Case: Gangadhar Pillai Vs. M/S. Siemens Ltd

2. Respondent has its own Engineering and Field Service department which undertakes jobs of industrial project installation, erection, commissioning of electrical/ electronic equipments which are supplied by it or the same are directly brought by its clients at various projects/ sites as per their requirements.3. The services of Respondent are utilized for the aforesaid work as a contractor which is a project/ site work required to be completed within the stipulated period, time and quality being the essence of the contract entered into by and between the parties.4. Respondent used to engage temporary personnel in the category of skilled, semi-skilled and unskilled workers. Appellant had been appointed by Respondent on temporary basis for duration of the project/ site work and on completion thereof his services used to be terminated.5. Indisputably, Appellant used to be employed almost on a regular basis since 1978. His services were availed by Respondent not only for its various projects in India but also in Iraq.6. Procedure followed for availing the services of Appellant by Respondent had been that whenever such contract was obtained and project work started at the instance of the Head Office, a telegram used to be sent to him for availing his services whereupon he was asked to join the site office. Appointment letters used to be issued by the said office were in a prescribed proforma, the relevant portion from a sample copy whereof reads asOF APPOINTMENT FOR TEMPORARY PERSONNELName : Mrs. R. Gangadharan PillaiRoll No. : 133Local Address: : Room No. 148/4, IndhiraNagar, Chambur, Bombay-74Permanent Address: Saraswati Vilasm EzhlconP.O. Anitose, KeralaDate of Birth : 22 yearsConsolidated salary/Wages per month : Rs. 200/-Date of Joining : 22.5.78Type of Employment: HelperDear Sir,We have pleasure in appointing you on the terms mentioned above and conditions stipulatedservices are required for execution of erection job at F.C.-1 on purely temporary basis for a period of Three month (s) from 22.5.78 to 21.8.78, at the expiry of which your appointment will automatically stand terminated without any notice, unless the period of appointment is extended in writing. During the temporary period of your service either party is at liberty to terminate the appointment without any notice and/ or assigning any cause or any compensation in lieuA declaration used to be given by the employee concerned that the contents thereof had been explained to him and upon understanding the same he used to put his signature.8. Before us, a chart has been filed to show that Appellant had worked for as little as 4 days in a project upto 365 days in a year.9. It, however, appears that he was temporarily appointed for different projects at Rourkela Steel Plant, details whereof are as under:10. The services of Appellant came to an end on 10.5.2000. He filed a complaint petition before the Industrial Tribunal contending that Respondent herein has resorted to unfair labour practice within the meaning of Item No. 6 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short "the Act"). Before the Industrial Tribunal, the parties adduced their respective evidences.11. In his deposition, Appellant contended that he had regularly been working in various projects of Respondent. It was contended that the services of personnel junior to him had been regularized and despite the fact that in many years he had worked for 240 days, he used to be appointed for temporary periods. According to him, the very fact that he had been working continuously since 1978 is itself an indicator to the fact that the job was perennial in nature.12. The Industrial Tribunal by an award dated 4.8.2004, however,as on this date, the Complainant has not been in the employment of the Respondent. Therefore, no question arises of giving any direction to the Respondent company to confer any status and privileges of permanent employee on the Complainant. Besides if the Complainant has miserably failed to prove that the break in two appointments of the Complainant was "artificial break". The appointment letter placed on file manifest that the engagement of the Complainant was for a specific period as mentioned therein. Therefore, in my considered view, the substantial controversy emerging from the instant complaint has been in respect of alleged illegality on the part of Respondent company in terminating his services from 10.05.It further came to the conclusion that the substantial controversy revolved round the termination of Appellants services on 10.5.2000 and, thus, the same is required to be considered in terms of Item 1 of Schedule IV of the Act and not under Item 9 of Schedule IV thereof.It wasmay observe that the Complainant could have taken recourse to section 32 of the M.R.T.U. & P.U.L.P Act, to make prayer before this Court to decide the controversy pertaining to his alleged illegal termination of service dated 10.05.2000, had his services been terminated by the Respondent company pending the complaint under items 5,6 and 9 of Schedule IV for redressal of his grievances of giving permanency in the employment. However, admittedly the Complainant has approached this Court under said items of unfair labour practice, praying for permanency after termination of his services w.e.f. 10.05.2000. I, therefore, find the instant complaint being highly unsustainable as I find the substantial controversy in respect of admitted termination of his services by the Respondent w.e.f. 10.05.2000 for which a special forum viz. Labour Court has been provided under the M.R.T.U. & P.U.L.P. Act.A writ petition was filed by Appellant aggrieved by and dissatisfied therewith. The said writ petition was also dismissed by a learned Single Judge by a judgment and order dated 8th December, 2004is well settled by a catena of decisions of this Court as well as of the Apex Court that the project related employees cannot as a matter of right, demand any status and privileges of permanent employee. Considering the same merely because the Petitioner has been engaged from time to time in relation to the projects undertaken by the Respondent Company, no fault can be found in the impugned order holding that there was no unfair labour practice on account of such employment and non grant of status and privileges of permanent employee to theA Division Bench of the High Court in an intra-court appeal refused to interfere with the judgment of the learned Single Judgea reasoned order followed thereafter. The learned Judge of the Industrial Court came to the conclusion that the unfair labour practices, as alleged by the complainant present appellant, are not committed. The finding on the issue is given on appreciation of the evidence by the learned Industrial Court. After giving such finding, in paragraph 13 the learned Industrial Judge has observed that factually the services of the appellant were terminated on 10.5.2000 and, therefore, unless he seeks and gets reinstatement to the job, he again complained of an unfair labour practice because the unfair labour practice committed during the course of the employment. The observations in regard to jurisdiction, therefore, were completely ancillary, and the learned Industrial Judge gave a finding that the commission regarding unfair labour practices was not proved. This order was challenged before the learned Single Judge of this Court and the learned Judge, on appreciation of the contentions raised, rejected the writ petition. The learned Single Judge had analysed the order passed by the Industrial Court and has observed as under:-"The Industrial Court, after hearing the parties on analysis of the materials on record while dismissing the complaint, has held that what has been reiterated in the complaint was that the complainant was engaged at various sites of the respondents after giving artificial breaks in the service.Then, the learned Single Judge has given a finding that in such circumstances, there is no question of adoption of an unfair labour practice and, therefore, declined to interfere under Article 227 of the Constitution. That being so, the Letters Patent Appeal, obviously, is not tenable. Even otherwise, we see no fault with the order impugned"

Reasoning: 26. A finding of fact has been arrived at, keeping in view the nature of engagement offered to Appellant by Respondent, by the Tribunal. The burden to prove that Respondent resorted to unfair labour practice indisputably was on the workman. There had been breaks in service but then it has rightly been held that the same were not artificial ones. Requirement to employ employees on a temporary basis is writ large on the face of the nature of the project undertaken by Respondent. There was nothing on record to show that it had been getting contract on regular basis. We have perused the charts filed by the parties herein wherefrom it appears that the contract awarded in favour of Respondent by its various clients had not only been in different parts of the country but also outside the country. It has also not been disputed before us that although the name of Appellant used to be recommended by the Head Office of Respondent but for employing him, a telegram used to be sent from the site office, in response whereto he would report at the place specified in the telegram and would be offered appointment in the prescribed proforma as noticed supra.27. The period of employment had all along been commensurate with the period of work undertaken by Respondent under the respective contracts. It may be a small contract or it may be a big one. Period of contract in each case was indeed bound to be different. Each site office of Respondent Company is also a separate establishment.28. It has furthermore not been denied or disputed that services of the employees engaged on such terms would come to an end on completion of the period of contract. Such retrenchment would come within the purview of Section 2(oo)(bb) of the Industrial Disputes Act. Once the period of contract was fixed and the same was done keeping in view the nature of job, it cannot be said that the act of the employer in terminating the services of Appellant was actuated by any malice. Such an act on the part of the employer cannot be said to have been resorted to for defrauding an employee. The object of such temporary employment was bona fide and not to deprive the concerned employee from the benefit of a permanent status. We, having regard to the fact situation obtaining herein, cannot infer that the findings of the Tribunal as also the learned Single Judge of the High Court were manifestly erroneous warranting exercise of our extraordinary jurisdiction under Article 136 of the Constitution of India.29. It is not the law that on completion of 240 days of continuous service in a year, the concerned employee becomes entitled to for regularization of his services and/ or permanent status. The concept of 240 days in a year was introduced in the industrial law for a definite purpose. Under the Industrial Disputes Act, 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 a violation of the said provision takes place, termination of services of the employee 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.We, therefore, do not find any reason to differ with the findings of the High Court.