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CASE NO.: Appeal (civil)  4771 of 2006

PETITIONER: Bhogpur Co-op Sugar Mills Ltd.                           

RESPONDENT: Harmesh Kumar                                                      

DATE OF JUDGMENT: 10/11/2006

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T (Arising out of SLP (C) No. 17885 of 2005)  

S.B. SINHA, J.

Leave granted.

       Appellant is a cooperative society.  It is registered under the Punjab  Cooperative Societies Act, 1961.  It operates a sugar mill.  It is said to be a  seasonal industry.  At the beginning of the season, workmen are recruited  and they are retrenched at the end of it.  Respondent was appointed as a  seasonal workman.  He was appointed on daily wage basis.  On or about  14.03.1992, he raised an industrial dispute in terms of Section 2A of the  Industrial Disputes Act, 1947 (for short "the Act") pursuant whereto or in  furtherance whereof the State of Punjab in exercise of its jurisdiction under  Section 10(1)(c) of the Act referred the following dispute to the Labour  Court by a notification dated 8.07.1996:

"Whether termination of services of Sh. Harmesh  Kumar workman is justified and in order?  If not,  to what relief/ exact amount of compensation is he  entitled?"

       The Presiding Officer, Labour Court, Gurdaspur opining that the  workman has not been able to establish that he had worked for 240 days held  that the respondent having not been called by the appellant in the subsequent  crushing seasons and also having called his juniors violated the provisions of  Section 25-G of the Act.  He, therefore, passed the following award:

"In the result, in view of my findings on the above  issue, I pass an award directing the respondent to  reemploy the workman from the season in which  juniors to him were called and workman was not  called.  The workman shall also be entitled to back  wages, etc. with all allied and monetary benefits  which are granted to his juniors from their joining  when workman was not called\005"

       A writ petition was filed by the appellant herein questioning the  legality and/ or validity of the said award and by reason of the impugned  judgment a Division Bench of the High Court rejected the contention raised  by the appellant herein that the provisions of Section 25-G of the Act cannot  be said to have any application in the instant case stating:

"We, however, find no merit in this argument for  the reason that a positive finding has been recorded  by the Tribunal that persons junior to the workman  had been retained and it is also admitted by the  Management that they had not offered any

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appointment to the respondent on account of  pendency of the dispute in Court.  We are of the  opinion that had it been the case of the  Management that the exigencies of services did not  warrant his re-employment, something could be  said in its favour but this is not the case of the  Management.  No offer was made to the workman  on account of the pendency of the proceedings  before the Labour Court."

       The fact that the appellant operates a seasonal factory and the  respondent had not been in continuous service for 240 days during twelve  months preceding his termination is not in dispute.   

       Contention of the appellant is that the termination of the respondent’s  services did not come within the purview of the term ’retrenchment’ as  contained in Section 2(oo)(bb) of the Industrial Disputes Act.

       The Labour Court derived its jurisdiction from the terms in reference.   It ought to have exercised its jurisdiction within the four corners thereof.   

       The principal question which was referred by the State Government  was as to whether the termination of services of the respondent was justified.   The Labour Court was, therefore, not required to go into the question as to  whether the appellant was bound to take the services of the respondent in all  subsequent seasons or not.   

       We are not oblivious of the distinction in regard to the legality of the  order of termination in a case where Section 25-F of the Act applies on the  one hand, and a situation where Section 25-G thereof applies on the other.   Whereas in a case where Section 25-F of the Act applies the workman is  bound to prove that he had been in continuous service of 240 days during  twelve months preceding the order of termination, in a case where he  invokes the provisions of Sections 25-G and 25-H thereof he may not have  to establish the said fact. [See Central Bank of India vs. S. Satyam &  Ors.(1996) 5 SCC 419, Samishta Dube vs. City Board, Etawah & Anr.  (1999) 3 SCC 14, Regional Manager, SBI vs. Rakesh Kumar Tewari (2006)  1 SCC 530 and Jaipur Development Authority v. Ram Sahai & Anr.8Civil  Appeal No. 4626 of 2006 decided on 31st October, 2006]

       However, category-wise seniority is required to be maintained when  different categories of workmen are appointed so as to apply the principle of  ’last-cum-first go’.  A seniority list is also required to be maintained so as to  enable the employer to offer services to the retrenched employees  maintaining the order of seniority.  The said provisions, however, would  have no application in a case where Section 2(oo)(bb) of the Act is attracted.   The said provision reads, thus:

"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-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;"           Termination of services of a workman as a result of non-renewal of  the contract of employment on its expiry or termination of such contract of  appointment under a stipulation in that behalf contained therein would, thus,  not attract the definition of the term ’retrenchment’.  [See Municipal

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Council, Samrala v. Sukhwinder Kaur, (2006) 6 SCC 516 and Municipal  Council, Samrala v. Raj Kumar, (2006) 3 SCC 81]

       The issue is squarely covered by a decision of this Court in Morinda  Coop. Sugar Mills Ltd. v. Ram Kishan and Others [(1995) 5 SCC 653]  wherein it was opined:

"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. 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."

       Yet again, recently in Haryana State Agricultural Marketing Board v.  Subhash Chand and Another [(2006) 2 SCC 794], this Court held: "It is the contention of the appellant that the  respondent was appointed during the wheat season  or the paddy season. It is also not in dispute that  the appellant is a statutory body constituted under  the Punjab and Haryana Agriculture Produce  Marketing Board Act. In terms of the provisions of  the said Act, indisputably, regulations are framed  by the Board laying down the terms and conditions  of services of the employees working in the  Market Committees. A bare perusal of the offer of  appointment clearly goes to show that the  appointments were made on contract basis. It was  not a case where a workman was continuously  appointed with artificial gap of 1 day only.  Indisputably, the respondent had been re-employed  after termination of his services on contract basis  after a consideration period(s)."

[See also Municipal Council, Samrala v. Sukhwinder Kaur, (2006) 6 SCC  516 and State of Rajasthan v. Sarjeet Singh & Anr., 2006 (10) SCALE 417]

       For the reasons aforementioned, the impugned judgment cannot be  sustained which is set aside accordingly.  The appeal is allowed.  No costs.