N.K. Kapoor, J.
1.Appellant aggrieved by the award of the Labour Court and its affirmation by this Court has preferred this appeal.
2. Naresh Kumar, a Work-mistry, whose service had been dispensed with sought reference and so the Government of Haryana exercising its powers under Section 10(1)(c) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act') referred the dispute between the parties to a Labour Court for adjudication. Labour Court framed the following issues:
(1) Whether the impugned termination of services of the workman was invalid? O.P.W.
(2) Whether the reference is not tenable for the reasons stated in preliminary objections No. 1, 2 and 3 of the written statement? O.P.W.
(3) Relief.
3. Management contested the claim of the workman alleging that the same is not maintainable as the respondent-Corporation is not an industry nor the petitioner falls within the definition of a workman. Otherwise too, petitioner was appointed for a specific work and for a specific period and so his case is covered within the exception as contained in Sub-clause (bb) of Section 2(oo) of the Act. As per the case set up by the Management, Naresh Kumar was employed for a specific period and for a specific work from February 26, 1985 to December 25, 1987 and in between this period there were a number of breaks in his service and he also worked at different places as well. So, according to the management the workman cannot derive benefit of Section 25-F of the Act, rather his case falls within the exception as contained in Sub-clause (bb) of Section 2(oo) of the Act.
4. Labour Court after considering the evidence adduced and keeping in view the appointment letters issued from time to time came to the conclusion that he was not appointed against a specific job, and so the Court held that the Management has violated the provisions of Section 25-F of the Act. Labour Court further held that Sarvshri Satish, Sultan and Jai Singh, who were alleged to be juniors to the workman were retained by the Management. Specific reference was made to the statement of Shri V.K. Chakravarti, who did not specifically deny the assertion made by the workman that Sarvshri Satish, Sultan and Jai Singh, workmen, were juniors to him and had been retained in service. Issue No. 1 was, thus, decided in favour of the workman. The Labour Court further held that there is no substance in the plea of the Management that workman is covered by the exception (bb) of Section 2(oo) of the Act. Consequently, the workman was held entitled to reinstatement with continuity of service and full back wages.
5. Management challenged the award of the Labour Court by way of a writ petition. Award of the Labour Court was assailed on the ground that the same is illegal, perverse, against the provisions of the Act and decisions rendered by various Courts and so un-sustainable in law. To put it briefly, the Corporation urged that workman had been engaged for a specific job and for a specific period and so dispensing of such a workman does not amount to retrenchment as had been employed by three different establishments of the Corporation and that too for a specific project. So, on this account too, no such direction could be issued by the Labour Court to take him back in service as well as awarding him back wages.
6. Learned Single Judge on examining various contentions in the light of material on record found no substance and so dismissed the writ petition.
7. Once again the learned counsel for the appellant has pressed almost the same arguments which somehow did not find favour with the learned Single Judge. Counsel for the appellant once again made reference to the appointment letters issued by Ware-housing Corporation from time to time. Counsel drew the attention of the Court to the office order where respondent is shown to have been appointed as a Work-mistry at State Ware-housing Corporation on purely temporary ad hoc basis for a period of three months with effect from the date he joined his duties. According to the counsel each and every appointment letter issued by the appellant specifically stipulated that his appointment as a Work-mistry is on a temporary lad hoc basis and for a fixed period. According to the counsel, it has also come on record that on completion of construction work at one place, respondent's services were requisitioned for a similar work but at a different place each time. The office orders clearly bring out that respondent's appointment as Work-mistry was for a specific work and for a specific period. Dispensing with the services of such a workman on account of non-renewal of the contract of appointment per se falls within the exception as contemplated by Section 2(oo)(bb), conferring no right upon such a workman to avail it on the ground of non-compliance of Section 25-F and to consequential relief of reinstatement. The Labour Court as well as the learned Single Judge indeed has erred in law in not appreciating the aforesaid provisions of the Act. According to the counsel, in fact the various judicial pronouncements of the Apex Court clearly state that non-renewal of contract of employment of the workman confers no right upon him and so the judgment impugned deserves to be reversed. In support of his above contentions, counsel placed reliance upon the following decisions of the Apex Court:
(1) M. Venugopal v. The Divisional Manager, Life Insurance Corporation of India, Machilipatnam, Andhra Pradesh (1994-I-LLJ-597);
(2) Morinda Co-Op. Sugar Mills Ltd. v. Ram Kishan (1996-I-LLJ- 870) and
(3) State of Rajasthan and Ors. v. Rameshwar Lal Gahlot, (1996- I-LLJ-888).
Further arguing the counsel urged that the learned Single Judge has erred in law in holding that the establishments at Ladwa, Radaur and Kaul have no separate entity. According to the counsel the construction activities undertaken at these places were independent having no connection with one another merely for the reason that respondent has been asked to perform another such like job at pother establishment would not confer upon him any right to tag the earlier period so as to claim regularisation or raise a plea of Section 25-F of the Act. No doubt the various office orders had been issued by the Executive Engineer of the Ware-Housing Corporation yet bare reading of these orders reveal that respondent had been appointed for a specific period and for a specific work. In fact these orders clearly make mention of the place of his duty i.e. Ladwa, Radaur and Kaul. Apex Court in Isha Steel Treatment, Bombay v. Association of Engineering Workers, Bombay (1987-I-LLJ-427), held that when two units had separate location, had separate stores and maintain separate accounts and there being no rule or condition regarding inter- transferability of the workman there is no basis to hold that the two units are one and the same merely for the reason that the nature of the business carried on in them was the same. Counsel also drew support from the decision in Hindustan Steel Works Construction Limited v. Hindustan Steel Works Construction Limited Employees' Union, Hyderabad (1997-III-LLJ(Suppl)-1224)(SC).
8. Counsel for the respondent on the other hand argued that the Labour Court on considering the evidence adduced has come to the coning the evidence adduced has come to the conclusion that the termination of services of the workman were unjustified and contrary to mandate of the Act and, thus, held that the workman is entitled to reinstatement with back wages. The learned Single Judge too after examining the matter thread- bare (though not required) has affirmed the decision of the Labour Court by a well reasoned order. The learned Single Judge on considering the office orders annexed with the writ petition came to the conclusion that there is no mention in these office orders that workman had been appointed for a specific work. Similarly, there is no indication in these orders that on completion of a particular work the services of the workman shall be dispensed with. Learned counsel for the appellant has addressed the Court on factually wrong premises. Counsel further argued that the plea now sought to be raised by the appellant that each one of the places, namely, Ladwa, Radaur and Kaul were separate establishments of the Corporation did not find mention in the written statement filed before the Labour Court. Otherwise too, this plea is devoid of substance for the reason that each one of these appointment letters/office orders admittedly have been issued under the signatures of one Shri K.P. Gautam, Executive Engineer from the Head Office of the Ware-Housing Corporation at Chandigarh. Had there been any substance in this contention of the appellant that each one of the places mentioned above are separate industrial establishments, office orders/appointment letters would have been issued by officers manning the so called alleged, industrial establishments. According to the counsel, appointment for a specific period is merely a camouflage to deprive a workman of his legitimate right under the Act. Precisely for this reason Courts examine the documents minutely to find out the real purport of the appointment orders/office orders and thereafter grant the desired relief, if made out from the facts of a particular case. In the instant case the Labour Court has come to the conclusion that the termination of services of the workman were bad in law as persons junior to him have been retained in service. Even the learned Single Judge found no ground to differ with this conclusion of the Labour Court. Further to support this contention the counsel drew our attention to averments made by him in an application dated February 9, 1996 stating therein that vide gazette notification dated February 24, 1993 services of as many as 19 persons as Work-mistry were regularised by the Corporation. This by itself belies the assertion of the counsel for the appellant that raising of construction is not one of the activities of the Ware-Housing Corporation. In addition thereto, the counsel urged that similar matter came up for consideration in C.W.P. No. 4803 of 1991, a petition filed by the Ware-Housing Corporation challenging the order of the Labour Court for regularising the services of the workmen which was dismissed in limine by a Division Bench on April 3, 1991. To support the above contentions counsel placed reliance upon the following judgments:
(1) Haryana State Cooperative Supply and Marketing Federation v. State of Haryana 1997 (1) RSJ 133; and
(2) The Chief Administrator, Haryana Development Authority and Ors. v. Presiding Officer, Industrial Tribunal-cum-Labour Court, Rohtak, 1994 (2) 107 PLR 46.
9. Having heard the learned counsel for the parties and after considering the submissions in the light of decision given by the Labour Court and its affirmation by the learned Single Judge, we are of the view that appeal being devoid of merit deserves to be dismissed. Matter in controversy though lies within a very narrow compass has in fact been blown out of proportion by the various pleas advanced by the learned counsel for the appellant. Broad facts have been noticed i.e. respondent worked as Work- mistry from February 26, 1985 to December 3, 1985 at Ladwa and from January 4, 1986 to October 7, 1986 at Radaur and again from October 25, 1986 to December 25, 1987 at Kaul. Vide identical office orders, respondent-workman was appointed as a Work-mistry at State Ware-housing Ladwa, Radaur and Kaul. Initially the appointment was for a period of three months and was extended from time to time. These office orders are issued by Shri K.P. Gautam, Executive Engineer, Ware-housing Corporation, Chandigarh. So, each time the appointment has been made by the Executive Engineer of the Ware-Housing Corporation. One of the office orders reads as;
'Shri Naresh Kumar s/o Shri Baini Parshad is hereby appointed as Work Mistri at State Warehouse, Ladwa on purely temporary/ad hoc basis for a period of three months w.e.f. the date he reports for duty in the pay scale of Rs. 350-5-360/8-400/10-500 plus usual allowances under rules of the Corporation.
2. His services will be governed by the rules of the corporation and are liable to be terminated at any time without assigning any reason and without giving any notice.
3. If the offer is acceptable to him on the above terms and conditions of appointment he should report himself for duty to the SDE/JE State Warehouse, Ladwa immediately but not later than March 6, 1985 failing which the offer will be treated as cancelled.
A perusal of the office order shows that this appointment as a Work-mistry is not for a specific work. This office order also does not indicate that on completion of a work at a particular place his services shall be deemed to have been dispensed with. This being so, the factual assertion made by the counsel for the appellant that respondent had been appointed for a particular work and for a particular time is not borne out on perusal of these orders. There is also no evidence on record that it is only on completion of a particular work that his services have been dispensed with. Rather, there is evidence to the effect that though his services were dispensed with from December 25, 1987 work at Kaul continued for another few months.
10. Section 2(oo)(bb), reproduced hereunder is in the nature of exception:
'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-
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(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
Unless a clear case is made out in terms of Clause (bb) of Section 2(oo), the case of a workman is to be considered in the light of other relevant provisions of the Act, which stipulate certain conditions precedent to the retrenchment of a workman, procedure for retrenchment and his right to re-employment in certain eventualities. As per Section 25-F in case a workman has been in continuous service for a period not less than a year employer cannot retrench such a workman until the workman has been paid compensation at the time of retrenchment. Section 25-F further contemplates issuance of such a notice in the prescribed manner upon appropriate Government. Concededly, in the instant case there has been non-compliance of Section 25-F of the Act. Not only this, Labour Court as well as the learned Single Judge has come to the conclusion that in fact persons junior to the respondent have been retained in service.
11. Despite all this the learned counsel for the appellant yet with some amount of vehemence argued that as the primary purpose of the Corporation, as is clear from its nomenclature i.e. Haryana Ware-housing Corporation, construction activity does not lie within its ambit. It is a different matter that certain godowns are to be constructed for storing grains which is the primary duty of this Corporation and so on this account also no direction could be issued to the appellant to regularise the services of such workman i.e. a Work-mistry. Argument though attractive in abstract when tested in the light of factual material on record appears to be an argument of frustration.
12. Counsel for the respondent brought to our notice that Ware- Housing Corporation vide Gazette notification dated February 24, 1993 regularised the services of as many as 19 persons as Work- mistry. Some of the workmen whose services as work-mistry were ordered to be regularised in fact joined the Corporation in the year 1986 and 1987 whereas the respondent worked as Work-mistry in between February, 1985 to December, 1987. Since services of as many as 19 Work-mistry have been regularised vide notification dated February 24, 1993 it can be inferred that Corporation maintains a construction wing i.e. for raising fresh construction of godowns as well as for maintenance of its existing godowns.
13. Whether activities at various centres like Ladwa, Radaur, Kaul, Kurukshetra, Rohtak, Barwala, Sirsa, Panipat can be termed to be separate establishments of this Corporation is another point which has been pressed into service by the appellant. Section 2(ka) defines 'Industrial establishment or undertaking', which reads as:
'Industrial establishment or undertaking' means an establishment or undertaking in which any industry is carried on:
Provided that where several activities are carried on in an establishment or undertaking and only one or some of such activities is or are an industry or industries, then,
(a) if any unit of such establishment or undertaking carrying on any activity, being an industry, is severable from the other unit or units of such establishment or undertaking, such unit shall be deemed to be separate industrial establishment or undertaking;
(b) if the predominant activity or each of the predominant activities carried on in such establishment or undertaking or any unit thereof is an industry and the other activity or each of the other activities carried on in such establishment or undertaking or unit thereof is not severable from and is, for the purpose of carrying on, or aiding the carrying on of, such predominant activity or activities, the entire establishment or undertaking or, as the case may be, unit thereof shall be deemed to be an industrial establishment or undertaking;
Whether the construction activity of the Ware-Housing Corporation at the aforesaid different places can be termed to be a separate establishment can be answered on the material placed on record. Notification dated February 24, 1993 vide which the services of various Work-mistry working at various places like Sirsa, Kurukshetra, Panipat etc. were regularised concededly was issued by the Ware-Housing Corporation. Had it been a case of a separate establishment, separate notifications would have been issued by each one of the establishments. Otherwise too, a perusal of office orders regarding appointment of the workman and even the office order pertaining to the post-facto sanction accorded to the appointment of a workman have been issued by one and the same person Shri K.P. Gautam, Executive Engineer, Ware-Housing Corporation, Chandigarh. Otherwise too, no material has been placed by the Corporation before the Labour Court that each one of the activities at various centres of the Corporation have an identity of their own.
14. The judgments relied upon by the appellant have no applicability to facts of the present case. All the same reference is being made in brief to the facts of the case and the ratio of the judgment.
15. In M. Venugopal's case (supra) the Apex Court while examining Regulation 14 of Life Insurance Corporation of India (Staff) Regulations, 1960 held that Regulation 14(4) and Clauses 10 and 11 of the order of appointment taken together would be deemed to be stipulations in the contract of employment. Thus, any termination in case in conformity with the aforesaid Regulation 14 would not amount to retrenchment within the meaning of Section 2(oo) having covered by exception (bb). Court in the aforesaid case held that the period of probation of the appellant was extended for another period of one year during which time the appellant could not transact the target business as was expected of him, his termination was in conformity with the appointment order. The Court, thus, held that appellants' services having been terminated within the period of probation the same are not liable to be interfered with. Consequently, the appeal was dismissed.
16. Similarly, in Morinda Co-op Sugar Mills Ltd.'s case (supra), the Court after noticing that the job being of a seasonal work, the cessation of same does not amount to retrenchment of a workman. According to the Apex Court such a case will fall within the ambit of Section 2(oo)(bb) of the Act.
17. Similarly, in State of Rajasthan's case (supra) the Court after scrutinizing the appointment order held that as he had been appointed for three months (though continued for over 240 days), termination order being in terms of letter of appointment is saved by Clause (bb) of Section 2(oo). Here in the instant case it has been found by the Labour Court that each time the services of the respondents had been extended. Not only this, time and again he has been asked to perform a similar job, though at another place by the Corporation. Since Clause (bb) of Section 2(oo) is in the nature of exception, a person raising such a plea has to specifically prove before debarring such a workman of his other rights in terms of the Act.
18. Rather, the facts of the present case are somewhat similar to the facts in Haryana State Cooperative Supply and Marketing Federation's case (supra). There the Court held that the initial appointment though for fixed period was extended time and again but with notional break and so the Court held the same to be a case of unfair labour practice.
19. We, thus, find no infirmity in the award of the Labour Court, which has been affirmed by the learned Single Judge.
20. No other point has been pressed.