Sonepat Cooperative Sugar Mills Ltd. v. Rakesh Kumar
R. V. RA VE END RAN, J. This appeal is by an employer is against the
B order of dismissal dated 11.9.2003 passed by the High Court of Punjab &
Haryana in C.W.P. No.14355 of 2003 wherein it had challenged the award
dated 2.4.2003 in Ref. No. 417 /2000 made by the Industrial Tribunal-cum
Labour Court, Panipat.
The appellant employed the respondent on daily wages in its computer
C section on 1.7.1998. According to the appellant, such appointment was made
after obtaining sanction from the appropriate authority for employing the
Respondent between the period I. 7.1998 and 31.8.1999. His services were
terminated on 31.8.1999.
Feeling aggrieved by the termination, the Respondent served a demand
D notice dated 4.1.2000 for reinstatement with back wages and continuity of
service, allegi~g that he was illegally terminated on 29.9.1999 without any
prior notice or notice pay or retrenchment compensation, in violation of
Section 25F of the Industrial Disputes Act, 1947 (for short 'the Act'). The
State Government referred the dispute to the Labour Court under Section
E 10(1 )( c) of the Act. In its reply filed before the Labour Court, the appellant
contended that the respondent was engaged on daily wage basis on 1.5.1998,
that as he actually worked only from 1.7.1998 he was paid salary from that
date, and that he did not complete 240 days of service in a year and, therefore,
there was no need to comply with the requirements of Section 25F of the Act.
F By award dated 2.4.2003, the Labour Court allowed the claim and held
that the respondent is entitled to reinstatement to the post of Computer
Programmer with continuity of service and full back-wages from 4.1.2000.
The Labour Court, after considering the evidence, in particular, the.attendance
register for the period 1.7.1998 to 31.8.1999 produced by the appellant and
G the admission by appellant's witness, held th~t the respondent had worked
continuously for more than 240 days in the period of 12 months prior to his
termination. Consequently, it held that the termination of service ofrespondent
without notice, notice-pay and retrenchment compensation was violative of
Section 25-F of the Act.
H The appellant challenged the said order by filing C.W.P. No.14355 of
SONEPAT COOPERATIVE SUGAR MILLS LTD. v. RAKESH KUMAR [RAVEENDRAN, J.J953
2003 which was dismissed by the High Court at the stage of admission itself A
without notice to the respondent. The said order is challenged in this appeal.
Two contentions are urged by the appellant :
(i) The termination of the service of the respondent was on account
of non-renewal of contract of employment. Having regard to the
definition of the term retrenchment in section 2(oo)(bb) of the B
Act, which excluded contracts of employment for specific periods,
the termination did not amount to retrenchment and therefore,
there was no obligation to comply with the requirements of
·Section 25-F of the Act;
(ii) Even if the order of reinstatement is to be upheld, there is no C
justification for directing reinstatement as Computer Programmer,
as he was appointed only as a Helper on daily wage basis.
· Re : Contention (i) :
The contention of the appellant that the respondent was appointed for D
a specific period, namely, l.7.1998 to 31.8.1999 and the termination of his
service is on account of non-renewal of contract of employment is not borne
out either by the pleadings or the evidence. The appellant did not produce
any letter of appointment or other documents showing that the respondent
was appointed for the period from I. 7 .1998 to 3 l.8.1999 or the termination
was on account of non-renewal of such term appointment. On the other hand, E
the specific case of the appellant before the Labour Court and in the writ
petition was that there was no sanctioned post of Computer Programmer ot
Computer Operator and that as there was no such sanctioned post, the
respondent was appointed as a Computer Helper on daily wage basis, pending
decision on creation of the post and prescription of qualification thereof. The F
appellant specifically pleaded in the writ petition that Respondent was informed
that "the work was of a temporary nature and his services would not be
required after the staff of the Mill gained proficiency in computerization". It
was further alleged that as some staff of the appellant, learnt to operate the
computer, the respondent's services were terminated on 3 l.8.1999 and he
had not served for 240 days. The appellant never contended before the Labour G
Court or the High Court that the appointment was contractual for a specific
term from l. 7 .1998 to 31.8.1999 and that the termination was on account of
non renewal of such contract. Nor was it pleaded or proved that Respondent
was informed at the time of appointment that appointment was contractual up ,
to 31.8.1999. The appellant can not raise such a contention for the first time H
A before us. The pleadings and evidence clearly show that the termination is
'retrenchment'. The first contention is, therefore, rejected.
From the evidence led before the Labour Court, the finding recorded
by the Labour Court that the respondent was employed on daily wage basis
and had worked for more than 240 days during the period of 12 months
B before the date oftennination, did not call for interference. The appellant had
examined one Randhir Singh, Time Keeper as MW-2 who had produced the
Attendance Register for the period 1. 7. l 998 to 31.8.1999 and specifically
admitted that as per the Attendance Register, the respondent· had worked
continuously between the said period and further admitted that the respondent
C had worked for more than 240 days in a period of one year prior to
respondent's tennination. In view of it, there was a clear violation of Section
25-F and we find no error in the direction for reinstatement.
Re: Contention (ii)
D This leads us to the second question as to whether the Labour Court
was justified in directing that the Respondent should be reinstated as a
Computer Programmer.
In the demand notice sent by the respondent under Section 2A of the
Act, the respondent merely stated that he was engaged to work in the Computer
E Section on computers. He did not say that he was appointed as a Computer
Programmer. The appellant, on the other hand, specifically contended in the
reply that the respondent was appointed as a Helper in the Computer
Department and not as a Computer Programmer. The Appellant has also
produced the Casual Labour Payment Sheet for some of the months during
the period when the respondent was employed ori daily wage basis. The said
F Casual Labour Payment Sheet for July, 1998 shows that he was engaged as
a Computer Helper. The Casual Labour Muster Roll and Casual Labour
Payment Sheet show that he was appointed a Computer Helper. The respondent
has also produced some documents before us (correspondence) referring to
him as Computer Programmer. But those are all communications emanating
G from the respondent describing himself as 'Computer Programmer'. It is not
disputed that the respondent was a matriculate with a Diploma in Computer
Science lrt the time of appointment. It is also evident that the respondent's
services were being utilized by the appellant for operating the computer
temporarily, till it could secure the services of a qualified person. The
Respondent did not produce any document to show that he was appointed as
H a 'Programmer'. In the demand notice under section 2A, he merely stated
SONEPAT COOPERATIVE SUGAR MILLS LTD. v. RAKESH KUMAR [RAVEENDRAN, J.)955
that he was engaged to work in the computer department and prayed that he A
may be reinstated into service. The Labour Court was not justified in directing
that the respondent should be reinstated as a Computer Programmer, as he
was appointed as a Helper in the Computer Department. The reinstatement
can, therefore, be only as a helper and not as 'Computer Programmer'. As the
records clearly show that he was appointed in a non-manual clerical post in B
the computer department, his reinstatement shall be as Helper involving clerical
work (not necessarily in the computer section), but not as a manual labourer.
Subject to the said clarification, we uphold the orders of the Tribunal
and that of the High Court and dismiss this appeal.
NJ. Appeal dismissed. C