to the workman by the Labour

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Court and the High Court cannot be maintained.                                                   Therefore, the orders of the Labour Court and the High  Court are clearly untenable and are quashed. Our  interference shall not stand on the way of appellant  considering the case of the respondent for engagement on  such terms as is deemed proper by it.  If question of any  disqualification on account of crossing of age limit arises,  the appellant shall condone it as a special case in view of  the background facts of the case.  

       The appeal is allowed with no order as to costs.