=3T ^ 11 .v/^ yr^ IM THS HIGH COURT OF MADHYA fRADESH AT JABALPUR ^ ;-^ .' ti !f :'y M.P. N0. OF 1993 STITIONSR Vers us RE3PONDENTS Om Prasad Mishra, aged about 32 years son or Shri Umashankar M-Lshra, 3x-Time Xeeper of Public Works Departmer.t of Municipal Corporation, Raipur, resident of 3ole Bazar near Hanuman Mandir, Raipur Tahsil an<3 Dlstrict Ralpur 1. presiding Officer, Labour Court, Durg 2. The '-ommissioner , Munlclpal ? Corporationi? Raipur < !'>; fetiti.on uader Art. 226/227 of the Constitution of India for quashlng the award gaseed by Presiding °f£icer, Labour Court, Durg by appropriate writ or order or_dj-;rsct^ion in the aature of Wrj-t'etc. AF mGH COURT OF CHFIATTISGARH AT BILASPUR B. WRIT PETITION No. 4647 of 1993 PETITIONER Om Prakash Mishra. li81is. RESPONDENTS VERSUS Presiding Officer, Labour Court Durg & others. Post for pronouncement ofjudgment on .. J.^J'^ay ofFebmary, 20101. Sd/- SatishK.Agnihotri Judge ff^ HIGH COURT OF CHHATTISGARH AT BILASPUR PETITIONER RESPONDENTS WRITPETITION No. 4647 of 1993 Om Prakash Mishra. VERSUS Presiding Officer, Labour Court Durg & others. PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J. Present: Shri Ratan Pusty, Advocate for the petitioner. None for the respondents. JUDGMENT (Passed on ..../?. ..day of Febmary, 2010) 1. Challenge in this petition is to the award dated 20.08.1993 (Annexure P/21) passed by the Labour Court, Durg in Case No. 41/86/ID Reverence (Om Prakash Mishra v. Commissioner, Municipal Corporation, Raipur) whereby the Labour Court recorded the finding that the services of the petitioner was contractual and his termination was legal and proper. The petitioner further prays that he may be treated to be in continuous service of the respondent No. 2/Coq3oration. Further, the respondent No. 2/Corporation may be directed to reinstate him in service with back-wages with ^ regularization in service, thereafter. 2. The indisputable facts, in nutshell, are that the petitioner was initially appointed on daily wages basis as Mate. Thereafter, he was appointed on ad hoc and temporary basis for a period of six months in the pay scale of Rs. 515-800/- on the post of Time Keeper. The petitioner worked upto 03.08.1985. Thereafter, on 05.08.1985, the petitioner was •£>'^'-" ."'S'Si /f-^\ I i A--':""' /.-•t'.l-"'-; disengaged from services. Being aggrieved, the petitioner made an application under section 10 ofthe Industrial Disputes Act, 1947 [for short 'the Act, 1947') to the Assistant Labour Commissioner/ Conciliation Officer, Raipur. The dispute was referred by the Deputy Labour Commissioner for adjudication to the Labour Court, Raipur under section 10(1) ofthe Act, 1947. The petitioner filed his statement of claim before the Labour Court, Durg, on 02.05.1986 (Annexure P/3). The respondent No.2/Corporation filed its written statement on 06.03.1987 (Annexure P/4) and denied the claim of the petitioner. The said case was registered as Case No. 41/1D/86. Shri Pusty, leamed counsel appearing for the petitioner would submit that the petitioner has worked for more than 240 days continuously, thus, he is entitled to be appointed as a Time Keeper on regular basis as the respondent-Corporation, by order dated 10.01.1985 had appointed the petitioner on the post of Time Keepr temporarily on ad hoc basis for a period of six months. However, the petitioner was disengaged from services on 03.08.1985. Shri Pusty would further submit that one similariy situated person namely Rajendra Kumar Jaiswal was retained in service while the petitioner's services were terminated. Thus, the petitioner is entitled to be reinstated with full back wages and regularization on the post ofTime Keeper. I have heard leamed counsel appearing for the petitioner, perused the pleadings and documents appended thereto. Despite service of notice, none appeared nor any representation was made on behalfofthe respondent No. 1, 2, 3 and 4. ^y. '•'''''''''vk: ^' '^. —^"S^s. '/•-i / h:' • '• 6. According to the petitioner, the petitioner was initially appointed on daily wages basis as Mate on 12.01.1980. Thereafter, he was appointed on ad hoc basis as Time Keeper (Samaypal) vide order dated 10.01.1985 for a period of six months on a pay scale of Rs.515-10-575-15-800. The services ofthe petitioner came to an end on 03.08.1985. Being aggrieved, the petitioner preferred an application for reference to the Conciliation Officer/Deputy Labour Commissioner, Raipur, Chhattisgarh. Upon failure of the conciliation proceedings, the Deputy Labour Commissioner, by order dated 28.8.1986 (Annexure P/2) referred the dispute under the provisions of section 10(1) ofthe Act, 1947 in the following terms: "Whether the termination of service of applicant by emplpyer is legal and proper? If not, so what relfefs, he is ehtitled and m this regard what direction should be issued to the employer." 7. The Labour Court, after having examined all the aspects ofthe matter, came to the conclusion that the petitioner was appointed on 10.01.1985 on temporary ad hoc basis for a period of six months which came to an end on 03.08.1985. Since the appointment ofthe petitioner was on ad hoc basis for a fixed term of six months, the case ofthe petitioner comes within the purview ofsection 2(oo)(bb) ofthe Act, 1947. Thus, the case ofthe petitioner does not come within the definition of 'retrenchment', accordingly, the order passed by the respondent No. 2/Corporation was valid, legal and proper. 8. There is no dispute that the petitioner has initially worked as Mate on daily-wages basis from 12.01.1980 and not on the post oftime keeper. It is not clear fi-om the pleadings and documents that he worked regularly. The petitioner was appointed on the post of Time Keeper "^ '^?'^!-??-^ ^ .' j ''""SB^ ,;; ;.•"/ ''•. "' £/ "%:^-^ vide order dated 10.01.1985 (Annexure P/7) for a period ofsix months on ad hoc basis which came to an end on 03.08.1985. The petitioner has examined himself (Armexure P/17) and stated that he used to work as time keeper also during the period his services were engaged on daily wages basis as Mate, thus, counting the period from 12.01.1980 to 03.08.1985, the petitioner has worked for more than 240 days in the preceding year or 12 months. The said statement was denied by N.R.Deshmukh (DW/1) and M.N.Thakur (DW/2). On careful perusal of the documents annexed to the petition and produced before the Court below, it appears that the petitioner has worked on daily wages basis as Mate but he has failed to demonstrate that he has worked on the post ofTime Keeper also during the period he was working on the post of Mate. The relevant period wherein the petitioner worked as Time Keeper is 10.01.1985 to 03.08.1985. The petitioner has failed to demonstrate that he has worked for a period of more than 240 days in 12 months as Time Keeper as his engagement during the relevant period was only for about 7 months. It was not possible for the petitioner to work for 240 days within a period ofseven months and as such, the petitioner is not entitled to any benefits under the provisions ofsection 25F ofthe Act, 1947. 9. Section 2 (oo) (bb) ofthe Act, 1947 reads as under: "2 (oo) "retrenchment" means the termination by the employer of the service pf a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include^ (a) xxx (6)xxx XXX XXX XXX XXX (bb) termination of the service pfthe workman as a result of the non-renewal of the contract of employment between the employer an_d the workman concemed on its expiry or of such /f'f^.¥^- ff S. ''1 '' i^te,- ^^:^-'-• '*'"»•!>!-? 10. 11. 13, //.'- ^^" contract being terminated under a stipulation in that behalfcontained therein; or XXX xxx' (c) xxx On bare pemsal ofthe aforesaid provision, it is clear that termination ofan employee or workman as a result ofnon renewal ofthe contract of employment between the employer and the workman on expiry of contract, does not come within the definition of 'reto'enchment'. In Haryana State Electronics Development Corporation v. Mamni, relied on by the petitioner, the facts involved therein was that the employee was engaged for 89 days on regular basis. Thereafter, she was re-appointed after a gap of 1 or 2 days again for 89 days. Such course of action was adopted by the employer with a view to defeat the object of the Act, 1947. Section 2(oo)(bb) of the Act, 1947, therefore, was not attracted in the said case. 12. Since this is a case of non-renewal of contract and the conto'act has come to an end on expiry ofthe contract period on 03.08.1985, thus, it does not fall within the defmition of 'reb-enchment under section 2(oo)(bb) ofthe Act, 1947 as after 03.08.1985. There was no other appointment and as such, it cannot be held that the purpose of the employer was to defeat the provisions ofthe Act, 1947. The Supreme Court, in Sita Ram & Others v. Moti Lal Nehru Farmers Traininglnstitute , observed as under: "14. The question as to whether the burden of propf was on the employer pr on the workman is ho longer It would be on the workman to prove that he had worked for two hundred and forty days in a year. However, where both the parties have adduced evidences, in most of the cases, the question would be academic. 15. In ONGC Ltd. v. Ilias Abdulrehman it was held: 'AIR 2006 SC 2427 2 (2008) 5 SCC 75 3 w*^ ; 14. 15. "8. A pemsal of the evidence adduced by the workman himself shows that he went in search of employment to different places and whenever there was a temporary employment available in different departments of the appellant Corporation, be it field work or the work in the Chemistry Department, he accepted the employment and worked in these departments not in one place alone but at different places like Baroda and Mehsana. It has come on record that the management did try to accommodate the appellant in a permanent job but could not do so because of lack of qualifications. In such circumstances we think that the Industrial Tribunal was justified in coming to the conclusion that the number of days of work put in by the respondent in broken periods, cannot be taken as a continuous employment for the purpose of Section 25-F of the Act, as has been held by this Court in Indian Cable Co. Ltd. We are aware that the judgment of this Court in Indian Cable Co. Ltd. was rendered in the context of Section 25-G of the Act, still we are of the opinion that the law for the puqiose of counting the days of work in different departments controlled by an apex corporation will be govemed by the principles laid down in Indian Cable Co. Ltd and the Industrial Tribunal was justified in dismissing the reference." (See also Range Forest Officer v. S.T. Hadimani, R.M. Yellatti v. Asstt. Executive Engineer, State of Maharashtra v. Dattatraya Digamber Birajdar (SCC para 8 : Scale para 6) and Ganga Kisan Sahkari Chini Mills Ltd. v. Jaiveer Singh.) 16. AIthough at one point of time, the burden of proofused to be placed on the employer, in yiew bf a catena of recent decisions, it rriust be held that fhe burden of proof is on the workman to show that he has completed 240 days in a year." Thus, the burden of proof is on the petitioner to demonstrate that he has worked for 240 days in a year. In the case on hand, the petitioner has failed to do so. Looking from others angle, the appointment of the petitioner was temporary and on ad hoc basis for a period of six months. Thus, the petitioner is not entitled to either regularization or continuation in service after the period of six months. It is trite that any appointment 6"^"\ 7 on ad hoc basis for a fixed period, does not confer any right on the petitioner for reinstatement, continuation or regularization in service (See Secretary, State of Karnataka & Others v. Umadevi (3) & Others and Official Liquidator v. Dayanand & Others ). 16. In Haryana State Electronic Development Corporation (supra), relied on by the petitioner, the Supreme Court observed as under: "12. However, indisputably, the respondent was appointed on an acf hoc basis. Sfie, although qualified to hold the post pf Junior Technician, when the advertisement had been issued for filling up the said post, did not apply therefor. The services ofthe respondent were terminated as far back as in the year 1992. Even if she is reinstated in her service on an ad hoc basis, her services cannot be regularised in view of a recent Constitution Bench decision of this Court in Secy., State of Karnataka v. Umadevi (3). Furthermore, she had absented herself for a period of 19 days from 20-1-1992 to 7-2-1992 and for a period of 11 days from 17-2-1992 to 27- 2-1992." 17. So far as question ofretaining otherjunior employees are concemed, it is trite that the equality clause cannot be enforced by a court in a negative manner. The Supreme Court, in State of Bihar v. Upendra Narayan Singh & Others , observed as under: "67. By now it is settled that-the guarantee of equality before law enshrmed in Ariicle 14 is a positive concept and it cannot be enforced by a citizen or court in a negative manner. If an illegality or irregularity has been comniitted in favour of any individual or a group of individuals or a wrong order has been passed by a judicial forum, ottiers cannot invoke the jurisdiction of the higher or superior court for repeating or multipfying the same irregularity or iUegality or for passing wrong ordet—ChcindigarhAdmn. v. Jagjit Singh, Jaipur Development Authority v. Ddulat Mal Jain, Union of India v. J.V. Subhaiah, Gursharan Singh v. NDMC, State of Haryana v. Ram Kumar Mann, Faridabad CT. Scan Centre v. D. G. Health Services, Style (Dress Land) v. UT, Chandigarh, State of Bihgr v. Kameshwar Prasad Singh, Union of India v. International Trading Co and Directorate of Film Festivals v. Gaurav Ashwih Jain." (2006) 4 SCC 1 (2008) 10 SCC 1 (2009) 5 SCC 65 .w 18. Applying well settled principles of law to the facts of the case on hand and for the reasons aforestated, the impugned award dated 20.08.1993 (Annexure P/21) passed by the Labour Court is unexceptionable and does not warrant interference. The writ petition accordingly fails and is dismissed. 19. There shall be no order asto costs. _ —— -— -—- Sd/- Satish K.Agnihotri Judge Amit