IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE THIRTEENTH DAY OF MARCH TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 7627 of 1999 Between: The Divisional Engineer, Coaxial Maintenance, Telecom Department, Visakhapatnam - 530 001. ..... PETITIONER AND 1 K. Nageswara Rao, C/o.China Satyam, Kondanarapeta, Tuni - 533 401. 2 The Presiding Officer, Industrial Tribunal-cum-Labour Court, Visakhapatnam. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue a writ or order or directions more particularly one in the nature of Mandamus and to declare the award dated 30.03.98 of the Industrial Tribunal Cum Labour Court, Visakhapatnam in IT ID No.(C) 3/95 on the file of the Industrial Tribunal cum Labour Court, Visakhapatnam as being illegal, null and void and pass such other order or orders Counsel for the Petitioner:MR.R.S.MURTHY Counsel for the Respondent No.: GP FOR LABOUR The Court made the following : THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.7627 of 1999 ORDER: Aggrieved by the award of the Industrial Tribunal, Visakhapatnam in I.T.I.D(C) No.3/95 dated 30.3.1998, the Divisional Engineer, Telecom Department is before this Court. The Central Government referred the following dispute for adjudication by the Industrial Tribunal-cum-Labour Court, Visakhapatnam: “Whether the action of the management of Divisional Engineer, Coaxial, Viskhapatnam in terminating the services of Sri K.Nageswara Rao is justified? If not to what relief the workman is entitled to?” The Tribunal held that termination of the services of the workman was contrary to Section 25-F of the Industrial Disputes Act and, since it was admitted that the workman had put in more than 240 days of service, his termination was illegal and invalid. However, since the workman had approached the Tribunal seven years after his termination, he was denied 50% back wages. Before this Court, Sri R.S.Murthy, Learned Standing Counsel for the petitioner, would contend that since termination of the services of the respondent – workman is in accordance with Section 2(oo)(bb) of the Industrial Disputes Act, it would not amount to retrenchment and consequently Section 25-F of the Industrial Disputes Act was not attracted. Learned Standing Counsel would fairly state that the respondent – workman had worked for 240 days in the 12 months period preceding his termination. He admits that, except for the work orders, there was no other contract in force. He would, however, contend that since the very basis of engagement of the workman is in accordance with the work orders, and the workman was not engaged after the period specified in the work order, termination of his services falls within Section 2(oo)(bb) of the Act and the Tribunal had erred in holding such termination to be in violation of Section 25-F of the Industrial Disputes Act. Learned counsel would rely on Municipal Council, Samrala v. Rajkumar[1], M.D.Karnataka Handloom Dev. Cropn.Ltd. v. Mahadev Laxman Rval[2], Bhogpur Co-op. Sugar Mills Ltd. v. Harmesh Kumar[3] Surender Kumar Sharma v. Vikas Adhikari[4] and State of Rajasthan v. Rameshwar Lal Gahlot[5]. Sri G.Vidyasagar, Learned Counsel for the respondent – workman, would emphasize that, in the absence of any contract having been entered into and as no appointment order had been issued to the respondent workman, Section 2(oo) (bb) was not attracted. Learned counsel would rely on S.M.Nilajkar v. Telecom Distt. Manager[6]. In the present case it is not in dispute that the workman had rendered continuous service of a year as stipulated under Section 25- B of the Industrial Disputes Act. It is also not in dispute that the respondent – workman was not issued any letter of appointment nor was any contract entered into between the petitioner herein and the workman. The question which arises for consideration is whether, in such circumstances, Section 2(oo)(bb) of the Act was attracted. Section 2(oo) (bb) of the Industrial Disputes Act reads thus: Section 2(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; Sub-Section (bb): “termination of the service of the workman as a result of the non-renewal of the contract of the 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” As held in S.M.Nilajkar6, in a limited category cases, termination of the services of workmen, engaged in a scheme or project, may not amount to retrenchment within the meaning of sub- clause (bb) of Section 2(oo). In order to attract clause (bb) of Section 2(oo), the following conditions are required to be satisfied: (i) that the workman was employed in a project or scheme of temporary duration; (ii) the employment was on a contract, and not as a daily- wager simpliciter. The contract should have provided, inter alia, that the employment shall come to an end on the expiry of the scheme or project; (iii) the employment came to an end simultaneously with termination of the scheme or project and consistently with the terms of the contract; and (iv) the workman ought to have been apprised or made aware of the above said terms by the employer at the commencement of employment” Since the entire basis, for the contention of Sri R.S.Murthy, is that the work order was, in substance, a contract, it is necessary to refer to one such work order: “Indian Posts and Telegraphs Department Office of the General Manager Mtce., Southern Telecom. Region, Madras-1” No.GM/STR-15/PUNISHMENT/II/83-84/54 dated at MS-1 the 16.1.1984 ------------------------------------------------------------------------------------- Sub: Sanction of casual Mazdoor – Reg. Permission of the G.M.Mtce., Southern Telcom. Region, Madras-600 001 is hereby conveyed for employing two casual mazdoors in Tuni- Visakhapatnam Section –13 under AE/CXL Mtce., Tuni for keeping watch and ward over the cable route in the river bed of ‘Rangabolugedda’ for a period of six months. The expenditure incurred in this connection may be debited to 356 telecom.N4(4) wages and should be met from the sanctioned grant of the he sub.Dn. The appointment of Casual Mazdoor may be made according to the standing instructions issued by this office from time to time in this regard. (sd/-xx) Astt. Engineer (A) For GMM, STR, MS-1” It is necessary to note that this work order has been issued by the Assistant Engineer in the office of the GMM, Southern Telecom to the Assistant Engineer, CXL Mtce. The said work order accorded permission for employing two casual mazdoor for keeping watch and ward over the cable route in the river bed of ‘Rangabolugedda’ for a period of six months, the expenditure incurred was required to be debited to a particular head of account and was to be met from the sanctioned account. The work order provided that appointment of casual mazdoor may be made according to the standing instructions issued by the office from time to time. It is necessary to note that this work order is not even addressed to the respondent-workman. It defies reason as to how a letter addressed by the Southern Telecom Region head office to the Assistant Engineer, even without a copy thereof being marked to the workman, would constitute a contract between the petitioner and the respondent – workman. The muster roll book marked as Ex.W.1 before the Tribunal, reliance on which is placed by Sri R.S.Murthy, the Learned Standing Counsel, contains details of the name of the mazdoor, the date from which he was engaged, the date upto which he was engaged, his roll number, the work order, the number of days he worked and the signature of the paying officer. Ex.M.1 muster roll book cannot be construed as a contract of employment, more particularly, a contract which provides that the employment shall come to an end after a specific duration on the expiry of the scheme or a project. Now to the judgments relied upon by Sri R.S.Murthy, Learned Standing Counsel for the petitioner. In Municipal Council, Samrla1 the workman himself filed an affidavit that he was engaged on contract basis by the Municipal Council. The workman was given an offer of appointment whereby he was specifically informed that his services would be availed till it was considered appropriate and thereafter his services would be dispensed with. The workman had submitted an affidavit declaring that he had no objection if the Municipal Council dispensed with his services as it had the right to do so and, accordingly, the services of the workman were dispensed with by an order passed by the Municipal Commissioner. It is in such circumstances that the Supreme Court held that, as the termination of appointment was approved by the Executive Council, as the workman had understood that his appointment would be short-lived and his services could be terminated at any point of time as it was on the basis of a contract and it was only in that view of the matter that he had sworn to an affidavit, his case clearly fell under Section 2(oo)(bb) of the Industrial Disputes Act. Unlike in Municipal Council, Samrla1, there is no evidence on record in the case on hand to show that the respondent workman was even made aware that his services were engaged for a specific duration and that his services were liable to be terminated at the end of the stipulated period of employment. All these are questions of fact for which evidence ought to have been adduced before the Industrial Tribunal and, since there is no evidence on record in this regard, it cannot be said that termination of services of the respondent workman falls within the ambit of Section 2(oo)(bb) of the Industrial Disputes Act. In Mahadeva Laxman Raval2 a specific order of appointment was issued to certain expert weavers whose services were engaged, to train other individuals as weavers, under a scheme sponsored by the Government of Karnataka. The order of appointment specifically referred to the scheme and informed the appointees that they had been considered for appointment as expert weavers on a stipend of Rs.1000/- per month for a period of nine months on the terms and conditions mentioned in the said offer of appointment. It is in such circumstances that the Supreme Court held that, since the respondent-workman had been engaged on a tenure basis for a specific period under a scheme, and paid stipend from the date of his appointment, his case fell under Section 2(oo)(bb) of the Industrial Disputes Act. The judgment in S.M.Nilajkar6 was distinguished in Mahadev Laxman Raval2. In the case on hand no offer of appointment, much less an appointment letter indicating the period of engagement, was issued to the respondent – workman and as such the judgment in Mahadev Laxman Raval2 has no application. In Bhogpur Co-op Sugar Mills Ltd3, the Supreme Court held that termination of the services of a workman as a result of non- renewal of the contract of engagement on its expiry, or termination of such contract of appointment under a stipulation in that behalf contained therein, would not attract the definition of ‘retrenchment’. As noted above, unlike in Bhogpur Co-op Sugar Mills Ltd3, in the present case there is no written contract of employment nor is there anything to indicate that the respondent workman was ever made aware that his appointment was for a specific duration and that his services would automatically stand terminated on the expiry of a particular period. In Rameshwar Lal Gahlot[7], the Supreme Court held that, in cases where appointment is for a fixed period unless there is a finding that the power under clause (bb) of Section 2(oo) was misused or vitiated by malafides, it could not be held that termination was illegal and, in its absence, the employer could terminate the services of the workman in terms of the letter of appointment unless it was a colourable exercise of power. As noted above, in the case on hand there is not even a letter of appointment. Similarly, in Surender Kumar Sharma4, the engagement of the services of the workman was for a period of 100 days by a specific order in terms of the scheme known as ‘Rural Employment Programme’. The appellant was a daily wager in a scheme and knew it well that his employment was co-terminus with the scheme, that the post against which the appellant worked had been abolished for want of funds and had ceased to exist. There is nothing on record in the present case to show that the respondent workman was even made aware that his employment was for a specific period, let alone a specific contract having been entered into whereby his services were engaged for a specific duration. None of the judgments relied upon by Sri R.S.Murthy, Learned Standing Counsel, would support his contention that termination of the services of the respondent workman is in accordance with Section 2(oo)(bb) of the Industrial Disputes Act. In the impugned Award, the Tribunal had directed payment of 50% back wages to the workman on the ground that, since he had approached the Industrial Tribunal belatedly after 7 years, he was entitled only for 50% of the back wages. As has been held by the Supreme Court, in J.K.Synthetics v. K.P.Agrawal[8], several factors are required to be taken into consideration by the Tribunal in determining the question whether or not back wages should be awarded. They include questions whether the workman was engaged elsewhere in the interregnum, the period for which he was engaged, whether it was for a long or a short duration etc. None of the factors, referred to in J.K.Synthetics8, has been examined by the Tribunal in awarding 50% back wages to the respondent-workman. While the award of the Industrial Tribunal directing reinstatement of the workman does not necessitate interference, in so far as the award directed the petitioner herein to pay 50% back wages to the respondent workman, it is but appropriate that the matter be remanded back to the Industrial Tribunal-cum-Labour Court, Visakhapatnam which shall examine whether the workman is entitled even to be paid 50% back wages taking into consideration the factors referred to in the judgment of the Supreme Court in J.K.Synthetics8. Since the dispute relates to the year 1995, and 13 years have elapsed since then, it is but appropriate that the Tribunal re-examines this matter and passes a fresh award at the earliest, in any event, not later than four months from the date of receipt of a copy of this order. The writ petition is, accordingly, disposed of. No order as to costs. ______________ 13-3-2008 asp [1] (2006) SCC (L&S) 473 [2] AIR 2007 SC 631 [3] AIR 2007 SC 288 [4] 2003(2) LLJ 1094 [5] 1996(1) LLJ 888 [6] (2003) 4 SCC 27 [7] 1996(1) LLJ 888 [8] (2007)2 SCC 433