SUPREME COURT OF INDIA
Municipal Council, Samrala
Vs
Sukhwinder Kaur
Appeal (Civil) 3416 of 2006 (Arising Out of Slp(C)Nos. 25491-92 of 2004)
(S. B. Sinha and Dalveer Bhandari, JJ)
08.08.2006
S. B. SINHA, J.
Leave granted.
The appellant is a municipal council. The respondent was engaged on a
contractual basis at a fixed pay of Rs.1000/- per month by an Office Order
dated 6.11.1995. She worked for a period from 8.11.1995 to 17.6.1996. The said
Office Order dated 6.11.1995 reads as under:
"Office of the Nagar Council, Samrala (Ludhiana)
No.588 Dated: 06.11.1995
Office Order No.
On dated 6.11.1995 vide order dated 6.11.1995 you are appointed as clerk on the
contract basis at the fixed rate of Rs.1000/- per month as per the directions
of the Government, it is purely temporary appointment. No one will force
against this post. Executive Officer has the powers to dismiss you without
issuing any notice. All the terms and conditions issued by the office will be
accepted by you.
Sd/- Executive Officer
Nagar Council, Samrala"
She again worked under an offer of appointment on a contractual basis in terms
of an office order dated 20.6.1996. For the period between 3.9.1996 and
23.5.1997 she furthermore worked on similar terms and conditions in terms of an
offer of appointment dated 20.10.1996. On her services being terminated, an
industrial dispute was raised.
The Presiding Officer of the Labour Court by an Award dated 11.2.2003 opined
that the termination of the respondent from services was not in conformity with
the provisions of 25-F of the Industrial Disputes Act, 1947
('the Act', for short). It directed her reinstatement with continuity of
service with 25% of the back wages
.
The appellant herein filed a writ petition before the Punjab and Haryana High
Court questioning the correctness or otherwise of the said Award, inter alia,
contending that as the appointment of the respondent answers the description of
Section 2(oo)(bb) of the Act; the provisions of Section 25-F thereof are not
attracted. The said contention of the appellant was rejected stating:
"The Labour Court has also found that there is nothing on the file to
show that the work was not available after the date of termination of services
of the workman. It has also been accepted by the parties that the services of
the workman were terminated without any notice, charge sheet, enquiry or
payment of compensation. The Labour Court therefore, held that there has been
violation of Section 25 of the Industrial Disputes Act, 1947.
However, the workman was ordered to be reinstated with only 25 per cent back
wages."
A Review Petition filed by the appellant before the High Court was also
dismissed.
The respondent, within a span of about 18 months, was appointed thrice and
disengaged thrice. As noticed hereinbefore, she was appointed on a contractual
basis. The appointments were temporary ones. She was aware that her services
could be terminated without notice. She accepted the terms and conditions of
the said offers of appointments without any demur. Section 2(oo) of the Act
defines retrenchment to mean termination by the employer of service of the
workman for any reason whatsoever, otherwise than as a punishment inflicted by
way of disciplinary action, but does not include:
"(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;.."
Although, there was no fixed period of contract of employment between the
employer and the workman concerned and thus, no question of its renewal on its
expiry, but there existed a stipulation in the contract that the Executive
Officer has the power to dismiss her without issuing any notice. The question,
which now arises for consideration, is whether Section 2(oo)(bb) of the Act is
attracted to the facts and circumstances of this case.
We would, in this behalf, may take note of some precedents operating in the
field.
In Municipal Council, Samrala vs. Raj Kumar 2006 (3) SCC 81, it was held:
"The appellant is a Municipal Council. It is governed by the provisions
of a statute. The matter relating to the appointment of employees as also the
terms and conditions of their services indisputably are governed by the
provisions of the relevant Municipal Act and/or the rules framed thereunder.
Furthermore, there is no doubt that the matter relating to the employment in
the Municipal Council should be governed by the statutory provisions and thus
such offer of appointment must be made by a person authorised therefor. The
agenda in question was placed before the Executive Council with a view to
obtain requisite direction from it wherefor the said letter was written. The
reason for such appointment on contract basis has explicitly been stated
therein, namely, that one post was vacant and two employees were on leave and
in that view of the matter, services of a person were immediately required in
the Council. Thus, keeping in view the exigency of the situation, the
respondent came to be appointed on the terms and conditions approved by the
Municipal Council.
We have noticed hereinbefore that the respondent understood that his
appointment would be short-lived. He furthermore understood that his services
could be terminated at any point of time as it was on a contract basis. It is
only in that view of the matter, as noticed hereinbefore, that he affirmed an
affidavit stating that the Municipal Council of Samrala could dispense with his
services and that they have a right to do so."
S.M. Nilajkar & Ors. vs. Telecom District Manager, Karnataka , was
distinguished therein stating :
"In the decision of this Court in S.M. Nilajkar v. Telecom Distt.
Manager whereupon the learned counsel for the respondent placed strong
reliance, this Court was concerned with a different fact situation obtaining
therein. In that case, a scheme for absorption of the employees who were
appointed for digging, laying cables, erecting poles, drawing lines and other
connected works was made which came into force with effect from 1-10-1989, and
only those whose names were not included for regularisation under the said
scheme, raised disputes before the Assistant Labor Commissioner, Mangalore. The
termination of the services of casual mazdoors by the management of Telecom
District Manager, Belgaum, thus came to be questioned in the reference made by
the appropriate Government in exercise of its power conferred upon it under
Section 10 of the Industrial Disputes Act. This Court, having regard to the
contentions raised by the respondents that the appellant therein was engaged in
a particular type of work, namely, digging, laying cables, erecting poles,
drawing lines and other connected works in the project and expansion of the
Telecom Office in the district of Belgaum was of the opinion : (SCC p.37, para
13)
"13. The termination of service of a workman engaged in a scheme or
project may not amount to retrenchment within the meaning of sub-clause (bb)
subject to the following conditions being satisfied :
(i) That the workman was engaged in a project or scheme of temporary duration;
(ii) The employment was on a contract, and not as a daily-wager simpliciter,
which provided inter alia that the employment shall come to an end on the
expiry of the scheme or project;
(iii) the employment came to an end simultaneously with the termination of the
scheme or project and consistently with the terms of the contract; and
(iv)the workman ought to have been apprised or made aware of the abovesaid
terms by the employer at the commencement of employment."
Raj Kumar (supra) has been followed by this Court in The Haryana State
Agricultural Marketing Board vs. Subhash Chand & Anr. 2006 (2) SCALE
614 holding
"It is the contention of the appellant that the respondent was
appointed during the 'wheat season' or '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
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 considerable period(s).
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."
The High Court furthermore did not consider the question as to whether the
appellant had any vacancy in respect of the post.
We, therefore, are of the opinion that the said decisions are applicable in the
instant case.
However, it appears, before the High Court in the review application, the
appellant itself had made a proposal to give lump sum compensation in lieu of
her reinstatement. In view of that the appellant itself was before the High
Court, we are of the opinion that interest of justice shall be met if a sum of
Rs.30, 000/- is directed to be paid to the respondent, as was directed in State
of M.P. & Ors. vs. Arjunlal Rajak 2006 (2) SCALE 610 (relied on),
Nagar Mahapalika (Now Municipal Corpn.) vs. State of U.P. & Ors. 2006
(5) SCALE 145 and Haryana State Electronics Development Corporation Ltd. vs.
Mamni 2006 (5) SCALE 164.
The aforementioned amount shall be paid to the respondent within a period of
four weeks from the date of receipt of a copy of this order failing which she
would be entitled to interest thereupon @6% per annum till the date of payment.
The appeals are disposed of on the above terms.