ORDER
Subhash B. Adi, J.
1. This Writ Petition is directed against the award dated 7th April 2006 in K.I.D.Nos. 247, 257, 258 and 259/2004 on the file of the Labour Court, Gulbarga,
2. Case of the petitioners is that, in 1986, the Government of India propounded the national policy for education and introduced a project named as 'Mahila Samakhya' to translate the goals of national policy on education and programme of action pursuant thereto for educating women in rural areas particularly women from socially and economically marginalized groups to provide educational opportunities for women with a view to provide women and adolescent girls with a necessary support, structure and informal learning of (SIC) environment to create an opportunity for education and environmental awareness. In this connection, the Government of India, Ministry of Human Resources Development established a programme called 'Manila Samakhya' in the year 1989 with an assistance from Dutch Government. The object of the programme is to educate women for their better environment.
3. On 27.1.1989, the State of Karnataka registered a Manila Samakhya Society and from 1993 onwards, services of the respondents were engaged as educators, known as 'Sahayoginis' under Samakhya programme and their engagement was purely temporary on the basis of honorarium. Thereafter, from amongst Sahayoginis, Cluster Resource Persons were selected (in short 'C.R.Ps.') by giving an opportunity to Sahayoginis to get selected as C.R.Ps. Some of the Sahayoginis were selected. The respondents, who were either did not offer themselves to become CRPs or did not get selected, were advised that their engagement stands terminated at the end of 30th September 2004.
4. Respondents as against the said termination raised a dispute under Section 10-4A of the Industrial Disputes Act (hereinafter referred to as 'the Act') interalia alleging that, they were illegally terminated from their service as Sahayoginis that, they were carrying out the activities of creating awareness among the rural women at large by organizing women into groups to create socio-economic and political awareness and the said activities were spread over in Karnataka. It is alleged that, the activities of the petitioner No. 2 were confined to Gulbarga district and that the second petitioner had allotted 10 villages for each Sabayogini, that, they were appointed by the petitioner No. 2 and since the date of appointment, they have been working as Sahayoginis and they were paid Rs. 1,500/- per month and Rs. 300/- towards travelling allowance. The respondents alleged that they requested for increase in the wages and from June to August 2004, they were paid Rs. 2,100/- per month by way of wages and Rs. 450/- towards the travelling allowance. It is also alleged that, under the garb of increasing the wages and promoting the respondents, some of the respondents' signatures were taken on many papers and their services were terminated and alleged that the termination order dated 30th September 2004, amounts to retrenchment and claimed that they are entitled for reinstatement with backwages and continuity of service.
5. The said claim was resisted by the petitioners interalia admitting that the respondents were engaged as Sahayoginis in connection with the programme and their service is voluntary service and they are not the workmen and they were only paid the honorarium and their engagement was temporary and there is no termination as such and in order to reduce the voluntary services of the Sahayoginis, selection was made to select C.R.Ps., based on capacity to undertake the work, experience and educational qualification and those who were selected have been engaged as CRPs. Out of 12 Sahayoginis, 4 persons have been selected as CRPs since the other six persons did not qualify, they were not selected and there is no termination of services. It is specifically informed the respondents at the time of their appointment as Sahayoginis, that their appointment is temporary and for the purpose of a project.
6. The Labour Court framed four issues and held that the respondents are workmen, their services were engaged in relation to the activities of an industry, and they have completed statutory period of 240 days' working and their termination amounts to retrenchment. Based on the evidence led by the parties, the Labour Court found that, the respondents had acquired right by completing 240 days continuous working in the preceding year of the termination, their services cannot be retrenched merely on the ground that the employer has got right to retrench and the same is violative of Section 25-F of the Act and held that the termination of the services of the respondents without notice is a clear indication of termination of services by employer as and when desired and further held that, is a clear case of retrenchment and does not fall under the exception under Section 2(oo)(bb) of the Act, After holding that the respondents are the workmen and their termination is illegal, the Labour Court directed the petitioners to reinstate the respondents -workmen within three months and their services be treated as continued service for all practical purposes from the date of termination till the actual reinstatement and for payment of 50% backwages for a period from the date of retrenchment till expiry of three months after the award comes into force on its publication and thereafter, for payment of full backwages till they actually reinstated into service.
7. Sri P.S. Rajagopal, learned Counsel appearing for the petitioners submitted that, the appointment of the respondents is temporary and on honorary basis and they were paid Rs. 1,000/-honorarium payment and Rs. 300/- towards travelling allowance. This appointment was for a project, which is valid for a period of 5 years and the said project comes to an end on 31.3.2007, The project is named as 'Mahila Samakhya Project' based on national policy on education. He submitted that, in Karnataka, the project was registered on 27.1.1989. Thereafter in order to reduce the voluntary services of the Sahayoginis, selection was made from amongst the Sahayoginis to be called as CRPs and in this regard, interviews were held on 30th June 2004, 1st July 2004 and 2nd July 2004. Based on the interviews, 4 out of 12 Sahayoginis were selected as CRPs and there is no termination. It is only the persons, who have been selected, were kept as CRPs and the remaining are not selected either on the ground that they did not participate or they did not qualify and it is not a case of termination from the service.
8. Though there is no termination of services, still one month's notice and one month's wages in lieu of one month's notice + leave encashment was given to the respondents. He also submitted that this is not a case of retrenchment on the ground of completion of 240 days continuous service. He also submitted that, once the project comes to an end, there is no obligation for the petitioners to continue the services of the respondents as the post gets abolished. He also submitted that in terms of the order of appointment, the respondents were made known that their engagement is temporary for a project and does not confer any right to continue in service. He referred to Section 2 Sub-section (oo) Clause (bb) of the Act, which reads as under:
2(oo)(bb) '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) ...
(b) ...
(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;
and submitted that in case of non-renewal of contract of employment by the employer on its expiry, the workmen will not get right to continue in service, nor it amounts to retrenchment.
9. He also submitted that, said contract provides for termination of the services and in exercise of said term, if the service of the workman is terminated, it will not amount to retrenchment. In this regard, he relied on the judgments reported in : (1994)ILLJ597SC in the matter of M. Venugopal v. Divisional Manager, L.I.C. of India, Machilipatnam, A.P. and Anr. and submitted that in terms of the order of appointment and the stipulation of conditions therein, the respondent is bound by the stipulation and even if the provisions of the I.D. Act are applicable, the termination of services of the workmen under the contract does not amount to retrenchment and submitted that, by virtue of insertion of Clause (bb) in Section 2(oo), the termination of service is as a result of contract of employment, having been terminated under the stipulations specifically provided, the question of compliance of Section 25-F does not arise nor it vitiates the termination.
10. He also referred to a decision reported in : (2006)IIILLJ502SC in the matter of Municipal Council, Samrala v. Sukhwinder Kaur and submitted that in case of a temporary appointment, where no period is fixed for the contract of the employment, or where a stipulation in the contract provides power to dismiss the workmen without issuing notice, the provisions of Section 25-F of the Act are not applicable.
11. He also relied on a judgment reported in : (1997)11SCC521 in the matter of Escorts Limited v. Presiding Officer and Anr. and submitted that if the terms of appointment enabling the employer to terminate the service at any stage, without assigning any reason, such termination of service under the said terms of the contract of employment, even if effected before the expiry of the specified period, would not amount to retrenchment.
12. He also relied on the judgment reported in : (2003)IILLJ1094SC in the matter of Surendra Kumar Sharma v. Vikas Adhikari and Anr. and submitted that, posts temporarily created for fulfilling the needs of a particular project or scheme limited in duration comes to an end either because the need was fulfilled or the project had become abandoned wholly or partially for want of funds, the employer cannot be directed to continue the employment of such employee, as otherwise it would amount to requisition for creation of posts, though not required by the employer and funding such posts though the employer did not have funds available for the purpose.
13. He also relied on another judgment reported in : (1999)IILLJ187SC in the matter of Rajendra and Ors. v. State of Rajasthan and Ors. and submitted that the posts temporarily created for fulfilling the needs of a particular project or scheme comes to an end on account of the need for the project itself having come to an end either because the project was fulfilled or had to be abandoned wholly or partially.
14. He submitted that, in case of an employment under a scheme or for a project, such employment comes to an end by the end of completion of the project or a scheme. In case, the scheme is abandoned or project is closed, the employment also comes to an end. Even in case of temporary appointment, the appointment would also comes to an end by the expiry of the term. Further, if the contract of employment stipulates for termination of service and on termination of the services, the contract of employment also comes to an end, in such circumstances, the termination does not amount to retrenchment. In this regard, he relied on the order of appointment issued to the respondent, which was produced at Annexure-K dated 1.7.1993 and pointed out that the engagement of service of respondents is a voluntary service accepted by the respondents and the said service is temporary and all the respondents were made known that, their services would be terminated without giving any reason and they were only paid honorarium. In this regard, he also relied on the scheme called 'Manila Samakhya' (Education for Women's Equality - Tenth Plan Document) and pointed out that the object of the scheme and purpose for which the services, of the respondents were engaged and submitted that respondents were engaged to function as Sahayoginis and in the scheme itself at Clause 3.2.2, it is made clear that Sahayoginis will be withdrawn in a phased manner and federations and stronger Sanghas will take over many of the functions that had been played by the Sahayoginis. Referring to the scheme, he submitted that since it is a project, which envisaged for educating the women and also enhancing their knowledge and information in the field of environment and uplifting the rural women socially, economically and politically and in this regard, the voluntary services of Sahayoginis were temporarily engaged and from amongst the Sahayoginis some were selected as CRPs and there is no question of termination of services of the respondents, as they were not appointed, but they were voluntarily serving on honorarium.
15. Nextly he referred to Section 25-F of the Act, which reads as under:
25-F. 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.
He submitted that, in case of retrenchment of a workman, who is in continuous service for not less than one year, is required to be given one month's notice in writing by giving the reason for retrenchment or has to be paid one month's wages in lieu of such notice. Though there is 110 need for issuing notice under the terms of the appointment order, still in this case, one month's notice has been given, one month's salary in lieu of the notice is also paid and further, the respondents were paid legal loss. He further submitted that, even otherwise also, the workmen have been issued with notice and paid one month's wages, as such, he submitted that the Labour Court was not justified in passing the award.
16. He also pointed out from the findings of the Labour Court that the Labour Court, though it refers to the appointment letter and notices, that services can be terminated at any time without notice, but it interprets the same in the manner, to hold that the employer's right to terminate as and when he desires cannot be termed as a termination in the exception nature and holds that the recital contained in the appointment order does not bring within the provisions of Section 2(oo)(bb) of the Act He also pointed out from the award of the Labour Court that, in case of an appointment for a stipulated period, the workman does not get right to claim retrenchment compensation. However, wrongly interpreting the appointment, order, the Labour Court has held that, it does not contain any such specified term or stipulation. He further pointed out from the award of the Labour Court that, the Labour Court finds that the order of appointment stipulates that, any time the services of the workman could be disengaged without any reason, but it holds that it is nothing but the right of the employer to retrench the workman and nothing more and further holds that once the right is accrued to the workman, the provisions of Section 25-F are attracted.
17. Sri. M.C. Narasimhan, learned Senior Counsel appearing for respondents submitted that Section 2(oo)(bb) of the Act is an exception to Section 2(oo) and it cannot be read in isolation and it cannot defeat the object of main provision namely, Section 2(oo), He further submitted that the contract referred to under Section 2(oo)(bb) is a term contract and only in such contract, there must be a stipulation, providing for termination of services of the workman. He submitted that there is no such term contract of employment in this case. He also referred to Section 25-F of the Act and submitted that Section 25-F requires one month's notice and in lieu of one month's notice, wages for a month and in case of illegal termination, the order of termination is required to be set aside. Interpreting Section 2(oo) Clause (bb), learned Senior Counsel submitted that, any termination under the contract by an employed is a retrenchment under Clause 2(oo) and as such, even a stipulation under the contract providing for termination does not confer any right on the employer to terminate the services of the workman without complying with the requirement of Section 25-F of the Act.
18. He relied on the very same judgment namely, Municipal Council, Samrala v. Sukhwinder Kaur (supra) and submitted that, it is the case where the appointment order itself specifies that, the appointment is a temporary appointment and also made known that, the workman has no right against the post and further submitted that under the nature of the said appointment order, the Apex Court has taken a view. Further, he submitted that the said decision is based on a decision reported in (2006) 3 SCC 81 in the case of Municipal Council, Samrala v. Raj Kumar and also a decision reported in 2006 SCC (L&S;) 455 in the matter of Haryana State Agricultural Marketing Board v. Subhash Chand and Anr. The said decision is based on the Raj Kumar's case and not applicable to the circumstances of this case, he also relied on a decision reported in : (2003)IILLJ359SC in the matter of S.M. Nilajkar and Ors. v. Telecom District Manager, Karnataka and submitted that, in the said case, the Apex Court has held that the contract of employment consciously entered into by the workman with the employer would result in a notice to the workman on the date of commencement of the employment itself, and that his employment is short-lived and as per the terms of the contract, the same was liable to be terminated on the expiry of the contract and the scheme or the project coming to an end and workman may not, therefore, complain that by the act of the employer, his employment came to an end. He also relied on a decision in Municipal Council, Samrala v. Raj Kumar (supra) and submitted that facts of the said case are entirely different as the workman was engaged in a post which had become vacant on account of two of the employees were on leave and it was deemed necessary to engage the services of the said workmen. Under the said facts and circumstances, the workman was aware of the fact that, his employment is temporary and short-lived and further pointed out that the Apex Court itself at para-14 has held that, the decision of the Apex 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 Act will have no application. Referring to para-14, he submitted that unless the workman is made known that his employment is short-lived, the employer, cannot terminate the services of the workman.
19. He also relied on another decision reported in 2006 SCC (L & S) page 455 in the case of Haryana State Agricultural Marketing Board (supra) and submitted that the application of the provisions of Chapter V-A of the Act is dependant on the issue, as to whether the order of retrenchment comes within the purview of Section 2(oo)(bb) of the Act or not. He further relied on S.M. Nilajkar's case (supra) and also a decision reported in : (2006)IILLJ744SC in the case of Haryana State Electronics Development Corporation Limited v. Mamni and submitted that in case of termination of services at the end of the period, and reappointment after a gap of one day, such action of termination and repeated reappointment again and again for a period of about one-and-a-half years, in such cases, the Apex Court has held that it is not bonafide method and would defeat the object of the Act. Strongly relying on this decision, he submitted that it is not a rule that, in case of employment for a term does not always empower the employer to terminate the services without complying with the requirement of Section 25-F of the Act.
20. He referred to the evidence of MW-1 in the cross-examination and pointed out that, MW-1 has stated that the respondents have worked for 240 days continuously in a year preceding the termination and further submitted that the order of appointment is not served on the respondents - workmen and does not contain any term and he also submitted that the appointment is not for a scheme.
21. In this regard, he relied on a judgment reported in 2000-II-LLJ Page 1410 in the matter of Executive Engineer, C.P.W.D., Indore v. Madhukar Purshottam Kolharkar and Anr. and submitted that the term must be fixed under the contract of employment. He also relied on a decision reported in 1990-1-LLJ page 443 in the matter of Balbir Singh v. Kurukshetra Central Coop.Bank Limited and Anr. and submitted that the provisions of Section 2(oo)(bb) cannot be read narrowly to empower the unscrupulous employer to send the employees. Even in case of termination of the employment on the expiry of the term requires to be examined and in this regard, he relied on a decision reported in 1990 LAB.I.C. Page 100 in the matter of Dilip Hanumantrao Shirke and Ors. v. Zilla Parishad, Yavatmal and Ors. and submitted that, the scope of interference by this Court is very limited unless an error of law is pointed out, the interference is impermissible. In this regard, he relied on a judgment reported in 1990-II-LLJ page 577 in the matter of R. Sreenivasa Rao v. Labour Court, Hyderabad and Anr.
22. By referring to these decisions, he submitted that all the respondents have worked for more than 240 days continuously in a year is an admitted fact, they are the workmen and the petitioners being an industry, their termination being illegal and in violation of the provisions of Section 2(oo), the Tribunal on consideration of the evidence has found that the respondents are entitled for reinstatement and consequential benefits. The award being passed on the basis of the evidence led by both the parties and there being no error of law having been pointed out, the award does not call for interference at the hands of this Court.
23. In the light of the rival contentions, the points that arise for consideration are:
1. Whether a workman, who has worked for 240 days under a scheme or a temporary appointment or is made known that his employment is short-lived or if the stipulation provides for termination of contract, is entitled for benefit of Section 25-F of the Act?
2. Whether the same amounts to retrenchment under Section 2(oo) of the Act?
24. Facts leading to this case are that, a national policy for providing education to rural women under the project known as 'Manila Samakhya' project with aims and object of educating rural women, who are socially and economically backward, was framed by the Central Government and in this regard, societies were registered in respective States. One such society was also registered in Karnataka called 'Mahila Samakhya Karnataka'. The second petitioner is a District Programme Coordinator for Gulbarga. In the light of the registration of the society in 1989, he engaged the services of respondents as Sahayoginis. The object of the Sahayoginis, who were given 10 villages each to give educational opportunity to women under the national policy on education 1986, as a pilot project in Karnataka, the programme was implemented in 10 districts. In this regard, a scheme provided for engaging the services of Sahayoginis, who will gain experience and will become specialists and facilitators for mobilizing, providing issue based knowledge inputs and motivate, support and guide the rural women and organize women into Sanghas coordinating in 10 villages. In terms of the scheme, the respondents were engaged as per appointment order dated 1.7.1993, wherein it is decided to take the services of the respondents as Sahayoginis for the benefit of the society. In the said appointment letter, it is mentioned:
It is also recited in the said letter of appointment that, their services are voluntary services and is a social service. This appointment letter is disputed by the respondents. However, on the said appointment letter, signature of the workman is also taken. These appointment letters are exhibited before the Labour Court and marked in the evidence as Exs.M2 to M5. It is found that on each of these appointment letters, the signatures of the respondents - workmen is found, even on Ex.M5. In this regard, in the claim petition, at para-6 it is stated that:
Under the garb of increasing the wages and promoting the petitioners some signatures of the petitioners were taken on many papers and some times false interview like proceedings were also taken for the alleged promotion wider duress....
No other evidence is produced by the respondents to show that their services were engaged under any other contract The appointment letter discloses that, their appointment is temporary and the petitioners have right to terminate the services of the respondents at any time without giving any reason. The appointment letter also shows that this is a voluntary service as social work and for that, Rs. 1000/- honorarium and Rs. 300/-travelling allowance is paid. Mahila Samakhya scheme is also produced at Ex.M1 and the scheme shows that, it is valid for a period from 1.1.2003 to 31.12.2007 as per Annexure-1 to the said scheme. Under Clause 3.2.2 of the scheme, it is also mentioned that, Sahayoginis will be withdrawn in a phased manner and federations and stronger Sanghas will take over many of the functions, that are being played by the Sahayoginis. It clearly shows that, on termination, the job of Sahayoginis will come to an end.
25. From the reading of the terms of the appointment letter and the scheme, it is clear that, for fulfilment of the scheme of organizing the rural women, forming the groups, providing education to the socially end economically backward women by giving information as to the better environment and uplifting the rural women socially, economically and politically. The work of the Sahayoginis under the scheme appears to be a voluntary work on honorarium payment. Fn the evidence, the respondents have denied that they were served with the appointment order, but it is admitted that the respondents have filed an application for appointment and the fact that the signatures of the respondents are found is also not disputed. This aspect of the matter is concerned, the Labour Court has also proceeded, on the basis that, the appointment orders are issued and referring to appointment order, it has observed:. The appointment orders as per Exhibits-M2 to 5, 20 to 23 & 38 do not contain any specified period of service on expiry of which, it would come to an end to bring it within the first part of Clause (bb). No doubt there is recital in the said appointment order to the ef fact that the claimants could be disengaged at any time without giving any reason. It is nothing but a right of employer to retrench the workman and nothing more.
On this aspect of the matter, the Labour Court, which had the benefit of recording the evidence, has found that the appointment letters are issued.
26. Now the question that arises for consideration is, in the light of the scheme and also in the light of the appointment order, whether the respondents' services could be terminated without following the procedure prescribed under Section 25-F of the Act?
27. Learned Senior Counsel for the respondents had also relied on a judgment reported in 1998(1) LLJ page 1165 in the matter of Uptron India Limited v. Shammi Bhan and Anr. The bone of contention of the learned Senior Counsel relying on this judgment is that, in the absence of fixed term in the contract, the question of termination in pursuance of stipulation therein does not arise. In this regard, he had relied on paragraph-31 of the judgment and submitted that the contract of service not being for fixed period, there was no question of service being terminated on expiry of the contract. In the absence of fixed period, the termination of service of the petitioners would amount to retrenchment. The decision relied by the learned Senior Counsel for the respondents relates to absorption in the post and confirmation of the petitioner in that case and her service stood automatically terminated on account of her remaining absent without any leave application and in exercise of Clause-17 of the Certified Standing Order, the services were terminated. In this case, as per Annexure-K, which is an appointment letter wherein it is mentioned that the appointment itself Is temporary and on honorarium payment and can be terminated at any time and further, it is also mentioned that this is voluntary social service. Looking into the terms of the appointment, it is clear that, an appointment is for temporary and at any time, the services could be terminated. As such, on facts, the decision relied by the learned Senior Counsel for the respondents is not applicable.
28. The learned Senior Counsel relied on one more decision reported in 2000(2) LLJ 1410 in the matter of Executive Engineer, C.P.W.D., Indore v. Madhukar Purshottam Kolharkar and Anr. This also is a judgment where the Apex Court has held that, in the absence of fixed term in the older of appointments, the provisions of Section 2(oo)(bb) of the Industrial Disputes Act are not applicable. As observed above, since the nature of appointment being different, the said decision is also not applicable to the facts and circumstances of the present case.
29. In this regard, learned Counsel for the petitioners has relied on a decision reported in : [2002]SUPP5SCR573 in the matter of P.U. Joshi and Ors. v. Accountant General, Ahmbdabad and Ors. and pointed out that the conditions of service, government policy are exclusive discretionary jurisdiction of the State and they cannot be interfered. He relied on paragraph-10 of the said judgment and submitted that there is no right in any employee of the State to claim that the rules governing the conditions of his service should be forever same as one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even in existing service. Relying on this paragraph, learned Counsel submitted that policy of the Government in the matter of amending or altering the service condition is exclusive power of the State Government and it cannot be interfered with judicial review by the Tribunal or the Court.
30, He strongly relied on another judgment reported in : (2007)ILLJ236SC in the matter of State of Rajasthan v. Sarjeet Singh and Anr. and submitted that even in a scheme where appointment is made for fixed period, and appointments were continued even beyond fixed period till the completion of the scheme and thereafter, termination of service of the employee or the workman does not amount to retrenchment. He submitted that Apex Court in this case considered the earlier judgments of Municipal Council, Samrala v. Raj Kumar, S.M. Nilajkar v. Telecom District Manager, Haryana Agricultural Marketing Board and held that, even if the appointment is continued beyond the fixed period till the completion of scheme, it does not amount to retrenchment. However, the Supreme Court assuming that there is violation of Section 25-G and H of the Act has awarded Rs. 30,000/- in exercise of power under Article 142 of the Constitution of India.
31. Many judgments were cited by both the sides, on the question as to whether the services of the temporary employee or employee under contract, whose employment can be terminated at any point of time, could benefit to Section 25-F of the Act, The Apex Court in the judgment of SURENDRA KUMAR SHARMA's case (supra) at para-5 has held that:
5. ...when posts temporarily created for fulfilling the needs of a particular project or scheme limited in its duration come to an end because the need for the project comes to an end either because the need was fulfilled or the project had to be abandoned wholly or partially for want of funds, the employer cannot by a writ of mandamus be directed to continue employing such employees as have been dislodged, because such a direction would amount to requisition for creation of posts though not required by the employer and funding such posts though the employer did not have funds available for the purpose.
The decision of the Apex Court on this matter, clearly shows that, any appointment for a scheme or project, it will come to an end once the object of project is fulfilled or the project is abandoned for want of fund and no employer can be forced to continue the employment of a workman, despite the project is abandoned or closed or has come to an end. In this regard, the Apex Court in another decision in the case of S.M. Nilajkar (supra), has held at para-11 that;
11. ...the Government as a welfare State floats several schemes and projects generating employment opportunities, though they are short-lived. The objective is to meet the end of the moment. The benefit of such schemes and projects is that for the duration they exist, they provide employment and livelihood to such persons as would not have been able to secure the same but for such schemes or projects, If the workmen employed for fulfilling the need of such passing-phase projects or schemes were to become a liability on the employer State by too liberally interpreting the labour laws in favour of the workmen, then the same may well act as a disincentive to the State for floating such schemes and the State may opt to keep away from initiating such schemes and projects even in times of dire need, because it may feel that by opening the gates of welfare it would be letting in onerous obligations entailed upon it by extended application of the labour laws. Sub-Clause (bb) in the definition of retrenchment was introduced to take care of such like situations by the Industrial Disputes (Amendment) Act, 1984.
From the reading of para-11 of the said judgment, it is clear that the welfare schemes, which are brought in by the State for providing temporary employment under the scheme cannot be construed as confirming a permanent right in the workman to continue in service and the Apex Court has observed that, if such an employment is continued, it would be letting in onerous obligation entailed upon the State by extending the labour laws and in such event, the very object of the scheme would be defeated. The contract of employment consciously entered into by the workmen with the employer, would result a notice to the workmen on the date of commencement of the employment itself, that his employment was short-lived and as per the terms of the contract, the same was liable to be terminated on expiry of the contract or the scheme or the project coming to an end. If the contract of employment makes it clear that, the employment is short-lived, the workman does not get any right to seek continuance in the employment.
32. The Apex Court referring to the decision in the cases of Haryana State Electronics Development Corporation Limited v. Mamni (supra), Rajendra's case (supra) and S.M. Nilajkar's case (supra), in the decision reported in Municipal Council, Samrala v. Sukhwinder Kaur (supra) has held that although there is no fixed period of contract of employment, but if there exists a stipulation in the contract that the authority has power to dismiss the workmen from service without notice and in such cases also, the Apex Court observed that the workman has no right to seek continuance in the employment. The Apex Court in the decisions referred to above has consistently held that, if it is a temporary appointment, Clause (bb) of the Act is applicable, if it is an appointment for a scheme or a project, Clause (bb) is again attracted and even in case of the contract, which has no fixed period, the condition provides for termination of service without notice, and is a temporary engagement, it will not attract Section 2(oo), but it falls under Section 2(oo)(bb) of the Act.
33. In this case, the appointments, which are made for a particular scheme, cannot be disputed, as the respondents were engaged as Sahayoginis and Sahayoginis are appointed under the scheme under the policy of the Central Government, to provide education and information on various aspects to the rural women and for fulfillment of the said scheme, the services of the respondents were taken as Sahayoginis and the appointment order indicates that, their services are voluntary and is a social service and they are paid honorarium. It is also made clear that the appointment is short-lived by showing that at any time, their services can be withdrawn or terminated without notice. It is also mentioned that this appointment is temporary. If that is the position, as held by the Apex Court, the appointment, if it is temporary or if it is for a project, or if the appointment letter stipulates a right in the employer to terminate the services of the workman at any point of time without notice would fall under Clause (bb) and in such cases, the workman has no right to claim continuation of his employment.
34. It is argued by the learned Senior Counsel for the respondents that, Clause (bb) cannot be read in isolation as it is only an exception and it defeats the object of main section itself. He further submitted that, in all the contracts, there will be term of a contract, which provides for termination of the contract of employment and same cannot be read to mean that an employer can terminate the services of the workman at any point of time without following the procedure under Section 25-F of the Act, The operation of Clause (bb) is under different circumstances. In case of contract of employment, if the employer terminates the services without following Section 25-F of the Act, certainly Clause 2(oo) is attracted, but if the contract itself provides for termination of contract and the workman consciously accepts the appointment knowing full well that his appointment is short-lived, he cannot make a grievance that the termination amounts to retrenchment and this is supported by the view taken by the Apex Court in the judgment referred to above. It has to be endorsed that appointments made in view of exigency of situation without following the statutory provisions or without complying with Articles 14 and 16 of the Constitution of India, they are made for particular purpose and if such appointments are made with a clear indication that they are made in view of exigency, then the workman cannot claim that he has completed 240 days and thus, he is entitled for the benefit under Section 25-F of the Act, as otherwise it would defeat the very purpose of such engagement.
35. The second aspect of the matter as urged by the learned Senior Counsel for respondents is that, Section 2 Clause (oo) Sub-clause (bb) of the Act cannot be read narrowly as otherwise, it gives right to the unscrupulous employers to send the employment of a workman and the bonafides of such contract are required to be examined. No doubt, that depends on facts and circumstances of each case. But when a scheme is framed by the State Government or State under Article 12 of the Constitution of India, which envisages opportunity for engaging the services under a scheme and provides for an employment, the same cannot be treated on par with any other contract. If the contract does not provide for continuation of employment, the courts cannot extend the contract to provide an employment to the workman, as otherwise the object, of forming schemes would get frustrated. Though learned Senior Counsel relied on some of the decisions of the High Court and the Apex Court to show that bonafides of such contract are required to be gone into, no doubt, that if the contract of employment provides for particular term and by giving artificial break and repeated re-appointments are made only to deny the benefit of Section 25-P of the Act. In such cases, the bonafides of such contract can be gone info by the Court.
36. In the light of the facts and circumstances of the case, the appointment letter itself being clear as to the nature of the appointment, the respondents are well aware of the appointment being short-lived and being only temporary for a particular scheme, they cannot claim as a matter of right to continue in the said employment The Labour Court having noticed the fact that the appointment letter provides for termination of the services of the respondents, at any point of time without notice, still only on the ground that the respondents have put in 240 days and the light has accrued to them, the employer cannot terminate the services of the respondent in violation of the provisions of Section 25-F of the Act, in my view, is not a correct position in law. When the contract of employment or appointment is in pursuance of a scheme and when the appointment itself puts the workman on terms that his appointment is short-lived, it cannot be said that the employer has no right to terminate without fulfilling the requirement of Section 25-F of the Act.
37. Hence, in the light of the above discussion, the findings of the Labour Court that termination amounts to retrenchment is contrary to the well settled law inasmuch as the appointment being under the scheme and the appointment letter also specifically mentions that it is temporary appointment and at any point of time, the services could be terminated. In addition to this, looking at the scheme and the nature of appointment clearly indicates that it is a voluntary service. In such circumstances, not continuing the respondents in the said service, in my opinion, does not amount to retrenchment under Section 2(oo) of the Industrial Disputes Act. Hence, the findings of the Labour Court is illegal and contrary to the settled law.
Accordingly, the writ petition is allowed, The award dated 7th April 2006 in K.I.D.Nos. 247, 257, 258 and 259/2004 on the file of the Labour Court, Gulbarga is quashed. However, since the respondents were engaged as Sahayoginis and have been denied of the employment, I feel it appropriate to direct the petitioners to pay compensation of Rs. 30,000/- each.