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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.1589 OF 2006
Nilesh M. Mahadeshwar
a citizen of India, Age 39 years,
residing at C-711, Shivdarshan,
Satyanagar Co-operative Housing
Society, Saibaba Mandir Main Road
Borivali (West), Mumbai 400 092. : Petitioner
V/s.
1. The Presiding Officer
Central Government Industrial
Tribunal No.1, Mumbai
Shram Raksha Bhvan,
Sion, Mumbai 400 022.
2. The Seamen's Provident Fund
Commissioner, having office at
Krupanidihi, 3rd floor,
Walchand Hirachand Marg,
Ballard Estate, Mumbai 400 001. : Respondents
...
Mr.Jay Prakash Sawant for the petitioner.
Ms S. Priya for respondent no.2.
...
CORAM : S.A.BOBDE, J.
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DATE : AUGUST 12, 2008.
ORAL JUDGEMENT:
1. The petitioner has challenged the award dated
1.12.2005 of the Central Government Industrial Tribunal
No.1, Mumbai, holding that the action of the Seamen's
Provident Fund Commissioner in terminating the
petitioner’s service is legal and justified.
2. The petitioner was employed as a Junior Assistant with
effect from 25.4.1994. The appointment order stated that
his appointment was purely provisional for a period of six
months and conditional upon: (i) showing aptitude to
work;
(ii) punctuality in attendance; and (iii) devotion
to duties. The petitioner’s services were liable for
termination at any time without assigning any reason. The
period of six months was to expire on 24.10.1994. His
services were terminated with effect from 21.10.1994 i.e.
three days before the specified term.
3. The petitioner prayed for a reference before the
appropriate Government. The Government rejected his
prayer, inter alia, on the ground that the request was
delayed and he had not completed 240 days. He, therefore,
approached this Court. In Nilesh M. Mahadeshwar v.
Union of India & Anr., reported in (2003 III CLR 854), a
Division Bench of this Court held that the Government
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could not have refused to refer the dispute since it
existed and merely because he had not completed 240 days,
it could not be said that the dispute could not be
referred since the dispute was triable under section 25H
of the Industrial Disputes Act, 1947, hereinafter referred
to as the “Act”, even in respect of a workman who has not
completed 240 days. After the order of this Court, the
Central Government referred the matter to the Industrial
Tribunal which decided the same by the impugned award.
4. The Central Government Industrial Tribunal No.1 has
rejected the petitioner's case on the ground that the
petitioner was
employed in a temporary capacity for a
fixed period. His services are not liable to be
terminated at any time without assigning any reason. In
the circumstances, the termination did not amount to
retrenchment by virtue of section 2(oo)(bb) of the Act and
the provisions of the Act which deal with retrenchment did
not apply to the petitioner’s case.
5. Mr.Sawant, the learned counsel for the petitioner,
challenged the award of the Industrial Tribunal on the
ground that the Industrial Tribunal has committed an error
of law in not treating the petitioner’s termination as
retrenchment. According to the learned counsel, the
Industrial Tribunal ought to have held that the
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petitioner’s termination was without following the
procedure prescribed under section 25F of the Act. No
notice or one month’s salary in lieu of notice was given
and that, in any case, the act of not re-employing the
petitioner was contrary to section 25H of the Act since
others had been employed after the petitioner’s
termination. It was also contended by Mr.Sawant that the
provisions of the Model Standing Orders framed under the
Industrial Employment (Standing Orders) Act, 1946, in
particular standing order nos.2 and 13 apply, as a result
of which the petitioner’s services could not have been
terminated without one month’s notice in writing with
reasons or wages in lieu thereof. The contention advanced
before this Court were also advanced before the Industrial
Tribunal. The Industrial Tribunal held that the
petitioner’s appointment was for a fixed period and
clearly governed by clause (oo)(bb) of the Act and,
therefore, section 25F did not apply. The Industrial
Tribunal relied on the judgement of the Supreme Court in
Venugopal v. Divisional Manager, LIC, reported in (1994)
2 SCC 323, wherein the Supreme Court held that the
employer could terminate the service in terms of the
letter of appointment unless it was a colourable exercise
of power. Having regard to the condition in the
petitioner’s appointment letter that the services could be
terminated at any stage without assigning any reason, the
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Industrial Tribunal applied the ratio of the decision of
the Supreme Court in Escorts Limited v. Presiding
Officer, reported in 1997 II SCC 521, wherein it was held
that such a termination would not amount to retrenchment
and did not apply the provisions of section 25F and 25G of
the Act. The learned counsel for the petitioner relied on
a decision of the Supreme Court in Central Bank of India
v. Satyam & Ors., reported in 1996 II CLR 1095. That
case has no application to the present case since that
case involves the services of a workman who has been in
continuous service of not less than one year. In such
case, the Supreme Court observed that section 25F would
apply to
the retrenchment of a workman who has been in
continuous service of less than one year.
6. The learned counsel for the petitioner next relied on
the decision of the Delhi High Court in Gopal v. MDC &
Anr., reported in 2003 III CLR 1016. The Delhi High Court
relied on the decision of the Supreme Court in Samishta
Dube v. City Board, Etawah & Anr., reported in 1999 I CLR
854, took the view that it cannot be said that the workmen
who had not completed 240 days of service had no
industrial rights under the Act and, therefore, held that
section 25G was applicable in such a case. That case has
no application to the facts of the present case. The
petitioner has not established any breach of section 25G
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to the effect that he was not the last person to be
employed in that category. In any case, as observed
earlier, there is a clear and cogent finding of the
Industrial Tribunal that the termination of the
petitioner’s services does not amount to retrenchment.
That finding is a valid finding and section 25G would have
no application.
7. It was next contended by the learned counsel for the
petitioner, relying on the decision in S.M. Nilajkar &
Ors. v. Telecom District Manager, Karnataka, reported in
2003 II CLR 233, that the termination of the petitioner's
services could
be said to be retrenchment because the
respondent has not shown that he was appointed for a
project which came to an end simultaneously with the
termination of his services. That case greatly differs in
facts from the present case. There the employer had
contended that the workmen were engaged as casual workers
in a project. He had apparently not adduced any evidence
to prove in support of the contention and further that the
project had come to an end. In the circumstances, the
Supreme Court held that 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:-
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"(i) that the workman was employed in a
project or scheme of temporary duration;
(ii) the employment was on a contract, and
not as a daily-wager simplicitor, which
provided inter alia that the employment
shall come to an end on the expiry of the
scheme or project; and
(iii) the employment came to an end
simultaneously with the termination of the
scheme or project and consistently with the
terms of the contract;
(iv) the workman ought to have been
apprised or made aware of the abovesaid
terms by the employer at the commencement
of employment."
For the reasons stated above, the reliance of that case
is misplaced.
8. It was lastly contended by Mr.Sawant that the
termination was in violation of Model Standing Order
no.13. For terminating the service of a workman, a
notice of one month in writing with reasons or wages in
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lieu thereof shall be given by the employer. There is no
merit in this contention in view of that very Standing
Order which provides that no notice of termination of
employment is necessary in case of temporary and badli
workmen. It is clear that the petitioner was employed on
a temporary basis i.e. of an essentially temporary
nature likely to be finished within a limited period in
accordance with the order of appointment. There is no
material to show that the work in which the petitioner
was appointed was not likely to be finished within a
limited period. The petitioner was appointed as a Junior
Assistant in the Accounts Department. From the fact that
accounts
continued, it cannot be inferred that the work
for which the petitioner was appointed also continued.
9. In this view of the matter, there is no merit in the
challenge to the award which does not suffer from any
error of law apparent from the record. The Writ Petition
is, therefore, dismissed. The rule shall stand
discharged.
S.A. BOBDE, J.
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