Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3
CASE NO.:
Appeal (civil) 4771 of 2006
PETITIONER:
Bhogpur Co-op Sugar Mills Ltd.
RESPONDENT:
Harmesh Kumar
DATE OF JUDGMENT: 10/11/2006
BENCH:
S.B. Sinha & Markandey Katju
JUDGMENT:
J U D G M E N T
(Arising out of SLP (C) No. 17885 of 2005)
S.B. SINHA, J.
Leave granted.
Appellant is a cooperative society. It is registered under the Punjab
Cooperative Societies Act, 1961. It operates a sugar mill. It is said to be a
seasonal industry. At the beginning of the season, workmen are recruited
and they are retrenched at the end of it. Respondent was appointed as a
seasonal workman. He was appointed on daily wage basis. On or about
14.03.1992, he raised an industrial dispute in terms of Section 2A of the
Industrial Disputes Act, 1947 (for short "the Act") pursuant whereto or in
furtherance whereof the State of Punjab in exercise of its jurisdiction under
Section 10(1)(c) of the Act referred the following dispute to the Labour
Court by a notification dated 8.07.1996:
"Whether termination of services of Sh. Harmesh
Kumar workman is justified and in order? If not,
to what relief/ exact amount of compensation is he
entitled?"
The Presiding Officer, Labour Court, Gurdaspur opining that the
workman has not been able to establish that he had worked for 240 days held
that the respondent having not been called by the appellant in the subsequent
crushing seasons and also having called his juniors violated the provisions of
Section 25-G of the Act. He, therefore, passed the following award:
"In the result, in view of my findings on the above
issue, I pass an award directing the respondent to
reemploy the workman from the season in which
juniors to him were called and workman was not
called. The workman shall also be entitled to back
wages, etc. with all allied and monetary benefits
which are granted to his juniors from their joining
when workman was not called\005"
A writ petition was filed by the appellant herein questioning the
legality and/ or validity of the said award and by reason of the impugned
judgment a Division Bench of the High Court rejected the contention raised
by the appellant herein that the provisions of Section 25-G of the Act cannot
be said to have any application in the instant case stating:
"We, however, find no merit in this argument for
the reason that a positive finding has been recorded
by the Tribunal that persons junior to the workman
had been retained and it is also admitted by the
Management that they had not offered any
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3
appointment to the respondent on account of
pendency of the dispute in Court. We are of the
opinion that had it been the case of the
Management that the exigencies of services did not
warrant his re-employment, something could be
said in its favour but this is not the case of the
Management. No offer was made to the workman
on account of the pendency of the proceedings
before the Labour Court."
The fact that the appellant operates a seasonal factory and the
respondent had not been in continuous service for 240 days during twelve
months preceding his termination is not in dispute.
Contention of the appellant is that the termination of the respondent’s
services did not come within the purview of the term ’retrenchment’ as
contained in Section 2(oo)(bb) of the Industrial Disputes Act.
The Labour Court derived its jurisdiction from the terms in reference.
It ought to have exercised its jurisdiction within the four corners thereof.
The principal question which was referred by the State Government
was as to whether the termination of services of the respondent was justified.
The Labour Court was, therefore, not required to go into the question as to
whether the appellant was bound to take the services of the respondent in all
subsequent seasons or not.
We are not oblivious of the distinction in regard to the legality of the
order of termination in a case where Section 25-F of the Act applies on the
one hand, and a situation where Section 25-G thereof applies on the other.
Whereas in a case where Section 25-F of the Act applies the workman is
bound to prove that he had been in continuous service of 240 days during
twelve months preceding the order of termination, in a case where he
invokes the provisions of Sections 25-G and 25-H thereof he may not have
to establish the said fact. [See Central Bank of India vs. S. Satyam &
Ors.(1996) 5 SCC 419, Samishta Dube vs. City Board, Etawah & Anr.
(1999) 3 SCC 14, Regional Manager, SBI vs. Rakesh Kumar Tewari (2006)
1 SCC 530 and Jaipur Development Authority v. Ram Sahai & Anr.8Civil
Appeal No. 4626 of 2006 decided on 31st October, 2006]
However, category-wise seniority is required to be maintained when
different categories of workmen are appointed so as to apply the principle of
’last-cum-first go’. A seniority list is also required to be maintained so as to
enable the employer to offer services to the retrenched employees
maintaining the order of seniority. The said provisions, however, would
have no application in a case where Section 2(oo)(bb) of the Act is attracted.
The said provision reads, thus:
"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
(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;"
Termination of services of a workman as a result of non-renewal of
the contract of employment on its expiry or termination of such contract of
appointment under a stipulation in that behalf contained therein would, thus,
not attract the definition of the term ’retrenchment’. [See Municipal
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3
Council, Samrala v. Sukhwinder Kaur, (2006) 6 SCC 516 and Municipal
Council, Samrala v. Raj Kumar, (2006) 3 SCC 81]
The issue is squarely covered by a decision of this Court in Morinda
Coop. Sugar Mills Ltd. v. Ram Kishan and Others [(1995) 5 SCC 653]
wherein it was opined:
"It would thus be clear that the respondents were
not working throughout the season. They worked
during crushing seasons only. The respondents
were taken into work for the season and
consequent to closure of the season, they ceased to
work.
The question is whether such a cessation would
amount to retrenchment. Since it is only a seasonal
work, the respondents cannot be said to have been
retrenched in view of what is stated in clause (bb)
of Section 2(oo) of the Act. Under these
circumstances, we are of the opinion that the view
taken by the Labour Court and the High Court is
illegal. However, the appellant is directed to
maintain a register for all workmen engaged
during the seasons enumerated hereinbefore and
when the new season starts the appellant should
make a publication in neighbouring places in
which the respondents normally live and if they
would report for duty, the appellant would engage
them in accordance with seniority and exigency of
work."
Yet again, recently in Haryana State Agricultural Marketing Board v.
Subhash Chand and Another [(2006) 2 SCC 794], this Court held:
"It is the contention of the appellant that the
respondent was appointed during the wheat season
or the 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 framed
by the Board laying down the 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 1 day only.
Indisputably, the respondent had been re-employed
after termination of his services on contract basis
after a consideration period(s)."
[See also Municipal Council, Samrala v. Sukhwinder Kaur, (2006) 6 SCC
516 and State of Rajasthan v. Sarjeet Singh & Anr., 2006 (10) SCALE 417]
For the reasons aforementioned, the impugned judgment cannot be
sustained which is set aside accordingly. The appeal is allowed. No costs.