* THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN + W.P.No.1453 OF 1995 % Dated 07-07-2006 # Management of Divisional Engineer, Telecommunications, Mahaboobnagar, A.P. …. Petitioner Vs. $ Sri Venkataiah and another. …. Respondents ! Counsel for the Petitioner: Mr. R.S. Murthy ^ Counsel for the Respondent No.1: Mr. C. Suryanarayana <GIST: > HEAD NOTE: ? Cases referred [1] 1985 (2) LLJ 539 2 2002(2) ALD 462 3 2002(5) ALD 14(SC) 4 2003(2)LLJ 359 5 (2004)8 SCC 262 6 (2002(1) LLJ 258 7 (1994(1) LLN 606 8 2006(1) Decisions Today SC 493 9 1958 (1) LLJ 533 10 1963(1) LLJ 318 11 AIR 1969 SC 182 12 1961(2) LLJ 89 13 1993 LLR 112 14 (2006)3 SCC 81 15 2005(8) SCC 750 16 (2005) 3 SCC 409 17 AIR 2005 SC 1252 18 1979 LAB.I.C. 827 (SC) 19 1962(2) LLJ 227 (SC) 20 AIR 1959 SC 1191 21 1967(1) LLJ 423 (SC) 22 AIR 2005 SC 660 =(2005) 2 SCC 183 23 (2005) 2 SCC 470 24 (2005) 5 SCC 100 THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.1453 of 1995 ORDER: Aggrieved by the award of the Industrial Tribunal, (Central), Hyderabad in I.D.No.68 of 1990 dated 18.11.1993, whereby the 1st respondent was directed to be reinstated in service with full back wages and protection of seniority among employees of Mahaboobnagar District, the present writ petition is filed. Facts, to the extent necessary, are that the 1st respondent was employed on daily wages as a casual mazdoor from 10.1.1984 to 30.11.1984. After a break of seven months, his services was again engaged on 1.7.1985 and he worked continuously till 31.3.1986. During this period, between 1.7.1985 and 31.3.1986, he actually worked for 183 days and was not given weekly offs. Aggrieved by the action of the petitioner herein, in retrenching the 1st respondent from service, a dispute was raised and consequent thereto the Central Government referred the dispute to the Industrial Tribunal for adjudication. The order of reference reads as under: “Whether the action of the management of Divisional Engineer, Telecom, Mahaboobnagar in retrenching the workman Sri Venkataiah, Ex-casual Mazdoor w.e.f. 1.4.1986 is justified? If not to what relief the workman is entitled?” This reference was registered as I.D.No.68 of 1990. A claim statement was filed by the 1st respondent – workman. The petitioner herein filed their counter affidavit wherein they stated that the 1st respondent was engaged as a casual labour for a specific work and for a specified purpose w.e.f. 30.1.1984, that the 1st respondent was clearly informed that he would be provided with work as and when it was available and that his services were liable to be disengaged when there was no work, that he worked as a casual mazdoor for 231 days during the year 1984, 109 days during the year 1985 and 74 days during the year 1986 to render class IV duties purely on casual basis as there was heavy absenteeism and shortage of Group ‘D’ staff in the office, that the engagement of the 1st respondent was never continuous and was only casual depending on the availability of work and that the engagement was with the specific understanding that, as and when Group ‘D’ staff were available, his services would not be engaged. The 1st respondent was paid Rs.6/- per day for the work done by him and since there was no work with effect from 1.4.1986 his services were disengaged for want for work. The petitioner herein contended before the Tribunal that the 1st respondent had made his claim for reinstatement nearly 4 years after his disengagement, that the question of termination of a casual labourer did not arise as the work itself was casual in nature, that there were no merits in his claim and that he was not entitled for employment nor for the back wages claimed by him. Before the Industrial Tribunal, the 1st respondent examined himself as W.W.1 and marked Ex.W.1 to 17 as exhibits. On behalf of the petitioner herein Sri P.Janardhan Rao was examined as M.W.1. However no documents were marked as exhibits. M.W.1 deposed that the services of the 1st respondent were engaged as casual labour as there was heavy absenteeism, that before his engagement the 1st respondent was intimated that he was engaged only on temporary basis and in leave vacancies, that the 1st respondent was engaged from 30.1.1984 to November 1984 for 231 days, from July, 1985 to March 1986 for 183 days and because there was no vacancy of Group ‘D’ employees, after March, 1986, the 1st respondent was not engaged in service thereafter. The Tribunal held that retrenchment of the 1st respondent from service, with effect from 1.12.1984, was without notice, without payment of notice period wages and without complying with the mandatory provisions of Section 25-F of the Industrial Disputes Act and was in violation of the orders of the Central Government dated 1.10.1984, according to which casual mazdoors who had served the department for at least 240 days in a year and whose services were proposed to be terminated, were required to be given one month notice before termination of their service or one month wages in lieu thereof. The Tribunal further held that, though the number of days for which the 1st respondent was actually employed, during the period 30.1.1984 to 30.11.1984, was 231 days, the 37 Sundays, 10 Second Saturdays, 14 national and telegraph holidays for which the 1st respondent was entitled for wages was also to be added as part of his services within a year, in view of the judgment of the Apex Court in Workman of American Express International Banking Corporation v Its Management[1] and if so included the total number of days of employment of the 1st respondent, during the period between 30.1.1984 and 30.11.1984, was 292 days. The Tribunal held that for the period 1.7.1985 to 31.3.1986, though the 1st respondent was actually employed for 183 days, he was denied the benefit of paid holidays on 43 Sundays and other paid holidays during this period and thus the number of days worked out to 226 days. The Tribunal, however held that since the 1st respondent was illegally retrenched during the period from 1.12.1984 to 30.6.1985, this period was required to be counted as service for all purposes and therefore the 1st respondent should be deemed to be in continuous service preceding his retrenchment on 1.4.1986 and must be deemed to be in continuous employment from 30.1.1984 to 31.3.1986 as per Section 25-B of the Industrial Disputes Act. Relying on certain decisions of the Supreme Court, the Tribunal held that even if there was no post of Group ‘D’ to absorb him, the petitioner was entitled to conferment of temporary status as laid down in the Telecom Order dated 7.11.1989. The Tribunal held that the 1st respondent herein was entitled to reinstatement as Group ‘D’ employee with full back wages, protection of his seniority and for all other benefits which were incidental and consequential to such reinstatement. Sri R.S.Murthy, learned Standing counsel for the petitioner herein, would place before this Court the order of appointment, issued by the Department of Telecommunications, Office of the General Manager, Telecom, Mahabubnagar, dated 7.7.2000 whereunder the 1st respondent herein was appointed as a temporary status mazdoor consequent on his completing 240 days of service as casual mazdoor with effect from 9.6.2000 in the pay scale of Rs.2550-55-2660-60-3200. Among the terms of appointment was that after rendering three years of continuous service, on attaining temporary status, the 1st respondent would be treated on par with a temporary Group-D employee for the purpose of the contribution to GPF etc. Learned Standing Counsel would submit that, since the proceedings dated 7.7.2000 is independent of the Award of the Industrial Tribunal, irrespective of the result in the writ petition the 1st respondent would be continued in service pursuant to the proceedings dated 7.7.2000. Learned Standing Counsel would submit that the Award passed by the Tribunal is beyond the scope of the reference and since engagement of the 1st respondent, during the period from 1.7.1985 to 31.3.1986, was the subject matter of reference and not the earlier period from 30.1.1984 to 30.11.1984, the Tribunal had exceeded its jurisdiction in examining the validity of retrenchment of the services of the 1st respondent on 01.12.1984. Learned Standing Counsel would submit that since the 1st respondent herein had, admittedly, not put in 240 days of service during the 12 month period prior to 1.4.1986, he did not render continuous service as prescribed under Section 25-B of the Industrial Disputes Act and was consequently not entitled to the protection of Section 25-F of the Industrial Disputes Act. Learned Standing Counsel would submit that, even otherwise, since the 1st respondent was engaged on casual basis for temporary durations and he was informed accordingly, his case fell under the exceptions in clause (bb) of section 2(oo) and as such disengagement of the services of the 1st respondent from 1.4.1986 did not amount to retrenchment. Learned standing counsel would place reliance on Senior Regional Manager, Hindustan Petroleum Corporation Limited, Secunderabad v. Presiding Officer, Industrial Tribunal-I, Hyderabad[2], Haryana State F.C.C.W Store Limited v. Ram Niwas[3], S.M.Nilajkar v. Telecom District[4], Executive Engineer, ZP Engg. Divn. V. Digambara Rao[5]; Tarun Kundu v. State of West Bengal[6], Zakir Hussain v. Engineer in Chief, Irrigation Department[7], Secretary, State of Karnataka v. Umadevi[8]. Sri C.Suryanarayana, learned counsel for the 1st respondent, on the other hand, would seek to sustain the Award of the Industrial Tribunal and submit that the Tribunal was empowered to examine the question relating to the retrenchment of the services of the 1st respondent from 1.12.1984 also. Learned counsel would submit that the Industrial Tribunal was entitled to decide the date from which the award must be given effect to and would rely on British India Electric Construction Company Ltd v. Their Workmen[9] in this regard. Learned counsel would submit that the question relating to the retrospective nature of the Award was a matter exclusively in the discretion of the Tribunal and that it was open to the Tribunal to exercise its discretion and pass an Award from a date even prior to the date of the reference. Learned counsel would place reliance on Rajkamal Kalamandir (Private) Ltd v. Indian Motion Pictures Employees’ Union[10] and Hydro (Engineers) Private Limited v. Workmen[11] in this regard. Learned counsel would submit that the law of limitation is not applicable to Industrial Tribunals and would rely on Inder Singh & Sons v. Workmen[12]. Learned counsel would also rely on Ganganath K.S.Vidyalaya v. Mandal[13]. Before examining the rival contentions it is necessary to take note of the relevant provisions of the Industrial Disputes Act. Retrenchment, as defined in Section 2(oo) of the Industrial Disputes Act, reads 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) 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” Chapter III relates to Reference of disputes to Board, Courts or Tribunals and Section 10 thereunder reads thus: “10 Reference of disputes to Boards, Courts or Tribunals (1) Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing,- (a) refer the dispute to a Board for promoting a settlement thereof; or (b) refer any matter appearing to be connected with or relevant to the dispute to a Court for inquiry; or (c) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or (d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudication: Provided that where the dispute relates to any matter specified in the Third Schedule and is not likely to affect more than one hundred workmen, the appropriate Government may, if it so thinks fit, make the reference to a Labour Court under clause (c) : Provided further that where the dispute relates to a public utility service and a notice under section 22 has been given, the appropriate Government shall, unless it considers that the notice has been frivolously or vexatiously given or that it would be inexpedient so to do, make a reference under this sub-section notwithstanding that any other proceedings under this Act in respect of the dispute may have commenced: Provided also that where the dispute in relation to which the Central Government is the appropriate Government, it shall be competent for that Government to refer the dispute to a Labour Court or an Industrial Tribunal, as the case may be, constituted by the State Government; (1-A) Where the Central Government is of opinion that any industrial dispute exists or is apprehended and the dispute involves any question of national importance or is of such a nature that industrial establishments situated in more than one State are likely to be interested in, or affected by, such dispute and that the dispute should be adjudicated by a National Tribunal, then, the Central Government may, whether or not it is the appropriate Government in relation to that dispute, at any time, by order in writing, refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a National Tribunal for adjudication. (2) Where the parties to an industrial dispute apply in the prescribed manner, whether jointly or separately, for a reference of the dispute to a Board, Court, Labour Court, Tribunal or National Tribunal, the appropriate Government, if satisfied that the persons applying represent the majority of each party, shall make the reference accordingly. (2-A) An order referring an industrial dispute to a Labour Court, Tribunal or National Tribunal under this section shall specify the period within which such Labour Court, Tribunal or National Tribunal shall submit its award on such dispute to the appropriate Government : Provided that where such industrial dispute is connected with an individual workman, no such period shall exceed three months : Provided further that where the parties to an industrial dispute apply in the prescribed manner, whether jointly or separately^ to the Labour Court, Tribu- nal or National Tribunal for extension of such period or for any other reason, and the presiding officer to such Labour Court, Tribunal or National Tribunal considers it necessary or expedient to extend such period, he may for reasons to be recorded in writing, extend such period by such further period as he may think fit: Provided also that in computing any period specified in this sub-section, the period, if any, for which the proceedings before the Labour Court, Tribunal or National Tribunal had been stayed by any injunction or order of a Civil Court shall be excluded: Provided also that no proceedings before a Labour Court, Tribunal or National Tribunal shall lapse merely on the ground that any period specified under this sub-section had expired without such proceedings being completed. (3) Where an industrial dispute has been referred to a Board, Labour Court, Tribunal or National Tribunal under this section, the appropriate Government may by order prohibit the continuance of any strike or lock- out in connection with such dispute which may be in existence on the date of the reference. (4) Where in an order referring an industrial dispute to a Labour Court, Tribunal or National Tribunal under this section or in a subsequent order, the appropriate Government has specified the points of dispute for adjudication, the Labour Court or the Tribunal or the National Tribunal, as the case may be, shall confine its adjudication to those points and matters incidental thereto. (5) Where a dispute concerning any establishment or establishments has been, or is to be, referred to a Labour Court, Tribunal or National Tribunal under this section and the appropriate Government is of opinion, whether on an application made to it in this behalf or otherwise, that the dispute is of such a nature that any other establishment, group or class of establishments of a similar nature is likely to be interested in or affected by, such dispute, the appropriate Government may, at the time of making the reference or at any time thereafter but before the submission of the award, include in that reference such establishment, group or class of establishments, whether or not at the time of such inclusion any dispute exists or is apprehended in that establishment, group or class of establishments. (6) Where any reference has been made under sub-section (1A) to a National Tribunal, then notwithstanding anything contained in this Act, no Labour Court or Tribunal shall have jurisdiction to adjudicate upon any matter which is under adjudication before the National Tribunal, and accordingly,- (a) if the matter under adjudication before the National Tribunal is pending in a proceeding before a Labour Court or Tribunal, the proceeding before the Labour Court or the Tribunal, as the case may be, insofar as it relates to such matter, shall be deemed to have been quashed on such reference to the National Tribunal; and (b) it shall not be lawful for the appropriate Government to refer the matter under adjudication before the National Tribunal to any Labour Court or Tribunal for adjudication during the pendency of the proceeding in relation to such matter before the National Tribunal. Explanation: In this sub-section “Labour Court” or “Triobunal” includes any Court or Tribunal or other authority constituted under any law relating to investigation and settlement of industrial disputes in force in any State. (7) Where any industrial dispute, in relation to which the Central Government is not the appropriate Government, is referred to a National Tribunal, then notwithstanding anything contained in this Act, any reference in section 15, section 17, section 19, section 33A, section 33B and section 36-A to the appropriate Government in relation to such dispute shall be construed as a reference to the Central Government but, save as aforesaid and as otherwise expressly provided in 'this Act, any reference in any other provision of this Act to the appropriate Government in relation to that dispute shall mean a reference to the State Government. (8) No proceedings pending before a Labour Court, Tribunal or National Tribunal in relation to an industrial dispute shall lapse merely by reason of the death of any of the parties to the dispute being a workman, and such Labour Court, Tribunal or National Tribunal shall complete such proceedings and submit its award to the appropriate Government.” Chapter V-A relates to lay off and retrenchment and Section 25-B thereunder is the definition of continuous service. Section 25-B reads thus: “25-B. Definition of continuous service:—For the purposes of this Chapter,— (1) a workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service, including service which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lockout or a cessation of work which is not due to any fault on the part of the workman; (2) where a workman is not in continuous service within the meaning of clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer— (a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than— (i) one hundred and ninety days in the case of a workman employed below ground in a mine; and (ii) two hundred and forty days, in any other case; (b) for a period of six months, if the workman, during a period of six calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than— (i) ninety-five days, in the case of a workman employed below ground in a mine; and (ii) one hundred and twenty days, in any other case. Explanation.—(Omitted as not relevant for the present case.)” Section 25-F prescribes the conditions precedent to retrenchment of a workman and reads as under: 25F Conditions precedent to retrenchment of workmen:- No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until - (a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice; (b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months; and ( c) notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette” NON RENEWAL OF CONTRACT OF EMPLOYMENT/TERMINATION OF SUCH CONTRACT IN TERMS OF THE STIPULATION CONTAINED THEREIN: DOES NOT AMOUNT TO RETRENCHMENT: Sri R.S. Murthy, learned Standing Counsel for the petitioner herein, would contend that since the 1st respondent was engaged on a casual basis for a temporary duration and he was informed accordingly, his case fell under the exception in clause (bb) of Section 2(oo) and as such his disengagement from service from 01.04.1986 did not amount to retrenchment. In Municipal Council, Samrala Vs. Raj Kumar[14], the Supreme Court held thus:- “……..Clause (oo)(bb) of Section 2 contains an exception. It is in two parts. The first part contemplates termination of service of the workman as a result of the non-renewal of the contract of employment or on its expiry, whereas the second part postulates termination of such contract of employment in terms of stipulation contained in that behalf……” “……..The decision of this Court is not an authority for the proposition that apart from a project or a scheme of temporary duration, Section 2(oo) (bb) of the Industrial Disputes Act will have no application. Furthermore, in the instant case, as has been noticed by this Court in S.M. Nilajkar: (2003)4 SCC 27 itself, the respondent was categorically; informed that as per the terms of the contract, the same was a short-lived one and would be liable to termination as and when the appellant thought it fit or proper or necessary to do so. Yet again, this Court in view of the facts and circumstances prevailing therein had no occasion to consider the second part of Section 2(oo)(bb) of the said Act……..” (emphasis supplied). Thus both cases, (1) where a contract of employment for a specific period is not renewed on its expiry and (2) where a contract of employment is terminated in terms of the stipulation contained in the contract; would fall under the exception in clause (bb) of Section 2(oo) of the Industrial Disputes Act, and termination of such employment would not amount to retrenchment. In S.M. Nilajkar4, the Supreme Court held thus:- “……The termination of service of a