JUDGMENT
1. All these Writ Petitions under [SECTION] and [SECTION] of the [ACT] impugn the same order of the Industrial Court, Kolhapur, dated January 6, 1994 made in a set of 41 appeals under the provisions of the [ACT] (hereinafter referred to as the Act) and arise out of the same set of facts. Since these Writ Petitions arise out of the same set of facts and the issues of law raised are identical, they can be conveniently disposed of by a common judgment. For the purpose of typifying the facts, I shall be referring to the facts in [CASE NUMBER].
2. The petitioner is a Co-operative Society carrying on the business of manufacture of sugar at Shiv Sagar in District Satara. The First Respondent was engaged by the Petitioner by an Office Order dated December 23/24, 1988 saying.
"As the work in the Chemistry Section for the crushing season of 88-89 has temporarily increased, the following candidates are being appointed as "Daily Mazdoors". Their daily wages will be Rs. 15/-. The management has reserved right to terminate the services as soon as the said temporary work is over. The concerned should immediately report to the Time Office through the head of the Department."
By one office order commonly displayed, all the concerned workmen were engaged in connection with temporary increase in work during the crushing season 1988-89. The employees continued to work till April 1989. On April 24, 1989, by an Office Order displayed on the Notice Board, the services of all the concerned workmen were terminated. The Office Order said :-
OFFICE ORDER The candidates appointed vide Office Order No. 4092 dated December 26, 1988 in Watch and Ward, Chemistry, Engineering Departments for the work of temporary nature on daily wages, are being terminated with effect from May 4, 1989 (after office hours) as the said work of temporary nature is over. The dues as per the rules be collected after producing clearance.
Managing Director [ENTITY] SA-KA. LTD. RETHERE BD."
3. Being aggrieved by their removal from service, the concerned employees sent a common letter of approach, under [SECTION] read with [SECTION] of the Act, under the signature of their Advocate, Mr. [ENTITY]. By the letter of approach they demanded that they be employed for the season 1988-89 on the last drawn rates of wages after payment of full backwages for the period of their unemployment. The letter of approach expressly refers to [SECTION] of the [ACT] and alleges that the concerned employees had been retrenched from service and, therefore, they were entitled to re-employment. The request made in the letter of approach was rejected by the Petitioner's letter dated December 20, 1989. The employees filed Applications before the Labour Court, Sangli, under [SECTION] read with [SECTION] of the Act. The applications were numbered as applications ([CASE NUMBER] (in all 45 Applications were filed). In their Applications filed before the Labour Court the employees did not refer to either [SECTION] or [SECTION] of the [ACT]. They merely pleaded the circumstances under which their services were terminated and alleged that they had been removed because the new Board of Directors was interested in removing them and replacing them with its own set of persons. They also claimed relief by way of declarations that they had been retrenched and that they were entitled to be re-employed in the crushing season of 1989-90 on the last drawn rate of wages and payment of full backwages till the date of reinstatement. The Applications were opposed by the Petitioner on several grounds.
4. After recording evidence of the parties, the Labour Court passed a common order dated September 22, 1993 in which it raised issues and answered them as under :
"ISSUES :
(1) Whether the termination of applicants amounts to retrenchment' ? (2) If so, whether the applicants are entitled for reemployment under the provisions of [ACT] ? (3) Whether the Opponents prove that the order of termination is legal and proper ? (4) Whether the approach notice is in proper form and legal ? (5) Whether the application is within limitation ?
(6) What order ?
FINDINGS :
1. Yes.
2. Yes.
3. Yes.
4. Yes, but not in respect of the application No. B. I. R. 2, 9, 13 and 29 of 1990.
(5) Yes.
(6) Applications are partly allowed but the applications No. B. I. R. 2, 9, 13, and 29 of 1990 are dismissed."
5. Holding that the approach notices preceding the applications were illegal and improper, the Labour Court dismissed [CASE NUMBER]. In the other cases, the Labour Court held that the concerned employees had been retrenched from service within the meaning of [SECTION] of the [ACT], though they were not entitled to the benefit of [SECTION] of the [ACT] as they had not completed 240 days of working in preceding twelve months. The Labour Court, however, held that each of the employee was entitled to re-employment by virtue of the provisions of [SECTION] of the [ACT]. In the result, the Labour Court by its order dated September 22, 1993 dismissed four Applications, partly allowed 41 Applications and directed the petitioner to employ the concerned employees in service as Casual Labourers under the Standing Orders and pay them lumpsum compensation of Rs. 5,000/- (Rupees five thousand only) each towards backwages and give them continuity of service.
6. Two sets of appeals were directed against the said order of the Labour Court - one by the forty one employees who were aggrieved by the relief which was less than what they had demanded, and, the other, by the Employer-Petitioner who was also aggrieved by the directions as to reemployment made by the Labour Court. The Industrial Court, by the impugned order dated January 6, 1994, held that the approach notices issued on behalf of the employees were legal, that the termination of the services of the concerned employees were legal and amounted to retrenchment, that the Applications made were not barred by limitation and that the concerned employees were entitled to relief of reemployment, though they were not entitled to backwages. The Industrial Court endorsed fully the findings made and the relief granted by the Labour Court in its order and dismissed all appeals. The Petitioner [ENTITY] has by these Writ Petitions impugned the said order of the Industrial Court.
7. The counsel on both sides have taken me through the order of the two Courts below. The Labour Court, after referring to the order of appointment and the order of termination of services of the employees and the provisions of the applicable Standing orders, recorded a finding that the concerned employees had been appointed as 'casual Employees'. This finding has been affirmed by the Industrial Court. When I drew attention of the learned Counsel Mr. [ENTITY] to the fact that the finding was inconsistent with the terms of Standing Orders reproduced at Pages 56/57 of the petition, he fairly conceded that the employees were really 'temporary employees' within the meaning of the relevant Standing Order.
8. Mr. [ENTITY], however, vehemently criticised the findings of both the Courts below to the effect that there was retrenchment. He contended that both the Courts below, despite reference to the judgment of this Court and of several other High Courts, have failed to notice the judgment of the Supreme Court in M. [ENTITY] v. Life Insurance Corporation of India, Machilipatnam. A. P. and Anr. (1994-I-LLJ-597), which was pat on the issue and had the effect of impliedly over-ruling all earlier judgments of the High Court. In my view, this contention needs to be upheld. The Supreme Court in [ENTITY] (supra) (though it does not appear from, the judgment of the Supreme Court that several judgments of the High Court on the subject were not brought to the notice of the Supreme Court) considered the scope of the newly inserted Clause (bb) in [SECTION] of the [ACT] which defines 'retrenchment'. The Supreme Court pointed out that the purpose of the amendment was to introduce a further exception to the concept of 'retrenchment' as defined in [SECTION] and as explained in [PRECEDENT]. The Supreme Court observed in [ENTITY] as under : at Page 600-601 "[SECTION] aforesaid has to be read as a statutory term of the contract of employment between the Corporation and the appellant. The order of appointment had fixed a target in respect of the performance of the appellant, which admittedly the appellant failed to achieve within the period of probation which was extended upto two years. As such the Corporation was entitled not to confirm the appellant in terms of the order of appointment and to terminate his service during the period of probation without any notice in term of [SECTION] aforesaid. Clauses 10 and 11 of the order of appointment along with [SECTION] shall be deemed to be stipulations of the contract of employment, under which the service of the appellant has been terminated. Any such termination, even if the provisions of the [ACT] were applicable in the case of the appellant, shall not be deemed to be 'retrenchment' within the meaning of [SECTION], having been covered by exception (bb). Before the introduction of clause (bb) in [SECTION], there were only three exceptions so far termination of the service of the workman was concerned, which had been excluded from the ambit of retrenchment - (a) voluntary retirement,; (b) retirement of reaching age of superannuation,; and (c) on ground of continued ill-health. This Court from time to time held that the definition of "retrenchment" being very wide and comprehensive in nature shall cover, within its ambit termination of service in any manner and for any reason, otherwise than as a punishment inflicted by way of disciplinary action. The result was that even discharge simpliciter, was held to fall within the purview of the definition of "retrenchment". [PRECEDENT], (supra), [PRECEDENT]. Now with introduction of one more exception to [SECTION], under clause (bb) the Legislature has excluded from the purview of the "retrenchment" (i) 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; (ii) such contract being terminated under a stipulation in that behalf contained in contract of employment. It need not be impressed that if in the contract of employment no such stipulations is provided or prescribed, then such contract shall not be covered by [SECTION]. In the present case, the termination of service of the appellant is as a result of the contract of employment having been terminated under the stipulations specifically provided under [SECTION] and the order of the appointment of the appellant. In this background, the non-compliance of the requirement of [SECTION] shall not vitiate or nullify the order of termination of the appellant."
9. In my view, the judgments on which the Courts below relied to hold that the action of the petitioner amounted to retrenchment, must be held to be over-ruled by the judgment of the Supreme Court in [ENTITY] (supra) which, now adds an altogether new dimension to the concept of retrenchment. As held in [ENTITY] (supra), the purpose of clause (bb) is to carve out an exception to the concept of 'retrenchment' defined in [SECTION] of the Act. In the instant case, the concerned employees were engaged on temporary work which came to an end some time in April, 1989. Consequently, their services were terminated pursuant to the right reserved under an express stipulation in the appointment order. It is also the finding of the Labour Court that the services were terminated on completion of the work on which the concerned employees were engaged. In these circumstances, it is not possible to uphold the findings of the two Courts below that the termination of the services of the concerned employees amounted to 'retrenchment' within the meaning of [SECTION] of the [ACT]. Consequently, there was no question of invoking [SECTION] of the side Act.
10. Mr. [ENTITY], learned Counsel appearing for the concerned respondent-employees, relying on the provisions of the [ACT], particularly [SECTION] of the Act., contended that the employees had demanded a change in regard to [SECTION] prescribed in [SECTION], namely, "Employment including - (i) reinstatement and recruitment; (ii) unemployment to persons previously employed in the industry concerned", and, therefore, the employees were entitled to give an approach notice under [SECTION] desiring a change in respect of or connected with [SECTION]; as there was no agreement of the issue, the employees were entitled to maintain an Application before the Labour Court for resolving the said dispute under [SECTION] of the [ACT]. Though the contention of Mr. [ENTITY] cannot be said to be without substance, I am afraid that it is not possible to uphold the said contention in the facts and circumstances of the present case. Firstly, the approach notice under [SECTION], which by now has been held to the substratum of an application under, [SECTION], refers to 'retrenchment' [SECTION] and [SECTION] of the [ACT]. The tenor of the approach notice suggests that the employees were demanding reinstatement in service with full backwages on account of alleged non - compliance with [SECTION] of the [ACT], coupled with the plea that they were also entitled to re-employment by virtue of [SECTION] of the [ACT]. No such contention as ingeniously advanced by Mr. [ENTITY] here was raised in the approach notice or in the Labour Court. Mr. [ENTITY] fairly conceded that a reading of the two judgments of the Courts below does not indicate that such a contention was ever advanced before the two Courts below. I am afraid that it is not permissible to allow a contention never taken in the two Courts below to be urged in this Court for the first time. Mr. [ENTITY] then urged that such contention may be kept open for being advanced, if the employees desires to agitate the matter before the Labour Court by following the law. This submission is quite correct and needs to be accepted.
11. In the result, [CASE NUMBER], [CASE NUMBER] and [CASE NUMBER] are hereby allowed. The impugned order of the Industrial Court dated January 6, 1994 (Exh.'K') and the order of the Labour Court dated September 22, 1993 (Exh.'H') are hereby quashed and set aside. The Applications of the concerned employees, being Application [CASE NUMBER] are hereby; dismissed. Rules issued in the Writ Petitions are, therefore, made absolute accordingly. There shall be no order as to costs.
12. It is, however, clarified that the contention as to whether the concerned employees are entitled to seek the same or other relief in applications under [SECTION] read with [SECTION] of the [ACT] is kept open Certified copy to be expedited.