HIGH COURT OF UTTARAKHAND, AT NAINITAL Writ Petition No.1092 of 2006 (M/S) M/s Bharat Heavy Electricals Ltd. Rudrapur, District U. S. Nagar … Petitioner Versus State of Uttarakhand & others … Respondents Dated:- 09th June, 2010 Hon’ble Tarun Agarwala, J. Heard Sri V. K. Kohli, the learned senior counsel assisted by Sri P. C. Pandey, the learned counsel for the petitioner and Sri Sharad Sharma, the learned senior counsel assisted by Sri A. S. Bisht, the learned counsel for the respondent no.3. 2. The petitioner is the public sector company and has assailed the validity and legality of the award passed by the Labour Court, Haldwani by which the labour court has held that the order of termination dated 05th August, 1999 was illegal and accordingly reinstated the respondent no.3 with continuity of service with 25% of backwages. 3. The brief facts leading to the filing of the writ petition is that the husband of respondent no.3 was a permanent employee in Bharat Heavy Electricals Limited and was working as a Driver and died in harness on 01.03.1998 leaving behind his widow respondent no.3 and three minor children. Since the family was in penurious condition, the respondent no.3 applied for appointment on compassionate grounds under the relevant dying in harness scheme. It is alleged that since there was no vacancy in the permanent establishment, the petitioner appointed the respondent no.3 on petty works on a contract basis for the manufacture of Solar Lanterns and, in this manner, the petitioner through various work orders allowed the respondent no.3 to work from 2 24th April, 1998 to 05th August, 1999 and thereafter did not extend the work period. 4. The workman respondent no.3, being aggrieved by the non- renewal of the contract, raised an industrial dispute with regard to the alleged termination dated 05th August, 1999. The State Government eventually referred the dispute with regard to the validity and legality of termination order dated 05th August, 1999. 5. The contention of the learned counsel for the workman before the labour court was that upon the death of her husband she applied for appointment on compassionate grounds and that the employer issued a work-order for a limited period and, on that basis, she was allowed to continue to work from 24th April, 1998 to 05th August, 1999 without any break in service. It was alleged that she had put in service for more than 240 days in a calendar year and, having worked continuously, the order of termination was in violation of Section 25F of the Industrial Disputes Act and, therefore, she was entitled for reinstatement in service with continuity of service and with full backwages. 6. On the other hand, the stand of the employer is that since there was no vacancy and in the absence of any sanctioned post, it was not possible for the employer to appoint the workman on compassionate ground, but, considering the penurious condition of respondent no.3 and being a widow of an ex-employee, the employer allowed her to work on a contract basis. The employer submitted that the engagement of respondent no.3 was on a contract basis for petty works and that she was not a workman as defined under Section 2(s) of the I.D. Act and, thereafter, she was not entitled for retrenchment compensation. Alternatively, the employer took a stand that assuming that she was a workman, she was engaged on contract basis for a specified period of 3 work and, consequently, in view of the provision of Section 2(oo)(bb) of the I.D. Act, she was not entitled for retrenchment compensation. 7. The labour court, after considering the material evidence on record, held that since the workman had worked for more than 240 days in a calendar year and had worked continuously, she was entitled to be given retrenchment compensation as provided under Section 25F of the I.D. Act. Since the retrenchment compensation was not paid to the workman, the order of termination was illegal and, therefore, she was entitled to be reinstated with continuity of service with 25% of backwages. The employer, being aggrieved by the said award, has filed the present writ petition. 8. Before this Court, the learned senior counsel for the petitioner has taken the same stand, namely, that the respondent no.3 was not a workman and was engaged on a humanitarian ground on a contract basis for petty works so that she could tide over the financial crises. It was also alleged that in any case, the workman was not entitled for any retrenchment compensation under Section 2(oo)(bb) of the I.D. Act. 9. Having heard the learned senior counsel for the parties at some length, this court is of the opinion that the award of the labour court does not require any interference. Considering the various documents brought on the record, at best, the said documents can only show that the respondent no.3 was engaged on petty works for a limited period of time and, therefore, it can safely be said that the respondent no.3 was engaged on a contract basis. In view of this, the provision of Section 2(oo)(bb) of the I.D. Act will come into picture, which is an exception clause of the definition of ‘retrenchment’, but, it does not mean that the employer would be justified to engage a labourer on petty works for a continuous long period of time. The employer has a right to engage a labour on a contract basis for any period of time, but, if the workman is 4 allowed to work continuously without any break in service for one year, he shall be in continuous service as defined under Section 25B of the I.D. Act, in which case, the workman would be entitled for payment of retrenchment compensation as provided under Section 25F of the I.D. Act. In the present case, assuming that the respondent no.3 was working on a contract basis for a specified period of time, but, was allowed to work continuously for more than 240 days in a calendar year, the workman automatically become entitled for payment of retrenchment compensation as provided under Section 25-F read with Section 25B of the I.D. Act. In the present case, there is a categorical finding of fact that the respondent no.3 had worked for more than 240 days i.e. continuously from 28th April, 1998 to 05th August, 1999, which fact has not been controverted and, even otherwise, this being a finding of fact, the court is not inclined to interfere under Article 226 of the Constitution. Consequently, this court is of the opinion that the respondent no.3 was entitled for retrenchment compensation. Since the retrenchment compensation was not paid, the court is not inclined to interfere in the finding of the labour court with regard to reinstatement with continuity of service and with 25% of backwages. 10. There is another aspect of the matter. Admittedly, the husband of respondent no.3 was employed as a Driver in the permanent capacity and died in harness. There is a scheme of the employer for an appointment on compassionate grounds in which the respondent no.3 had applied, but, such appointment could not be given since there was no vacancy and, consequently, the employer taking a humanitarian approach and considering her penurious condition, gave her appointment on compassionate grounds on a contract basis. No doubt, the employer had a large heart and allowed the respondent no.3 to work so that she could tide over the financial crises, but, at the same time, it was also the onerous duty of the employer, being a public sector company, to process her application with regard to permanent 5 appointment on compassionate grounds under the scheme framed by the employer, which the court finds that it was never done. It is not sufficient for the employer to state that there was no vacancy. If the vacancies are not existing, then in exceptional circumstances, a supernumerary post could be created. 11. In the light of the aforesaid, this court is of the opinion that the award of the labour court does not suffer from any error of law. The writ petition is dismissed. (Tarun Agarwala, J.) Dated 09.06.2010 LSR