1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R Joseph Thomas v. The Judge, Labour Court, Jodhpur & Ors. S.B.CIVIL WRIT PETITION NO.7136/2005 under Articles 226 and 227 of the Constitution of India. Date of Order :: 19th December, 2008 P R E S E N T HON'BLE MR.JUSTICE GOVIND MATHUR Mr. Girish Sankhla, for the petitioner. Mr. D.K.Parihar, for the respondents. .... BY THE COURT : REPORTABLE To challenge the award dated 18.1.2005, passed by the Labour Court, Jodhpur and its publication as per Section 17 of the Industrial Disputes Act, 1947 (hereinafter referred to as “the Act of 1947”) by the appropriate government under a notification dated 6.8.2005, this petition for writ is preferred. In brief, the factual matrix necessary for adjudication of this petition for writ is that the Principal, Jawahar Navodaya Vidhyalaya, Jaswantpura District Jalore, initiated a process of selection for 2 appointment to the post of Electrician-cum-Plumber and for the purpose the petitioner was called for to face an interview on 12.9.1996. On selection, appointment was offered to the petitioner as Electrician-cum- Plumber on contract basis for a period of one year by the respondent No.2. The appointment of the petitioner was also approved by the Deputy Director, Navodaya Vidhyalaya Samiti, Jaipur Division, Jaipur. On 9.9.1997 an agreement for service was executed between the petitioner and the Principal, Navodaya Vidhyalaya, Jaswantpura, District Jalore, accordingly, the petitioner joined service on the same day. In the agreement it was specifically averred that the petitioner shall be engaged against a vacant post of Electrician-cum-Plumber and the petitioner have to perform duties in the Navodaya Vidhyalaya at par with the regular staff and as per the directions given by the Principal. As per clause (9) of the agreement the petitioner was also entitled for rent free accommodation within the Vidhyalaya Campus and was also entitled for free meals alongwith the students. The agreement of the employment was re-executed on 9.9.1998 with the same terms and conditions as referred in the agreement dated 9.9.1997. After a period of one year the agreement for employment was again executed on 10.9.1999 and whatever entitlements made in the agreement dated 9.9.1997 were continued. The agreement for employment was again executed on 17.1.2001 with the same terms and conditions as 3 referred in the first agreement of employment dated 9.9.1997. The agreement dated 17.1.2001 was also for a period of one year. The petitioner in pursuant to the agreements executed time to time in the manner stated above continued in the employment of the Principal, Jawahar Navodaya Vidhyalaya, Jaswantpura as Electrician-cum-Plumber from the date of his initial appointment i.e. 9.9.1997. The Principal, Jawahar Navodaya Vidhyalaya, Jaswantpura by an office order dated 16.1.2002 terminated the petitioner from service consequent upon the expiry of the terms of contractual agreement of employment dated 17.1.2001. Being aggrieved by the same the petitioner raised an industrial dispute which was referred for its adjudication to the Labour Court, Jodhpur by the appropriate government under a notification dated 8.9.2003 in the terms that “whether termination of employee (workman) Shri Joseph Thomas son of Shri Thomas K.M., Electrician-cum-Plumber w.e.f. 16.1.2002 by the Principal, Jawahar Navodaya Vidhyalaya Jaswantpura District Jalore is proper and valid? If not, then for what relief and amount the workman is entitled?” The petitioner in his statement of claim mentioned all necessary details regarding his employment with the Jawahar Navodaya Vidhyalaya Jaswantpura and alleged that his termination from service amounts retrenchment without adhering 4 mandatory condition precedents prescribed under Section 25-F of the Act of 1947. In written, the employer came forward with the case that termination of the workman is not a retrenchment as defined under Section 2(oo) of the Act of 1947 as the same was due to non renewal of the contract of employment between the employer and the workman concerned. The Labour Court by the award impugned held that the appointment of the petitioner was made on contract basis and the same came to an end due to non renewal of the contract and as such that is not retrenchment in view of the provisions of clause (bb) of Section 2(oo) of the Act of 1947. On basis of the finding above the Labour Court declined for granting any relief to the workman. While assailing validity of the award dated 18.1.2005 the argument of counsel for the petitioner is that the Labour court failed to appreciate that the petitioner was working with the employer for a work of paranial nature and the execution of service agreements time to time for a term of five years is nothing but a camouflage to prevent the workman from protection of various labour legislations including the Industrial Disputes Act. No reply to the writ petition is filed on behalf of the respondent employer, however, it is 5 asserted that termination of the petitioner from service is not at all a retrenchment in view of the provisions of clause (bb) of Section 2(oo) of the Act of 1947. Heard counsel for the parties. The term retrenchment is defined under Section 2(oo) of the Act of 1947 and that reads as follows:- “(oo)”retrenchment” means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include-- (a)voluntary retirement of the workman; or (b)retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (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; or (c)termination of the service of a workman on the ground of continued ill-health.” A Division Bench of Allahabad High Court in Shailendra Nath Shukla and others v. Vice-Chancellor, 6 Allahabad University and others, reported in 1987 Lab.I.C. 1607, while dealing with a similar question as involved in this petition for writ, held as follows:- “Terminations which are included in it are those which are brought about either because of non-renewal of contract or because of expiry of time stipulated in agreement. The meaning is plain and simple. But in a society with so wide gap where bargaining power of employee is nil who is exposed to exploitation the nature of employment cannot be judged on the letter issued by the employer but on the nature of duties performed. For instance workers employed for doing a particular job which may be for more than 240 days can be said to be covered by this clause as their engagement comes to an end because of completion of work. Similarly, a workman employed for a stipulated period or completion of work whichever may be earlier may be covered in this clause. But if contractual employment is resorted to as mechanism to frustrate the claim of employee to become regular or permanent against a job which continues or the nature of duties is such that the colour of contractual engagement is given to take it out from the principal clause then such agreement shall have to be tested on anvil of fairness and bona fide. An agreement for arm twisting or to perpetuate the policy of hire and fire cannot be deemed to be included in Cl.(bb). Because if it is left to employer not to renew contract whenever he likes irrespective of any circumstance then the protection 7 afforded to a workman by treating every termination of service as retrenchment shall be rendered nugatory. It has to be confined to those limited cases where either the work or post ceased to exist or job comes to an end or the agreement for a specific period was bona fide. It cannot be extended to such cases where the job continues and the employee's work is also satisfactory but periodical renewals are made to avoid regular status to the employees. That would be unfair labour practice.” A Division Bench of this Court in Bheem Raj v. Uttariya Rajasthan Sahkari Dugdh Utpadak Sangh Ltd., Bikaner & Vice-Versa, reported in 2000(3) WLN 690, opined that “merely writing in the order, a fix term of appointment by itself is not a conclusive proof of the fact that it is a fixed term employment. It depends on facts and circumstances of each case whether the employment offered was for a fix term or was only as a device to avoid the applicability of the beneficial provisions of the Industrial Disputs Act ensuring against arbitrary hire and fire principle adopted by the employments (employers). It is always open for adjudicatory body to lift the veil of the real transactions and if it comes to the latter conclusion the provisions of Section 2(oo)(bb) could not be attracted. In these circumstances, essentially in each cases this being a finding of fact would not be ordinarily subjected to the judicial review.” 8 In Alcobex Metals Ltd. v. State of Rajasthan & Ors., reported in 2004 WLC(Raj.) UC 260, a Division Bench of this Court held that the Labour Court is required to examine the real nature of work and termination of the employee concerned, if any exemption is claimed in view of the provisions of clause (bb) of Section 2(oo) of the Act of 1947. In the case aforesaid the Division Bench held as follows:- “33.It cannot be said that whenever workmen raised dispute about real nature of employment and real nature of termination, it can be frustrated solely by showing termination order embedded in order of appointment. The appointment ostensibly satisfying the provisions of Section 2(oo) (bb) in such cases becomes a matter of industrial adjudication. Whether the appointment in the first instance itself was bonafide for a fixed term or was a mere camouflage to release the employer from obligations arising under the Industrial Disputes Act. Such a dispute raised can only be solved by adjudication on the basis of material that may come before the Adjudicating Authority during the course of such proceedings.” By the Industrial Disputes Amendment Act, 1984 clause (bb) was introduced with Section 2(oo) of the Act of 1947. The purpose to incorporate clause (bb) in Section 2(oo) of the Act of 1947 was to 9 exclude certain workmen from the purview of the term retrenchment because of intermittent nature of their work without having regular relationship of employer and workman. The legislature while incorporating clause (bb) in Section 2(oo) of the Act of 1947 never intended to exclude the person employed for the work of paranial nature. As a matter of fact the work of paranial nature is not required to be undertaken through the contractor or by the workman on contract. It is not in dispute that the appointment was given to the petitioner as a consequent to his selection as Electrician-cum-Plumber against an existing vacancy available with the employer. The selection of the petitioner was also approved by the Deputy Director, Navodaya Vidhyalaya Samiti, Jaipur. In the first agreement for employment it was specifically mentioned that the workman have to perform duties in Navodaya Vidhyalaya at par with regular staff and as per the directions given by the Principal. The workman was also made entitled for rent free accommodation with the Vidhyalaya Campus if and as available. He was also made entitled for getting free meals alongwith the students. In all the service agreements the conditions of service were maintained as referred in the agreement of employment dated 9.9.1997 and the workman remained in service of Jawahar Navodaya Vidhyalaya, Jaswantpura uninterruptedly from 9.9.1997 to 16.1.2002. 10 The Labour Court, on basis of the service agreements reached at the conclusion that termination of the workman was due to non renewal of contract, therefore, in view of the provisions of Section 2(oo) (bb) of the Act of 1947 his termination is not a retrenchment. The Labour Court while reaching at such conclusion should have examined nature of duties discharged by the petitioner workman and also the process of selection, term of appointment and other service conditions. It is essential to check misuse of a statute, which is otherwise having essence of public welfare. In the present case the Labour Court made no effort to examine real nature of the duties discharged by the petitioner, the real nature of termination effected by the employer and the real reason to execute service agreement year by year. The provisions of Section 2(oo)(bb) of the Act of 1947 cannot be utilised by an employer to victimise a workman by way of discharge. The clause (bb) of Section 2(oo) of the Act of 1947 comes into picture only where a person is employed for a work of intermittent nature for a short term under an agreement. If any employer executes service agreement in terms relating to paranial nature of work only with view to keep the workman at a disadvantageous position with a view to avoid the applicability of the condition precedents for effecting a valid retrenchment, then that shall be 11 nothing but an unfair labour practice which is prohibited as per the provisions of Section 25-T of the Act of 1947. Such type of termination is a discharge simplicitor from service by way of victimisation. As said above, the petitioner remained in employment for five years and his services were utilised by the employer as a regular staff. The petitioner was also entitled for the residential accommodation and meals as given to the students. Before employing the petitioner as Electrician-cum- Plumber a process of selection was also conducted and appointment was given to him against a vacant post. This factual position available in instant matter establishes it well that the petitioner was employed to discharge a paranial work and he was having a relationship of workman with the employer. The service agreements were executed year by year by the employer only with view to deprive the petitioner from protection of the provisions of the Act of 1947 while effecting retrenchment. It is really unfortunate that the Jawahar Navodaya Vidhyalaya, that is an agency of the State adopted a practice against the thrust and will of a statute and also contrary to a public policy of a welfare state. A citizen of our country expects fair approach atleast from the government and its agencies, thus, such agencies should act fairly and should prove themselves as model employer. 12 The Labour Court in the dispute in hand utterly failed to examine the factual aspect regarding paranial nature of the duties discharged by the petitioner and also that he was employed against a vacant post available with the employer. The award impugned, therefore, is perverse and as such is bad. Accordingly, the petition for writ is allowed. The award dated 18.1.2005 passed by the Labour Court, Jodhpur in Industrial Dispute No.99/2003 is quashed. The reference made by the appropriate government to the Labour Court, Jodhpur under the notification dated 8.9.2003 is answered in the terms that the termination of the workman from the post of Electrician-cum-Plumber by the Principal, Jawahar Navodaya Vidhyalaya, Jaswantpura, District Jalore w.e.f. 16.1.2002 is a retrenchment effected without adhering the mandatory condition precedents to do so and, thus, is bad in eye of law. The same is declared illegal and the petitioner is declared entitled for reinstatement in service with all continuity. The petitioner is also declared entitled for a lump-sum compensation in a tune of Rs.1,00,000/- in lieu of back wages. ( GOVIND MATHUR ),J. kkm/ps.