1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- SPL. APPL. WRIT No. 936 of 2001 POONA RAM V/S JUDGE LABOUR COURT & ORS Mr. SHREEDHAR PUROHIT, for the appellant / petitioner Mr. MANISH SHISHODIA, for the respondent Date of Order : 9.5.2008 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI KISHAN SWAROOP CHAUDHARI,J. ORDER ----- This appeal has been filed against the judgment of the learned Single Judge dt. 29.10.2001, dismissing the writ petition filed against the award of the learned Labour Court dt. 31.5.2001, deciding reference, and holding, that the services of the appellant were not terminated, rather they came to an end by efflux of time, and he voluntarily stopped coming in May, 1994. The allegation of the workman was, that he was appointed in May, 1993 as driver, temporarily for a period of three months, and continued to work. However, without any notice, in an abrupt manner, he was removed from service on 16.5.1994. Thus, despite having worked for more than 240 days, he was removed without compliance of Section 25F of the Industrial Disputes Act. 2 The claim was contested, interalia on the ground, that the workman was appointed on a consolidated emolument of Rs. 950/-per month, for a period of three months, and he never completed 240 days, and therefore, there was no requirement of giving any notice, nor the provisions of section 25F are attracted. The learned Labour Court found, that on 14.6.1993 contract was entered into between the parties, giving appointment to the workman for a period of three months, and thereafter, vide subsequent order of the employer dt. 27.9.1993, the employment was extended for another period of three months. The initial contract dt. 14.6.1993 as admitted before the learned Labour Court as Ex.A-1, wherein it was stipulated, that he can be removed without any notice. Thus, according to the learned Labour Court, it is established, that the workman was appointed on contract basis. Then it was found, that it is of course true that he continued to work after expiry of contract, but thereby he does not get a right to continue in the employment, and is not entitled to any benefit of the Industrial Disputes Act. This award was challenged by the petitioner by way of writ petition, and the learned Single Judge, in the impugned order found, that the initial appointment was on agreement, for a period of three months, which was 3 admittedly extended for another three months, and thus it was found to be a contractual appointment, not attracting the requirement of compliance of Section 25F, 25G, or 25H. Thus, the writ petition was dismissed. Assailing the impugned judgment, it is contended by the learned counsel for the appellant, that the appellant had clearly worked for more than 240 days, even after expiry of the period of contract dt. 14.6.1993, and that contract was never extended by any bilateral agreement, as such it cannot be said, that thereafter he continued to be a contractual employee, so as not to amount to retrenchment of the employee, within the meaning of Section 2(oo)(bb) of the Act. It has also been contended, that the learned Single Judge has not correctly read the cross examination of the appellant, inasmuch as the learned Judge has found, that the agreement was for three months, which was further extended for three months, and its extension has been admitted by the petitioner in his cross examination, while from a reading of the cross examination it is clear, that he has only admitted that initial appointment was on contract, but never admitted about extension of the contract, rather in cross examination he has positively assailed, that he had signed the agreement only once, and thereafter continued to work till he was removed, and that, his period of service was continued. Thus, the period of service rendered by the appellant, 4 after expiry of contract, has wrongly been found to be a contractual appointment, and since it is clear, that he had worked for more than 240 days, and admittedly, the requirement of Section 25F has not been complied with, the removal is bad. Learned counsel for the respondent, on the other hand, relying upon the judgment of Hon'ble the Supreme Court, in Punjab State Electricity Board Vs. Darbara Singh, reported in (2006)1 SCC-121, and M.D. Karnataka Handloom Dev. Corpn Ltd. Vs. Mahadeva Laxman Raval, reported in AIR 2007 SC-631, has contended, that the employment of the workman was clearly contractual, and when it has come to an end with the expiry of contract, it is clearly covered by the language of clause 2(bb) of Section 2(oo), and therefore, it cannot be said to be retrenchment, so as to attract compliance of requirements of Section 25F of the Act. We have considered the submissions, and have gone through the impugned judgments, and the material placed on record. In our view even taking the things as they are, Ex.A-1 is a contract, said to have been signed by both the parties on 14.6.1993, appointing the appellant for a period of three months, and thereafter, no contract, renewing 5 earlier contract has been produced on record. What has been referred by the learned Labour Court is, that a sanction was given for extension of the contract, for further period of three months, but then, in our view, it cannot be said, that by the mere fact, that departmental sanction was given for extending the period for another three months, there was renewal of the contract, without there being any bilateral contract, or conscious renewal of the agreement, apart from the fact, that all said and done, even if it is taken to be extended for three months, that period also expired, and the workman continued upto 16.5.1994. The submission made on behalf of the respondent, that after excluding the period of extended contract, since the workman not completed 240 days, he is not entitled to protection of Section 25F, is an argument, which cannot be accepted. Then, a look at the cross examination of the petitioner also does show, that he has never admitted, that there was any renewal of the contract, after the contract initially entered into on 14.6.1993. In these circumstances, in our view, it cannot be said, that at the time of removal, the workman continued to be in contractual employment, and that, the removal was, consequent upon expiry of period of contract, or the employment came to an end by efflux of time, so as to attract the provisions of Section 2(oo)(bb). That being the position, admittedly, since 14.9.1993, more than 240 days 6 were completed by the workman, till removal on 16.5.1994, if he is sought to be removed, requirement of Section 25F were required to be complied with. Thus, the retrenchment/ removal is bad. The question then arises is, as to what relief the workman should be given. In this regard we have considered the circumstances, being that, the workman was appointed only for a period of three months, on a consolidated salary of Rs. 950/-, and somehow he continued to work upto 12 months, or so, thus technically he became entitled to protection of Section 25F, but then it is not shown, as to how he was appointed, whether by following the procedure prescribed, keeping in with the letter and spirit of Article 14 and 16, or not. In these circumstances, respecting the spirit of the judgment of Hon'ble the Supreme Court, starting from State of Karnataka VS. Uma Devi, reported in JT 2006(4) SC-420, and onwards, we do not find it a fit case to grant the relief of reinstatement, and instead, think it appropriate to award, an all told, down cash payment of Rs. 25,000/-, towards all claims of the workman, for compensation, or back wages, or reinstatement, or the like. Accordingly the appeal is allowed. The impugned orders are set aside, and it is directed, that the respondent shall pay to the workman, a sum of Rs. 25,000/- 7 within a period of one month from today, and on making of this payment, all claims of the workman, under the impugned proceedings, shall stand satisfied, and thus this amount of Rs. 25,000/-, will be one time all told compensation. ( KISHAN SWAROOP CHAUDHARI ),J. ( N P GUPTA ),J. /Sushil/