( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 1376 OF 1996 The Executive Engineer, .. Petitioner Works Division, Zilla Parishad, Jalgaon. Versus 1. Abdul Sami A. Sayeed .. Respondents At post Pimprala, Taluka & Dist. Jalgaon. 2. The Presiding Officer, Labour Court, Jalgaon. Shri Vijay Sharma, Advocate for the petitioner. Shri Vijay Dixit, Sr. Counsel, for respondent No.1. Respondent No.2 is formal party. CORAM : P.R. BORKAR,J. DATED : 23.09.2009 ORAL JUDGMENT :- 1. This is a writ petition filed by the original party No.1 being aggrieved by the judgment and award dated ( 2 ) 04.12.1995, passed by the Presiding Officer, Labour Court, Jalgaon, in Reference I.D.A. No. 2 of 1990, whereby termination order dated 30.06.1987 issued by Ist party employer to the IInd party workman i.e. respondent No.1 terminating his services w.e.f. 01.07.1987, was quashed and set aside and the petitioner, who was Ist party, was directed to reinstate respondent No.1 with continuity of service within 30 days and 70% back wages from 12.05.1989 till the date of order i.e. dated 04.12.1995. However, it was held that respondent No.1 was not entitled to back wages for the period from 01.07.1987 to 11.05.1989. 2. Respondent No.1 filed claim statement dated 03.05.1991 alleging that from 01.03.1981 he was working as a Muster Assistant with the petitioner. In August, 1982 he was selected for training of Civil Engineer Assistant and after completion of one year training, he was appointed on 21.09.1984 as Assistant to Junior Engineer. By oral order dated 01.07.1987 he was terminated. Till then he was in continuous service. He was getting monthly salary of Rs. 1175/-. He was in continuous service. Without following the provisions of Section 25-F of the Industrial Disputes Act, ( 3 ) 1947 (for short “I.D. Act”), he was terminated and in the circumstances, prayer was made for reinstatement with back wages and continuity of service. 3. The Dy. Commissioner of Labour, Nasik Division, Nasik, thereafter made reference to the Labour Court and it came to be registered as Reference I.D.A. No. 2 of 1990. 4. Present petitioner filed written statement and it is denied that present respondent No.1 was in continuous service and Section 25-F of the I.D. Act is applicable. It is also denied that there were technical breaks given and there was illegal termination. It is stated that from 01.07.1987, there was no termination. His appointments were for particular period or until completion of project. As soon as the last period of employment was over, it was not renewed and there was no question of retrenchment. It is also stated that petitioner - Zilla Parishad has not sent respondent No.1 for training through Department, but he himself had undergone training. It is further stated that from 21.09.1984 respondent No.1 was appointed to supervise construction of "Bachat Bhavan" on work-charge basis as Assistant to Jr. ( 4 ) Engineer. The appointment was only for 29 days at that time and there was no oral termination as such. The period of employment came to an end as per the appointment letter. It is further stated that present respondent was not selected in the first batch of recruitment and there was no question of appointing him on vacant post. He was appointed on particular project for particular period and he has no right of continuation or regularization. In the circumstances, prayer was made to dismiss the application. 5. The learned Presiding Officer, Labour Court, Jalgaon, has come to a conclusion that respondent No.1 had completed 240 days of work prior to alleged termination and therefore he was in continuous service. There ought to have been compliance of Sections 25-F and 25-G of the I.D. Act and in absence of the same, respondent No.1 is entitled to the relief which he has claimed. 6. Heard Adv. Shri Vijay Sharma for the petitioner and Sr. Adv. Shri Vijay Dixit for respondent No.1. Adv. Shri Sharma submitted that the appointments were only for particular periods and for particular projects, and after the ( 5 ) project was over and/or after period of appointment was over, there was no renewal. In the circumstances under Section 2 (oo) (bb) of the I.D. Act, it does not amount to retrenchment. I reproduce Section 2 (oo) (bb) of the I.D. Act. It is as under:- "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) x x x x x (b) x x x x x (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) x x x x x” 7. Thus, it is clear that termination of service of workman as a result of non-renewal of contract of employment on its expiry is not retrenchment. Adv. Shri Sharma also relied upon several authorities. He has also taken me through the statement of respondent No.1, recorded by the Labour Court. The learned Adv. Shri Sharma has also taken me ( 6 ) through the pleadings, so also various documents on record. In his statement of claim in para 2, present respondent No.1 has given details of periods of appointments and the posts as follows:- Sr.No. Period of appointment Post 1. 21.09.1984 to 31.03.1985 Assistant to Jr. Engineer 2. 02.04.1985 to 31.10.1985 " 3. 02.11.1985 to 31.03.1987 " 4. 02.04.1987 to 30.04.1987 " 5. 02.05.1987 to 30.05.1987 " 6. 02.06.1987 to 30.06.1987 " 8. We get almost same statement along with letter dated 10.04.1992 sent by the Sub-Divisional Engineer, P.W.D., Zilla Parishad, Jalgaon, to the Executive Engineer. It is clear form these documents that last appointment was from 02.06.1987 to 20.06.1987 and there was no renewal. So, it is not a case of retrenchment or oral termination. There was non-renewal of the contract. 9. Before I draw any conclusion I may also refer to statement of respondent No.1 Abdul Sami recorded at Exh.6 by the Labour Court. Therein, in examination-in-chief, ( 7 ) respondent No.1 has stated that his services were terminated by first party employer w.e.f. 30.06.1987 after office hours by order dated 24.06.1987, which is at Exh. U-21. Said appointment letter is produced on record. It clearly shows that the appointment was for a period of 29 days w.e.f. 02.06.1987 to 30.06.1987. It was temporary appointment on construction of Primary Health Centre at Baitabad Tal. Jamner. The appointment was only for a period of 29 days and there was no right over the fresh appointment. It is also made clear by last paragraph that on 30.06.1987 after office hours, 29 days would be over and his services would come to an end. Other orders of appointment produced on record which are earlier in time also indicate that they were appointments of particular period for 29 days and they were temporary appointments. In examination-in-chief, respondent No.1 has stated that as per Government policy, disclosed in notification dated 07.08.1992 until first batch of training is absorbed, no candidate is to be recruited. In cross- examination, respondent No.1 admitted that he had not worked on same posts between 1981 to 1987. He voluntarily stated that he had worked on two posts as there were only two posts. He also admitted that there is no proof to show that it was ( 8 ) Zilla Parishad, who had sent him for training. As per order dated 12.12.1982, he worked as Mustering Assistant for 1 and 1/4 year. After completion of training and interview he came to be appointed as Assistant to Jr. Engineer from 21.09.1984. But, he also admitted that as per interview dated 05.04.1984 only six candidates were selected and he was not amongst those candidates. He also admitted that he was not appointed as per selection made in interview held on 05.04.1984. He was appointed on application dated 28.08.1984. So, these admissions in cross-examination clearly indicated that respondent No.1 was not selected during the interviews and it is not that he was properly selected candidate. He also admitted in cross-examination that he was appointed on the construction work of Bachat Bhavan only up to 31.03.1985. He had received five different orders of different dates for different work and after completion of work the petitioner used to give him break in service and he never objected to the breaks. He also admitted in his cross-examination that every time he was appointed by a written order. The period of appointment was mentioned in the appointment orders. Therein, it was also mentioned that the appointment was until completion of the work. Specific reference was also made to ( 9 ) appointment letter U-21. It was last appointment order and it was up to 30.06.1987. So, considering these circumstances, in my opinion, this is a case where it was not retrenchment. It was a case of non-renewal of employment after period of employment was over and that is specifically admitted subsequently in the cross-examination by respondent No.1 himself. He specifically admitted that that his services have been terminated as per the condition & clause of Exh.U-21 dated 24.06.1987. 10. The learned advocate Shri Vijay Sharma cited certain authorities. First is Madhyamik Siksha Parishad, U.P. V/s. Anil Kumar Mishra and Ors. etc. AIR 1994 S.C.1638. In that case the question of regularization was considered and it is held by the the Supreme Court that where post is not sanctioned and person working on temporary assignment, he has no right of regularization even though such person has completed 240 days of work. In the case before the Supreme Court, there were casual workers working temporarily under State Government. 11. Second case cited is Ganghdhar Pillai V/s. M/s. ( 10 ) Siemens Ltd., 2006 AIR SCW 6461. In that case the employee had been appointed as casual or temporary employee and that he had been employed for number of years. But it is held that same would not lead to the conclusion that such appointment had been made with the object of depriving him of the status and privilege of a permanent employee. It is also held that the concept of 240 days was introduced so as to fasten a statutory liabilities upon the employer to pay compensation to be computed in the manner specified in Section 25-F of the Industrial Disputes Act, 1947, before he is retrenched from services and not for any other purpose. In the event of violation of the said provision take place, termination of services of the employees may be found to be illegal, but only on that account, his services cannot be directed to be regularized. Direction to reinstate the workman would mean that he gets back the same status. 12. The third case cited is M.P. Housing Board and Anr. V/s. Manoj Shrivastava, AIR 2006 S.C.3499. In that case the employee was appointed as daily wager but not against a vacant post which was duly sanctioned by the statutory authority nor his appointment was made upon following the ( 11 ) statutory law operating in the field, it is held that he cannot be said to be permanent. It is further held that daily wager does not hold a post unless he is appointed in terms of the Act and the rules framed thereunder. He does not derive any legal right in relation thereto. Further, only because a person had been working for more than 240 days, he does not derive any legal right to be regularized in service. In this case it is admitted by respondent No.1 that he was not selected in the interview and the appointment was not as per selection made in interviews held, but it was on his subsequent application. 13. In the facts and circumstances, in my opinion, the Labour Judge has committed error in allowing reinstatement with back wages with continuity of service and therefore that order needs to be set aside. In the result, the petition is allowed. The order dated 04.12.1995 passed by the Labour Court, Jalgaon, is hereby quashed and set aside. However, it is directed considering the facts and circumstances of the case, that respondent No.1 may be employed whenever there is vacancy with the petitioner. ( 12 ) 14. Rule made absolute and the writ petition is disposed of accordingly. [P.R. BORKAR,J.] snk/2009/SEP09/wp1376.96