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CASE NO.: Appeal (civil)  1271 of 2006

PETITIONER: The Haryana State Agricultural Marketing Board           

RESPONDENT: Subhash Chand & Anr.                                             

DATE OF JUDGMENT: 24/02/2006

BENCH: S.B. Sinha & P.K. Balasubramanyan

JUDGMENT: J U D G M E N T [Arising out of SLP (C) No. 11804 of 2004]  

S.B. SINHA, J :          Leave granted.   

The respondent was appointed on contractual basis as an Arrival  Record Clerk.  Such appointments were made during paddy seasons.  The  period of first appointment was from 17.10.1997 to 15.1.1998.  Again in the  next wheat season he worked under the appellant from 4.4.1998 to  1.7.1998.   He was again appointed vide order dated 11.9.1998 and worked from   16.9.1998  till 13.12.1998.  The terms and conditions of service as contained  in the order dated 11.9.1998 in regard to the appellant are as under:  "1.     That the appointment will be on  consolidated wages at he rate of Rs. 1536/- P.M. No  other allowances will be admissible.  

2.      The period of engagement will be 89 days.  

3.      Services can be terminated/dispensed at any  time without assigning any notice and reason and  this will not confer any right for his/her being  considered for regular appointment.  

4.      He/she will not entitle to any leave except  one day casual leave for each complete month.  

5.      The unavailed casual leave shall lapse on the  last day of calendar year.  

6.      His/her appointment on contract basis shall  not confer upon any right for regularization of  appointment.  

7.      He will be bound by office secrecy act and  shall be required to maintain decorum as is expected  under conduct rules of the Board.  

8.      His retention on contract basis shall firm the  performance in the job assigned to him. He will  have to join the duty within 100 days from the date  of issue of this order failing which the engagement  will stand cancelled automatically."

       After termination of his services, the appellant raised an industrial  dispute.  The Government of Haryana made a reference thereof purported to  be in exercise of its jurisdiction under Section 10(1) (c) of Industrial

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Disputes Act, 1947 (herein after referred to as ’the Act’) to the Industrial  Tribunal-cum- Labour Court, Panipat.  It was registered as Reference No.  383 of 2000.  Both parties filed their respective written statements before the   Labour Court.            One of the disputes related to the total number of days of work  completed by the workman  in twelve months prior to the date of   termination of his services.   The appellant contended that the respondent  had worked for  208 days whereas  the contention of workman was that he  had worked for 356 days.  

The Labour Court inter alia held that the termination of services of the  workman was in violation of the provision of Section 25-G of the Act and  the management took recourse  to unfair labour policy.           A writ petition filed by the appellant herein before the High Court of  Punjab and Haryana being Civil Writ Petition No. 14737 of 2003 was  dismissed by a Division Bench summarily. The appellant is, thus,  before us.           Mr. Neeraj Kumar Jain, learned counsel appearing on behalf of the  appellant raised a short question in support of this appeal.  It was contended  that the Labour Court as well as the High Court committed a manifest error  in passing the impugned judgment insofar as they failed to take into  consideration  the definition of retrenchment as contained in Section 2 (oo)  (bb) of the Act.  It was urged that the High Court failed to take into  consideration that Chapter VA of the Industrial Disputes Act and  consequently the Fifth Schedule appended to this Act would have no  application herein.  Mr. Jain submitted that Labour Court committed an  illegality in coming to the conclusion that workmen junior to the respondent  had been retrained in service as those employees were surplus employees  and were retained under the directions of the State Government.  

       Mr. Mahabir Singh, learned senior counsel appearing on behalf of the  respondent, on the other hand, would contend that in view of the fact that the  workmen junior to the respondent were retained in service the provisions of  Section 25-G besides 25-H of the Act had clearly been breached.  It was  submitted that the action on the part of the appellant amounts to unfair  labour practice and in this behalf our attention has been drawn to clauses (b)  and (d) of Item No. 5 as also clause (10) of the Fifth Schedule of the  Industrial Disputes Act.  It was also submitted that pursuant to the directions  of the High Court the respondent has not yet been reinstated with entire  wages and thus this Court should not exercise its discretionary jurisdiction  under Article 136 of the Constitution of India. ’Retrenchment’ has been  defined in Section 2 (oo) of the Act to mean:  

"\005.2 (oo) \026 ’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 \026  

(a)-(b)         xxx             xxx             xxx

(bb) \026 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;"

       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

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said Act, indisputably, regulations are framed by the Board laying down  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).            In Municipal Council, Samrala v. Raj Kumar [Civil Appeal Nos.299- 300 of 2006] disposed of on 6th January, 2006, wherein, 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", which was accepted by the employee by affirming an  affidavit to the effect that he would not have any objection, if  Municipal  Corporation dispensed with his services and thereby acknowledged its right  to that effect,  this Court held :

"Clause (oo)(bb) of Section 2 contain an  exception.  It is in two parts.  The first part contemplates  termination of service of the workman as a result of the  non-renewal of the contract of employment or on its  expiry; whereas the second part postulates termination of  such contract of employment in terms of stipulation  contained in that behalf\005"

[See also Punjab State Electricity Board. v. Darbara Singh \026 (2006) 1 SCC  121 and Kishore Chandra Samal v. Orissa State Cashew Development  Corpn. Ltd.,Dehnkanal. \026 (2006) 1 SCC 253]

       The question as to whether Chapter VA of the Act will apply or not   would dependent on the issue as to whether an order of retrenchment comes  within the purview of Section 2 (oo) (bb) of the Act or not. If the termination  of service in view of  the exception contained in clauses (bb) of Section  2(oo) of the Act is not a ’retrenchment’, the question of applicability of  Chapter VA thereof would not arise.              Central Bank of India V. S. Stayam & Ors. [1996 (5) SCC 419],  whereupon reliance was placed by Mr. Singh, is itself an authority for the  proposition that the definition of ’retrenchment’ as contained in the said  provision is wide.  Once it is held that having regard to the nature of   termination of services it would not come within the purview of the said  definition, the question of applicability of Section 25-G of the Act does not  arise.   

In State of U.P. V. Neeraj Awasthi & Ors.  [2006 (1) SCC 667]  wherein this Court upon taking into consideration the provisions of the U.P.  Agricultural  Produce Markets Board (Officers and Staff Establishment)  Regulations,1984  held that it is not permissible to regularize the services of  the employees although  they might have worked for more than 240 days  within a period of twelve months preceding such termination   

In   Regional Manager, SBI V. Rakesh Kumar Tewari [2006 (1) SCC  530] a distinction was made between the provisions of Sections 25-G and  25-H in the following terms:  

"\005No conditions of services were agreed to and  no letter of appointment  was given.  The nature of  the respondents’ employment was entirely ad hoc.   They had been appointed without considering any  rule.  It would be ironical if the persons who have  benefited by the flouting of the rules of  appointment can rely upon those rules when their  services are dispensed with."

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       Reliance placed by Mr. Mahabir Singh upon Fifth Schedule of the  Industrial Dispute Act is again of no assistance. Clauses (b), (d) of Item No.  5 as also clause (10) of the Fifth Schedule  are as under:  

"5. To discharge or dismiss workmen \026  

***             ***             *** (b) not in good faith, but in the colourable exercise  of the employer’s rights; ***             ***             ***

(d) for patently false reasons;

(10) to employ workmen 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 workmen."              

       No case has been made out for attracting Clauses (b) and (d) of item  No. 5.  As regard applicability of clause (10) thereof, we may notice the  meaning of ’status’ and ’privilege’.

       In P. Ramanatha Aiyar’s Advanced Law Lexicon, 3rd edition, Volume  4, at page 4469, the expression "status" has been defined as under:

"Status is a much discussed term which, according to the  best modern expositions, includes the sum total of a  man’s personal rights and duties (Salmond,  Jurisprudence 253, 257), or, to be verbally accurate, of  his capacity for rights and duties. (Holland,  Jurisprudence 88).

The status of a person means his personal legal  condition only so far as his personal rights and burdens  are concerned.  Dugganna v. Ganeshayya, AIR 1965  Mys 97, 101. [Indian Evidence Act (1 of 1872), S. 41]

In the language of jurisprudence status is a condition of  membership of a group of whicih powers and duties are  exclusively determined by law and not by agreement  between the parties concerned. (Roshan Lal v. Union,  1967 SLR 832)."

       [See also  the judgment of this Court delivered in B.H.E.L & Anr. v.  B.K. Vijay & Ors.,  2006 (2) SCALE 195]

       The word ’privilege’ has been defined, at page 3733, as under:   "Privilege is an exemption from some duty, burden, or  attendance to which certain persons are entitled; from a  supposition of Law, that the stations they fill, or the  offices they are engaged in, are such as require all their  care; that therefore, without this indulgence, it would be  impracticable to execute such offices, to that advantage  which the Public good requires.  

A right or immunity granted as a peculiar benefit;  advantage or favour; a peculiar or personal advantage  or right, especially when enjoyed in derogation of a  common right.   

Immunity from civil action may be described also as a  privilege, because the word "privilege" is sufficiently

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wide to include an immunity.

The word ’privilege’ has been defined as a particular  and peculiar benefit or advantage enjoyed by a person.   

Privileges are liberties and franchises granted to an  office, place, town or manor, by the King’s great  charter, letters patent, or Act of Parliament."

       In view of the aforementioned definitions of the expressions ’status’   and ’privilege’ it must be held that such ’status’ and ’privilege’ must  emanate  from a statute.  If legal right has been derived by the respondent  herein to continue in service in terms of the provisions of the Act under  which he is governed, then only, the question of depriving him of any status  or privilege would arise.  Furthermore, it is not a case where the respondent  had worked for years.  He has only worked, on his own showing, for 356  days whereas according to the appellant he has worked only for 208 days.   Therefore, Fifth Schedule of the Industrial Disputes Act, 1947 has no  application in the instant case.  In view of the above, the dispensing with of  the engagement of the respondent cannot be said to be unwarranted in law.   

For the foregoing reasons, we are of the opinion that the impugned  judgment cannot be sustained which is set aside accordingly.  The Award of  the Industrial Tribunal-cum-Labour Court is set aside.  In the facts and  circumstances of the case, the parties shall bear their own costs.  The appeal is allowed accordingly.