MUNICIPAL COUNCIL, SAMRALAversusSUKHWINDER KAUR

                      MUNICIPAL COUNCIL, SAMRALA                                  A
                                        v.
                             SUKHWJNDER KAUR

                               AUGUST 8, 2006

                [S.B. SINHA AND DAL VEER BHANDARl, JJ.]                           B


          Industrial Disputes Act, 1947-Sections 2(oo)(bb) and 25F-Appointment
•   with power to dismiss without any notice-Termination of employee without
    complying with Section 25F-Validity of-Held-Termination valid-Section         C
    2(oo)(bb) of the Act attracted-Employee was aware that her services could
    be terminated without notice and accepted terms and conditions of offer of
    appointments without any demur.

          Respondent was appointed as clerk by appellant, a municipal council,
    vide an office order which inter alia stated that her appointment was on      D
    contract hasis, purely temporary and Executive Officer had the powers
    to dismiss her without issuing any notice. On similar terms, she worked
    for different periods. On her services being terminated, an industrial
    dispute was raised. Labour Court held that her termination was not in
    conformity with the provisions of Section 25-F of the Industrial Disputes
    act, 1947 and directed her reinstatement with continuity of service and       E
    back wages. Writ petition of appellant against this before High Court was
    dismissed rejecting their contention that the termination of the respondent
    was in accordance with Section 2( oo )(bb) of the Act and provisions of
    Section 25-F. thereof were not attracted. Hence the present appeal.

         Disposing of the appeal, the court                                       F

          HELD: I. Section 2 (oo)(bb) of the Industrial Disputes Act is
    attracted to\the facts and circumstances of this case. 1384-El

          2. The respondent, within a span of about 18 months, was appointed      G
    thrice and disengaged thrice. She was appointed on a contractual hasis.
    The appointments were temporary ones. She was aware that her service
    could be terminated without notice. She accepted the terms and conditions
    of the said offers of appointments without any demur. 1384-A-BJ

                                       381                                        H
    382                     SUPREME COURT REPORTS [:.1006] SUPP. 4 S.C.R.

A        Municipal Council, Samra/a v. Raj Kumar, 120061 3 SCC 81 and
    Haryana State Agricultural Marketing Board v. Subhash Chand and Anr.,
    (2006) 2 SCALE, 614, relied on.
        S. M. Nilajkar and Ors. v. Telecom District Manager, Karnataka, (2003]
    4 sec 27, referred to.
B         3. There was no fixed period of contract of employment between the
    employer and the workman concerned and thus, there is no question of
    its renewal on its expiry. ]384-D-El

         4. The High Court did not consider the question as to whtther the
C   appellant had any vacancy in respect of the post. (386-Hl

         State of MP. and Ors. v. Arjun/al Rajak, (2006) 2 SCALE 610, Nagar
    Mahapalika (Now Municipal Corpn.) v. State of U.P. and Ors., (2006) S
    SCALE 145 and Haryana State Electronics Development Corporation Ltd.
    v. Mammi, (2006) S SCALE 164, referred to.
D
          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3416 of2006.

         From the Judgment and Order dated 1.9.2003 of the High Court of
    Punjab and Haryana at Chandigarh in Civil Writ Petition No. I 03 I 7/2003
    and dated 9.7.2004 in Review Application No. 6/2004.
E         Ajay Majithia, Rajesh Kur.iar and Dr. Kailash Chand for the Appellant.

          S.K. Bansal, Savitri Bansal and Goodwill lndeevar for the Respondent.

          The Judgment of the Court was delivered by

F         S.B. SINHA, J. Leave granted.

          The appellant is a municipal council. The respondent was engaged on
    a contractual basis at a fixed pay of Rs. I000/- per month by an Office Order
    dated 6.11.1995. She worked for a period from 8.11.1995 to 17.6.1996. The
    said Office Order dated 6. I I. I 995 reads as under :
G
          "Office of the Nagar Council, Samrala (Ludhiana)
  MUNICIPAL COUNCIL, SAMRALA v. SUKHWINDER KAUR [SINHA, J.) 383

      No. 588                                  Dated : 06.11.1995                   A

                                  Office Order No.

            On dated 6.11.1995 vide order dated 6.11.1995 you are appointed
        as clerk on the contract basis at the fixed rate of Rs. I 000/- per month
        as per the directions of the Government, it is purely temporary             B
        appointment. No one will force against this post. Executive Officer
        has the powers to dismiss you without issuing any notice. All the
        tenns and conditions issued by the office will be accepted by you.
                                                        Sd/- Executive Officer
                                                      Nagar Council, Samrala"       C
      She again worked under an offer of appointment on a contractual basis
in tenns of an office order dated 20.6.1996. For the period between 3.9.1996
and 23.5.1997 she furthennore worked on similar tenns and conditions in
tenns of an offer of appointment dated 20.10.1996. On her services being
tenninated, an industrial dispute was raised.                                       D
      The Presiding Officer of the Labour Court by an Award dated 11.2.2003
opined that the termination of the respondent from services was not in
conformity with the provisions of 25-F of the Industrial Disputes Act, 194 7
('the Act', for short). It directed her reinstatement with continuity of service
with 25% of the backwages.                                                          E
      The appellant herein filed a writ petition before the Punjab and Haryana
High Court questioning the correctness or otherwise of the said Award, inter
alia, contending that as the appointment of the respondent answers the
description of Section 2(oo)(bb) of the Act; the provisions of Section 25-F
thereof are not attracted. The said contention of the appellant was rejected        F
stating :

           "The Labour Court has also found that there is nothing on the file
       to show that the work was not available after the date of tennination
       of services of the workman. It has also been accepted by the parties         G
       that the services of the workman were tenninated without any notice,
       charge sheet, enquiry or payment of compensation. The Labour Court
       therefore, held that there has been violation of Section 25 of the
       Industrial Disputes Act, 1947. However, the workman was ordered to
       be reinstated with only 25 per cent back wages."
                                                                                    H
      A Review Petition filed by the appellant before the High Court was
    384                     SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A also dismissed.
          The respondent, within a span of about 18 months, was appointed
    thrice and disengaged thrice. As noticed hereinbefore, she was appointed on
    a contractual basis. The appointments were temporary ones. She was aware
    that her services could be terminated without notice. She accepted the terms
B   and conditions of the said offers of appointments without any demur.

          Section 2( oo) of the Act defines retrenchment to mean termination by
    the employer of service of the workman for any reason whatsoever, otherwise
    than as a punishment inflicted by way of disciplinary action, but does not
C   include:

                "(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; .. "
D          Although, there was no fixed period of contract of employment between
    the employer and the workman concerned and thus, no question of its renewal
    on its expiry, but there existed a stipulation in the contract that the Executive
    Officer has the power to dismiss her without issuing any notice. The question.
    which now arises for consideration, is whether Section 2( oo )(bb) of the Act
E   is attracted to the facts and circumstances of this case.

          We would, in this behalf, may take note of some precedents operating
    in the field.

          In Municipal Council, Samra/av. Raj Kumar, (2006] 3 SCC 81, it was
F held:
                "The appellant is a Municipal Council. It is governed by the
            provisions of a statute. The matter relating to the appointment of
            employees as also the terms and conditions of their services
            indisputably are governed by the provisions of the relevant Municipal
G           Act and/or the rules framed thereunder. Furthermore, there is no doubt
            that the matter relating to the employment in the Municipal Council
            shou Id be governed by the statutory provisions and thus such offer of
            appointment must be made by a person authorised therefor. The agenda
            in question was placP.d before the Executive Council with a view to
H           obtain requisite direction from it wherefor the said letter was written.
  MUNICIPAL COUNCIL, SAMRALA v. SUKHWINDER KAUR [SINHA, J.] 385

      The reason for such appointment on contract basis has explicitly been       A
      stated therein, namely, that one post was vacant and two employees
      were on leave and in that view of the matter, services of a person
      were immediately required in the Council. Thus, keeping in view the
      exigency of the situation, the respondent came to be appointed on the
      terms and conditions approved by the Municipal Council.
                                                                                  B
          We have noticed hereinbefore that the respondent understood that
      his appointment would be short-lived. He furthermore understood
      that his services could be terminated at any point of time as it was on
      a contract basis. It is only in that view of the matter, as noticed
      hereinbefore, that he affirmed an affidavit stating that the Municipal      C
      Council of Samrala could dispense with his services and that they
      have a right to do so."

    S.M Nilajkar & Ors. v. Telecom District Manager, Karnataka, [2003]
4 sec 27, was distinguished therein stating :

         "In the decision of this Court in S.M. Nilajkar v. Telecom Distt.        D
       Manager whereupon the learned counsel for the respondent placed
      strong reliance, this Court was concerned with a different fact situation
      obtaining therein. In that case, a scheme for absorption of the
      employees who were appointed for digging, laying cables, erecting
      poles, drawing lines and other connected works was made which               E
      came into force with effect from 1-10-1989, and only those whose
      names were not included for regularisation under the said scheme,
      raised disputes before the Assistant Labor Commissioner, Mangalore.
      The termination of the services of casual mazdoors by the management
      of Telecom District Manager, Belgaum, thus came to be questioned
      in the reference made by the appropriate Government in exercise of          F
      its power conferred upon it under Section 10 of the Industrial Disputes
      Act. This Court, having regard to the contentions raised by the
      respondents that the appellant therein was engaged in a particular
      type of work, namely, digging, laying cables, erecting poles, drawing
      lines and other connected works in the project and expansion of the         G
      Telecom Office in the district of Belgaum was of the opinion : (SCC
      p.37, para 13)

         "13. The termination of service of a workman engaged in a scheme
      or project may not amount to retrenchment within the meaning of
      sub-clause (bb) subject to the following conditions being satisfied :       H
    386                    SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A              (i) that the workman was engaged in a project or scheme of
           temporary duration;

               (ii) the employment was on a contract, and not as a daily-wager
           simpliciter, which provided inter alia that the employment shall come
           to an end on the expiry of the scheme or project;
B
               (iii) the employment came to an end simultaneously with the
           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
C          abovesaid terms by the employer at the commencement of
           employment."

          Raj Kumar (supra) has been followed by this Court in The Haryana
    State Agricultural Marketing Board v. Subhash Chand & Anr., (2006) 2
    SCALE 614 holding :
D
               "'lt is the contention of the appellant that the respondent was
           appointed during the 'wheat season' or 'paddy season'. It is also not
           in dispute that the appellant is a statutory body constituted under the
           Punjab and Haryana Agriculture Produce Marketing Board Act. In
           terms of the provisions of the said Act, indisputably, regulations are
E          framed by the Board laying down terms and conditions of services of
           the employees working in the Market Committees. A bare perusal of
           the offer of appointment clearly goes to show that the appointments
           were made on contract basis. It was not a case where a workman was
           continuously appointed with artificial gap of I day only. Indisputably,
           the respondent had been re-employed after termination of his services
F          on contract basis after a considerable period(s).

                The question as to whether Chapter VA of the Act will apply or
           not wou Id dependent on the issue as to whether an order of
           retrenchment comes within the purview of Section 2(oo)(bb) of the
           Act or not. If the termination of service in view of the exception
G
           contained in clauses (bb) of Section 2( oo) of the Act is not a
           ·retrenchment', the question of applicability of Chapter VA thereof
           would not arise."

          The High Court furthermore did not consider the question as to whether
H the appellant had any vacancy in respect of the post.
      MUNICIPAL COUNCIL. SAMRALA v. SUKHWINDER KAUR [SINHA, J.) 387

          We, therefore, are of the opinion that the said decisions are applicable A
    in the instant case.

          However, it appears, before the High Court in .the review application,
    the appellant itself had made a proposal to give lump sum compensation in
    lieu of her reinstatement. In view of that the appellant itself was before the
    High Court, we arc of the opinion that interest of justice shall be met if a sum   B
    of Rs.30,000/- is directed to be paid to the respondent, as was directed in
    State of M.P. & Ors. v. Arjunlal Rajak, (2006) 2 SCALE 610, Nagar
    Mahapalika (Now Municipal Corpn.) v. State of U.P. & Ors., (2006) 5 SCALE
    145 and Haryana State Electronics Development Corporation Ltd. v. Mamni,
    (2006) 5 SCALE 164.                                                                C
          The aforementioned amount shall be paid to the respondent within a
    period of four weeks from the date of receipt of a copy of this order failing
    which she would be entitled to interest thereupon @6% per annum till the
    date of payment.
                                                                                       D
           The appeal is are disposed of on the above terms.

    v.s.                                                      Appeal disposed of.




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