IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No 424 of 2000 in SPECIAL CIVIL APPLICATION No 8195 of 1999 with Civil Application No.6614 of 2000 For Approval and Signature: Hon'ble CHIEF JUSTICE MR DM DHARMADHIKARI and Hon'ble MR.JUSTICE P.B.MAJMUDAR ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgement? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : YES of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- SURAT MAHILA NAGRIK SAHAKARI BANK LTD Versus MAMTABEN MAHENDRABHAI JOSHI C/O SHARAD S PATHAK -------------------------------------------------------------- Appearance: Mr.V.B.Patel, Senior Advocate, with MR DEEPAK V PATEL for the Appellant MR AK CLERK for the Respondent -------------------------------------------------------------- CORAM : CHIEF JUSTICE MR DM DHARMADHIKARI and MR.JUSTICE P.B.MAJMUDAR Date of decision: 21/04/2001 C.A.V. JUDGEMENT (Per : MR.JUSTICE P.B.MAJMUDAR) 1. This Letters Patent Appeal is directed against the order of the learned single Judge dated 9th May, 2000 passed in Special Civil Application No.8195 of 1999, by which the learned single Judge has dismissed the Special Civil Application, which was filed by the present appellant and confirmed the orders passed by the Industrial Court as well as by the Labour Court. 2. The facts leading to the controversy are as under :- The appellant is a Cooperative Bank. It appoints the employees in different categories, i.e. Apprentice (Trainee), temporary employee, thereafter Probationer; and on completion of probationary period, permanent appointment is given to such employee. The aforesaid mode of recruitment is provided in the Model Standing Orders applicable to the appellant bank. 3. The present respondent was initially appointed as a Trainee in the Bombay Market Branch between 13th March, 1990 and 21st March, 1991, and different orders from time to time were given to her. Thereafter, she was appointed as Clerk-cum-Cashier-cum-Typist on temporary basis, for which initially appointment order was given for one month and from time to time, fresh temporary orders were given to her. As per the terms and conditions of each of the appointment orders, the appointment was for a period of one month. It is also provided that the services can be terminated on the expiry of the said period without notice and that the appointment is temporary and by such appointment order, no right to get appointed to any existing vacancy is given. Accordingly, such fixed term orders for 29 days were issued from time to time in favour of the respondent and on expiry of the said period, the same was subsequently extended from time to time by fresh temporary appointment orders. Last of such appointment orders was issued by the Bank for the period from 4th January, 1992 to 3rd February, 1992. By the said time, the respondent had worked as a temporary clerk for a period of 10 months. After 3rd February, 1992, no fresh order was given to her and virtually, therefore, her services were terminated after 3rd February, 1992. The said termination was challenged by the respondent-employee by filing T-Application No.249 of 1992 before the Labour Court, Surat, as, according to the respondent, the action of the Management, by which she was not given fresh appointment order, amounts to termination of her services without following the provisions of the Industrial Disputes Act. The respondent prior to moving the Labour Court wrote an Approach Letter dated 11.4.1992 to the Management and the same was replied by the Management. In the reply to the Approach Letter, it was stated on behalf of the Management that, initially, she was appointed as a Trainee in the Bank and during training period, her work was not found satisfactory and, therafter, since there was temporary work which was required to be handled, temporary orders were given to her by which she was appointed as a Temporary Clerk. It was also stated by the Bank in their reply to the Approach letter that such temporary orders were given for fixed period and during that period, her work was not found satisfactory and, therefore, after the period of last temporary order was over, no further order was given to her. As per the said reply, the services of the respondent-employee came to an end the moment the tenure period mentioned in the order was over. In the said reply, it was also stated that as per the need of temporary work of bank, such tenure orders are given and that, therefore, the respondent had no right to ask for permanent appointment in the Bank. The Management also took the stand in their reply that there was no unfair labour practice adopted by the Bank. 4. Therafter, the respondent-employee approached the Labour Court by resorting to the provisions of the Bombay Industrial Relations Act, 1946, by filing an application under Sections 78 and 79 of the said Act, with a prayer for reinstatement with back wages. As per the say of the applicant, the order of the Bank, terminating her services, was illegal, arbitrary, and contrary to the provisions of Section 25-F of the Industrial Disputes Act. It is her say that she was serving in the institution since about 2 years as Junior Clerk and that she was continued on temporary basis for a long time and lastly her monthly salary was Rs.2,012/-. It is also the say of the respondent-employee that since she has worked for more than 240 days in the preceding year, her services could not have been terminated without following the procedure of law. 5. The appellant-Management appeared before the Court and filed the Written Statement and denied the averments made by the applicant in her application. It was stated by the Bank that the applicant was initially appointed as a Trainee, but her work was not found satisfactory. As per their say, there was temporary need because of work load and she was given tenure order as a temporary clerk. Even during that period also, her work was not found satisfactory and, therefore, her temporary appointment was not further extended and, therefore, her services automatically came to an end moment the fixed period mentioned in the order of appointment was over. On these and such other averments, the said application of the employee was resisted by the Management. 6. Before the Labour Court, certain documents were produced by the applicant in the nature of various appointment orders. The opponent also produced certain documentary evidence before the Labour Court, such as Resolutions of the Committee, etc. Both the sides also led oral evidence before the Labour Court. After considering the oral as well as documentary evidence on record and after considering various case laws cited on behalf of both the sides and ultimately after hearing both the sides, in detail, the Labour Court came to the conclusion that the applicant was given artificial breaks from time to time and that she has completed 240 days continuously and, therefore, the Labour Court came to the conclusion that the work which the applicant was discharging with the Bank was of a permanent nature and that, along with the applicant, other employees were given such tenure orders by the Bank and they were subsequently confirmed by the Bank and as against that, the services of the applicant were terminated. The Labour Court also found that the impugned action of the Bank would amount to illegal retrenchment and that since the employee has worked for more than 240 days, her services could not have been terminated without following the procedure under Section 25-F of the Industrial Disputes Act. Ultimately, the Labour Court passed an order of reinstatement with full back wages by the judgment and order dated 11.2.1998. 7. The aforesaid order of the labour Court was challenged by the present appellant by way of Appeal, being Appeal (IC) No.2 of 1998, before the Industrial Court, Surat. The Industrial Court also confirmed the order of the Labour Court by coming to the conclusion that the concerned employee was serving on a temporary post, but the work which she was performing was of a permanent nature, that along with her, temporary orders were given to other employees and they were made permanent and the said benefit was not given to the applicant-employee and that the Bank has not followed the procedure of Section 25-F of the Industrial Disputes Act. The aforesaid reasoning is given in paragraph 19 of the judgment by the Industrial Court. The Industrial Court accordingly dismissed the said appeal and confirmed the order of the Labour Court. 8. The aforesaid order of the Industrial Court was further challenged by the appellant Bank by way of filing Special Civil Application No.8195 of 1999. The learned single Judge, by his order dated 9th May, 2000, came to the conclusion that the Labour Court has not committed any error and there is no infirmity in the order passed by the Labour Court as well as by the Industrial Court and that there was neither jurisdictional error nor procedural error which can be said to have been committed by the courts below. The learned single Judge observed in his judgment that Section 2(oo)(bb) cannot be resorted to when employer has exercised powers mala fide and arbitrarily, and has abused / misused the power with a view to seeing that the respondent may not be entitled to the benefit and protection available under Section 25-F of the I.D. Act. The learned single Judge also observed that merely because the employer has right to terminate the services of an employee by satisfying three conditions enunciated under Section 25-F of the Act, the same cannot give him an unrestricted right. It is the duty of the employer to establish the fact that such termination is justified in the circumstances of the case. The learned single Judge also came to the conclusion that it was a case of colourable exercise of power by the Management and the said action is mala fide. Accordingly, the learned single Judge dismissed the Special Civil Application by confirming the orders of the Industrial Court as well as of the Labour Court. The present Letters Patent Appeal is filed against the aforesaid judgment of the learned single Judge. 9. Mr.V.B. Patel, learned Senior Counsel, has argued the matter in great detail and has taken us through various judgments of the Apex Court and various High Courts to substantiate his say that once there is a tenure, fixed term appointment, provisions of Section 25-F are not applicable and that, on completion of period of appointment, nothing further is required to be done by the Management as the employment comes to an end automatically moment the period prescribed for the same is over. It is submitted by Mr.Patel that the learned single Judge has travelled beyond the pleadings and evidence on record, in as much as, it is never the case of the applicant before the Labour Court or before the Industrial Court that the Management's action is nothing but a colourable exercise of power or that it is arbitrary or tainted with mala fides. Mr.Patel further argued that, while deciding the matter, the learned single Judge was required to see whether any error of law or of jurisdiction is committed by the Labour Court or by the Industrial Court, but, surely, it was not open for the learned single Judge to make out a new case which was never pleaded or proved before the Labour Court and that in that sense, it was not an original proceedings before the High Court and, therefore, the learned single Judge should have confined his judgment only to the record of the case and not beyond that. It was also argued by Mr.Patel that if the reasoning of the Labour Court is contrary to the evidence on record or if relevant provisions of law and relevant pieces of evidence are not taken into consideration, it can be said that the Labour Court has committed an error of jurisdiction while exercising its power and in such cases, it would be open for the High Court to set aside such order as such finding of fact can be said to have been vitiated by non-consideration of relevant evidence and, to that extent, it can be said that there is a jurisdictional error committed by the Labour Court as well as by the Industrial Court. Mr.Patel further submitted that neither the Labour Court nor the Industrial Court nor the learned single Judge has properly appreciated the provisions of Section 2(oo)(bb) in their proper perspective and once there is a tenure appointment for a fixed period, Section 25-F is not applicable and moment the period mentioned in the appointment order is over, the employee can be sent home and, there is no need to follow the provisions of Section 25-F of the Act. In his view, therefore, moment there is a temporary order, nothing further is required to be done by the Management as the employee has got no right moment such period of appointment is over. 10. Mr.Patel further submitted that the concept of 240 days has no application when there is a tenure, fixed term appointment. Mr.Patel has relied on various judgments of the Apex Court and the High Courts interpreting the provisions of Section 2(oo)(bb), to which we will refer later on. Mr.Patel further argued that there is a procedure prescribed in the Model Standing Order, which is applicable to the appellant-bank and recruitment can be made only in the said manner. Mr.Patel also submitted that the work of the applicant-employee was found not satisfactory even during her temporary appointment and, therefore, it was open for the Bank not to continue her services on the said ground. He also further submitted that, it is, no doubt, true that other employees, who were also appointed along with her on such temporary basis, were given regular appointment orders on the post of Clerk. However, in his submission since their work was found satisfactory, such orders were given, but the applicant-employee could not have insisted for similar benefit, as, during the temporary period, her work was found not satisfactory and the said fact was also brought to her notice by mentioning the said fact in her appointment order about her non-satisfactory work. Lastly, it was submitted by Mr.Patel that there was absolutely no pleading or even evidence about the vindictive action of the Management. No such particulars are also given and each order is a new order and it comes to an end moment the period mentioned in the same is over. It was, therefore, submitted by Mr.Patel that, in that view of the matter, the order of the Labour Court, which was confirmed by the Industrial Court, as well as by the learned single Judge is required to be set aside and since the appointment of the respondent was a tenure, fixed term appointment, it should be held that it is not necessary for the Bank to follow any procedure as it is open for the Bank not to continue such appointment further. Mr.Patel has also further submitted that if ultimately her work was found satisfactory, she would have been given the same benefits which were given to the other employees. 11. Mr.Clerk, on the other hand, has supported the judgment of the learned single Judge, the Labour Court as well as of the Industrial Court. Mr.Clerk submitted that the respondent could not have been denied the benefit of the provisions of the Industrial Disputes Act by adopting the tactic of appointing a person on such temporary basis with the sole object to deprive her the benefit of Section 25-F of the Act. He submitted that the work, which the respondent was performing, was of a permanent nature and that, on appreciation of evidence, when the Labour Court as well as the Industrial Court have come to the conclusion that the action of the Bank was illegal, the same, essentially being a finding of fact, is not required to be interfered with by this Court. 12. We have heard both the sides in detail. The main question which is required to be considered in detail is about applicability of Section 25-F of the Industrial Disputes Act as well as provision of Section 2(oo)(bb) of the Industrial Disputes Act. It is required to be considered whether when there is a temporary, fixed term appointment, the same would, ipso facto, take out the case from the applicability of Section 25-F of the I.D. Act. It was argued by Mr.Patel that moment there is a fixed term appointment, nothing further is required to be seen and on completion of the period, if the services are not extended further, it is not open for the employee to make any grievance about non-compliance with the provisions of retrenchment. Mr.Patel argued that the object of introducing the aforesaid provision of Section 2(oo)(bb) itself is clear that moment the fixed term appointment is given, it cannot attract the provisions of Section 25-F of the I.D. Act. 13. Mr.Patel as well as Mr.Clerk have read the evidence led by the parties before the Labour Court, and we have also gone through the oral evidence adduced by both the sides before the Labour Court. 14. Mr.Patel's first argument is that the finding of fact regarding colourable exercise of power on the part of the Management is reached without there being any evidence on record and without there being any case of the employee pleaded before the Labour Court, and that a wrong question is addressed by the Court and the same is decided and, therefore, the said decision suffers from an error of jurisdiction as well as error of law. In T. Prem Sagar v. M/s. Standard Vacuum Oil Company, AIR 1965 SC 111, the Supreme Court has said that a writ of certiorari can be issued when the order of the inferior Tribunal is shown to suffer from an error which is apparent on the face of the record. It is not correct to say that unless an error of jurisdiction is established, or fraud proved, no writ of certiorari can be issued. When the Commissioner for Labour, who is empowered to deal with the question referred to in Section 51 of the Madras Shops and Establishments Act has given a decision that the appellant was a person employed and he was not in a position of management and if the Commissioner's order is shown to suffer from the infirmity or an error of law is apparent on the face of the record, the High Court would be justified in issuing a writ notwithstanding the fact that Section 51 of the Act purports to make the Commissioner's order final. The question, therefore, which is required to be considered is whether the courts below have applied any wrong principle or whether any material part of the evidence is misread while deciding the controversy in question. Therefore, in order to determine the said aspect, firstly, it is required to be considered whether the reasoning given by the Labour Court or by the Industrial Court is as per the evidence on record and whether the conclusion reached by the courts below is correct by applying correct principles of law. 15. Mr.Patel has relied upon the decision in M/s. Bharat Iron Works v. Bhaghubhai Balubhai Patel, AIR 1976 SC 98, wherein the Apex Court has said that victimization is a serious charge by an employee against an employer and, therefore, it must be properly and adequately pleaded giving all particulars upon which the charge is based, to enable the employer to fully meet them. The onus of establishing a plea of victimization will be upon the person pleading it. Mere allegations, vague suggestions and insinuations are not enough. All particulars of the charge brought out, if believed, must be weighed by the Tribunal and a conclusion should be reached on a totality of the evidence produced. Relying upon the said judgment, Mr.Patel argued that there is no evidence and even allegation in the application that the action of the Management was arbitrary, or that, as such, it was a colourable exercise of power. 16. Mr.Patel has further relied on the decision of the Apex Court in State of Rajasthan and others v. Rameshwar Lal Gahlot, (1996) 1 SCC 595. In the aforesaid decision, it was held by the Honourable Supreme Court that when there is an appointment for a specified period, termination on expiry of such period, unless found to be mala fide and in colourable exercise of powers, would be a valid termination and Section 25-F is not attracted in such cases. In paragraph 4, the Honourable Supreme Court held as under :- " ... ... ... 4. The controversy now stands concluded by a judgment of this Court reported in M. Venugopal v. Divisional Manager, LIC. Therein this Court has held that once an appointment is for a fixed period, Section 25-F does not apply as it is covered by clause (bb) of Section 2(oo) of the Act. It is contended for the respondent that since the order of the learned Single Judge was not challenged, the termination became final. Consequently, the appellant would be liable to pay back wages on reinstatement. In our considered view, the opinion expressed by the learned Single Judge as well as Division Bench are incorrect in law. When the appointment is for a fixed period, unless there is a finding that power under clause (bb) of Section 2(oo) was misused or vitiated by its mala fide exercise, it cannot be held that the termination is illegal. In its absence, the employer could terminate the services in terms of the letter of appointment unless it is a colourable exercise of power. It must be established in each case that the power was misused by the management or the appointment for a fixed period was a colourable exercise of power. Unfortunately, neither the learned Single Judge nor the Division Bench recorded any finding in this behalf. Therefore, where the termination is in terms of letter of appointment saved by clause (bb), neither reinstatement or fresh appointment could be made. Since the appellant has not filed any appeal against the order of the learned Single Judge and respondent came to be appointed afresh on 27.6.1992, he would continue in service, till regular incumbent assumes office as originally ordered. ... ... .... " 17. Mr.Patel has also relied upon the decision of the Honourable Supreme Court in M. Venugopal v. Divisional Manager, LIC, (1994) 2 SCC 323. In the aforesaid judgment, the appellant before the Supreme Court was appointed as Divisional Officer by the Life Insurance Corporation on probation for a period of one year. Clause 11 of the appointment order provided that on satisfactorily completing the period of probation, the employee was to be confirmed in the service of the Corporation in Class II and his confirmation was subject to fulfilment of the minimum business guarantee set out in paragraph 10 of the appointment order. Subsequently, his probation period was extended as he failed to achieve the target. He was also asked to improve his performance and, ultimately, before the expiry of the extended period of probation, the service of the appellant was terminated on May 9, 1986. The said order was challenged by way of writ petition in the High Court. The learned single Judge set aside the order of termination on the ground that the appellant was a `workman' within the meaning of the Industrial Disputes Act and the termination of his service will amount to `retrenchment', within the provisions of Section 2(oo) of the Act and the said action is null and void in view of the non-compliance of the requirement of Section 25-F of the Act. The said order was challenged in appeal and the Division Bench of