Usman Ali v. The Deputy Director (F&A) Export Promotion Council

1. The petitioners in these two writ petitions have assailed the common award dated 27.1L2008 passed by the Labour Court IX, Karkardooma Courts Delhi in ID No.62711999 whereby the reference made by the appropriate government on 29.1I.1999 in respect of the said workmen has been answered against them. The Reference, as made by the appropriate government, reads as follows: "Whether the services of S/Sh. Sunil Dutt and Usman Ali have been terminated illegally and/or uniustifiably by the management and if so, to what other relief are they entitled and what directions ere necessary in this respect?" e 2. The undisputed facts are that the petitioner Sunil Dutta and Usman Ali were employed on temporary basis on 11.01.1996 as peon, and on 04.04.1994 as driver, respectively by the respondent management. The respondent terminated their services on 01.06.1998. Consequently, the petitioners raised industrial disputes which were referred by the appropriate government by the aforesaid common reference.

3. The defence taken by the respondent management before the Labour Court was that the appointment of the two petitioners was on contractual -( lr/ basis. It was claimed that they did not have any right for permanent appointment. Evidence was led by the parties. The learned industrial adjudicator held in para 13 of the impugned award that the workman had admitted that they were employed on contract basis. The Labour Court also relied upon the Supreme Courl judgment tn Secretary, State of Karnataka & Others v. (Jma Devi & Others, AIR 2006 SC 1806, wherein it has been held that such backdoor entries cannot'be granted regularisation. The industrial adjudicator held that since the appointment were on contractual/temporary basis, they did not have the right to get regularised. On that basis, the impugned award has been passed answering the reference against the petitioners.

4. Learned counsels for the petitioners point out that the appointment of the petitioners were not on contractual basis. The appointment letter of Sunil Dutla dated 11.01.1996 Exh. WWl/Mlstates that he is appointed on the post of peon with effect from 11.01.1996 "on contract basis in the pay scule of Rs.75-12-870-14-940 until further orders. This appointment does not confer any right for permanent post (emphasis supplied) The appointment letter of the petitioner lJsman Ali is slightly differently worded. The same states that Usman Ali is appointed to the post of staff car driver "with ffict fro* 31.03.1994 (o.r.) in the pay scale of 950-20-1150-125- 1500 unti.l further orelers. This appointntent is purely on temporary basis and does not confer any right for permanent appointment.........." uHe witt be on probation fo, o period of two years fro* the date of his appointment". (emphas is supplied) -

5. Attention is also drawn to the cross examination of WWl Sunil ! t? Dutla, wherein he states *It is correct that I was employed on contract basis vide ffice order dated I[1].01.1996, copy whereof is Exh. WWI/MI IJsman Ali, however, made no such statement. Learned counsels for the petitioners submit that merely because the appointment order of Sunil Dutta states that it was on contract basis, is neither here nor there. This is for the reason that it was not a fixed term appointment. The same was open ended "until fuither orders". Moreover, in the case of both the petitioners, they wele put in respective pay scales, which means, that they would eam increments with passage of time. These factors show that the appointments were"not for fixed term on contractual basis, and use of the expression "on contract basis" in the offrce order pertaining to Sunil Dutta would make no difference to the nature of his appointrnent.

6. It is also submitted that the reliance placed on Ums Devi (supra) is misplaced since the petitioners were not seeking regularisation, and that reinstatement and regularisation are two different things. It was not in dispute that the ernployer-employee relationship existed between the parties and that the petitioners had completed 240 days service in the year 3 precedihg to their termination.

7. Learned counsel for lJsman Ali also draws the attention of the Court to the service rules, which provides that all employees of the council on their first appointment to a regular post will have to be appointed on a probation for a period of 12 months. However, the appointment of the petitioner was made on probation for a period of two years. In any event, the said period of two years expired on 03.04.1996 i.e. much before the order of termination dated 01.06.1998. t IL //

8. It is argued that the retrenchment of the petitioners was illegal and in breach of section 25F of the Industrial Disputes Act, 1947 (the Act)'

9. On the other hand, the submission of learned counsel for the respondent is that the services of the petitioners were not required as there was no work left for them and it is on that account that the services were terminated they being temporary contractual employees. It is submitted that the rule of last come first go was followed and the petitioners were paid compensation after retrenchment.

10. " 'Having heard learned counsel for the parties and perused the record including the impugned award, I am of the view that the impugned award is laconic and cannot be sustained. There is no dispute about the fact that the employer-employee relationship existed between the parties and the petitioners completed more than 240 days of service in the year preceding their termination. Consequently, they would be entitled to protection under section 25F of the Act, unless their cases can be brought within the exception contained in clause (bb) of section 2(oo) of the Act i.e. that their appoinlpent were fixed term appointment on contractual basis. 1 1. As noticed above, in the office order pertaining to the petitioner Usman Ali, there is no whisper that his appointment was on contract basis. The appointment order states that he is appointed "until further orders ". The appointment was, therefore, open ended. The appointment was on probation for a period of two years, implying that he may be continued for a period of two years or even longer. At the same time, reliance placed on the recruitment rules by the Petitoner appears to be m isplaced as the V i) /{ appointment of Shri Usman Ali was not made by following the said rules in the first place.

12. So far as the petitioner Sunil Dutta is concerned, though his appointment order stated that the same was on contractual basis, it was open ended. It was not made upto a particular date and was not made contingent to the maturity of any particular development. Both these petitioners were placed in a pay scale, which shows that they were to earn increments with passage of time. Merely because Sunil Dutta stated that his appointment was.on contractual basis (because his appointment order stated so), would not make the nature of his appointment contractual. Therefore, in my view, the termination of the petitioners tantamounted to retrenchment as defined in section 2(oo) of the Act and their cases did not fall within the exception contained in clause (bb) of section 2(oo) of the Act.

13. Adrnittedly, they were not retrenched in cornpliance of section 25F of the Act, though it has come on record that they were paid compensation after about a month of their termination. This would rnean that their termina]ion was in breach of section 25F of the Act as the compensation payable under section 25F has to be paid simultaneously with the termination of the services. Denial of relief to the petitioners is, therefore, not legal just or proper in these cases. Reliance placed on Umo Devi (supra) is wholly misplaced as that case deals with the aspect of regularisation and not reinstatement of retrenched workman.

14. However, as held by the Supreme Court in Jagbir Singh Vs. Haryana State Agriculture Marketing Board & Another, (2009) 15 SCC T o lb 327, merely because the termination is in breach of section 25F of the Act, it does not automatically follow that reinstatement should be ordered.

15. In the present case, the petitioners had been appointed on temporary basis without holding due selection process through public advertisement and in terms of the recruitment rules. Consequently, they had no right to the post held by them. They had rendered four years (IJsman Ali) and two years (Sunil Dutta) of service respectively prior to their retrenchment. The reason for their retrenchment - though illegal, was the non-availability of work for them., It appears that the retrenchment of the Petitioners was justified but was not done in accordance with law. In such cases, the award of compensation in lieu of reinstatement and back wages has been considered by the Supreme Court to be proper, which would also meet the ends of justice.

16. Accordingly, while allowing these petitions and setting aside the impugned award, I hold that the petitioner Usman Ali shall be entitled to compensation of Rs.75,0001- and the petitioner Sunil Dutta shall be entitled to compensation of lts.50,000/-, which would meet the ends ofjustice. The compensation be paid within four weeks. Petition stands disposed of in the aforesaid terms.

VIPIN SANGHI, J. MARCH l[4],2ol[3] ST \' r[7].