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CASE NO.:

Appeal (civil) 4769 of 2006

PETITIONER:

Gangadhar Pillai

RESPONDENT:

M/s. Siemens Ltd

DATE OF JUDGMENT: 10/11/2006

BENCH:

S.B. Sinha & Dalveer Bhandari

JUDGMENT:

J U D G M E N T

(Arising out of SLP (C) No. 9637 of 2006)

S.B. SINHA, J.

Leave granted.

Respondent has its own Engineering and Field Service department

which undertakes jobs of industrial project installation, erection,

commissioning of electrical/ electronic equipments which are supplied by it

or the same are directly brought by its clients at various projects/ sites as per

their requirements.

The services of Respondent are utilized for the aforesaid work as a

contractor which is a project/ site work required to be completed within the

stipulated period, time and quality being the essence of the contract entered

into by and between the parties.

Respondent used to engage temporary personnel in the category of

skilled, semi-skilled and unskilled workers. Appellant had been appointed

by Respondent on temporary basis for duration of the project/ site work and

on completion thereof his services used to be terminated.

Indisputably, Appellant used to be employed almost on a regular basis

since 1978. His services were availed by Respondent not only for its various

projects in India but also in Iraq.

Procedure followed for availing the services of Appellant by

Respondent had been that whenever such contract was obtained and project

work started at the instance of the Head Office, a telegram used to be sent to

him for availing his services whereupon he was asked to join the site office.

Appointment letters used to be issued by the said office were in a prescribed

proforma, the relevant portion from a sample copy whereof reads as under:

"LETTER OF APPOINTMENT FOR

TEMPORARY PERSONNEL

Name : Mrs. R. Gangadharan Pillai

Roll No. : 133

Local Address: : Room No. 148/4, Indhira

Nagar, Chambur, Bombay-74

Permanent Address: Saraswati Vilasm Ezhlcon

P.O. Anitose, Kerala

Date of Birth : 22 years

Consolidated salary/

Wages per month : Rs. 200/-

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Date of Joining : 22.5.78

Type of Employment: Helper

Dear Sir,

We have pleasure in appointing you on the terms

mentioned above and conditions stipulated

herebelow:-

Your services are required for execution of

erection job at F.C.-1 on purely temporary basis

for a period of Three month (s) from 22.5.78 to

21.8.78, at the expiry of which your appointment

will automatically stand terminated without any

notice, unless the period of appointment is

extended in writing. During the temporary period

of your service either party is at liberty to

terminate the appointment without any notice and/

or assigning any cause or any compensation in lieu

thereof\005"

A declaration used to be given by the employee concerned that the

contents thereof had been explained to him and upon understanding the same

he used to put his signature.

Before us, a chart has been filed to show that Appellant had worked

for as little as 4 days in a project upto 365 days in a year.

It, however, appears that he was temporarily appointed for different

projects at Rourkela Steel Plant, details whereof are as under:

S.No.

Site

From

To

No. of days

worked

1.

Rourkela Steel Plant

18.10.1992

31.03.1994

530

2.

-do-

01.01.1994

27.08.1994

150

3.

-do-

26.09.94

06.04.1996

558

4.

-do-

14.05.1996

10.05.2000

1458

The services of Appellant came to an end on 10.5.2000. He filed a

complaint petition before the Industrial Tribunal contending that Respondent

herein has resorted to unfair labour practice within the meaning of Item No.

6 of Schedule IV of the Maharashtra Recognition of Trade Unions and

Prevention of Unfair Labour Practices Act, 1971 (for short "the Act").

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Before the Industrial Tribunal, the parties adduced their respective

evidences.

In his deposition, Appellant contended that he had regularly been

working in various projects of Respondent. It was contended that the

services of personnel junior to him had been regularized and despite the fact

that in many years he had worked for 240 days, he used to be appointed for

temporary periods. According to him, the very fact that he had been

working continuously since 1978 is itself an indicator to the fact that the job

was perennial in nature.

The Industrial Tribunal by an award dated 4.8.2004, however, opined:

"\005Admittedly, as on this date, the Complainant

has not been in the employment of the Respondent.

Therefore, no question arises of giving any

direction to the Respondent company to confer any

status and privileges of permanent employee on

the Complainant. Besides if the Complainant has

miserably failed to prove that the break in two

appointments of the Complainant was "artificial

break". The appointment letter placed on file

manifest that the engagement of the Complainant

was for a specific period as mentioned therein.

Therefore, in my considered view, the substantial

controversy emerging from the instant complaint

has been in respect of alleged illegality on the part

of Respondent company in terminating his services

from 10.05.2000\005"

It further came to the conclusion that the substantial controversy

revolved round the termination of Appellant's services on 10.5.2000 and,

thus, the same is required to be considered in terms of Item 1 of Schedule IV

of the Act and not under Item 9 of Schedule IV thereof.

It was observed:

"I may observe that the Complainant could have

taken recourse to section 32 of the M.R.T.U. &

P.U.L.P Act, to make prayer before this Court to

decide the controversy pertaining to his alleged

illegal termination of service dated 10.05.2000,

had his services been terminated by the

Respondent company pending the complaint under

items 5,6 and 9 of Schedule IV for redressal of his

grievances of giving permanency in the

employment. However, admittedly the

Complainant has approached this Court under said

items of unfair labour practice, praying for

permanency after termination of his services w.e.f.

10.05.2000. I, therefore, find the instant complaint

being highly unsustainable as I find the substantial

controversy in respect of admitted termination of

his services by the Respondent w.e.f. 10.05.2000

for which a special forum viz. Labour Court has

been provided under the M.R.T.U. & P.U.L.P.

Act."

A writ petition was filed by Appellant aggrieved by and dissatisfied

therewith. The said writ petition was also dismissed by a learned Single

Judge by a judgment and order dated 8th December, 2004 opining:

"\005It is well settled by a catena of decisions of this

Court as well as of the Apex Court that the project

related employees cannot as a matter of right,

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demand any status and privileges of permanent

employee. Considering the same merely because

the Petitioner has been engaged from time to time

in relation to the projects undertaken by the

Respondent Company, no fault can be found in the

impugned order holding that there was no unfair

labour practice on account of such employment

and non grant of status and privileges of permanent

employee to the Petitioner\005"

A Division Bench of the High Court in an intra-court appeal refused

to interfere with the judgment of the learned Single Judge stating:

"Then a reasoned order followed thereafter. The

learned Judge of the Industrial Court came to the

conclusion that the unfair labour practices, as

alleged by the complainant \026 present appellant, are

not committed. The finding on the issue is given

on appreciation of the evidence by the learned

Industrial Court. After giving such finding, in

paragraph 13 the learned Industrial Judge has

observed that factually the services of the appellant

were terminated on 10.5.2000 and, therefore,

unless he seeks and gets reinstatement to the job,

he again complained of an unfair labour practice

because the unfair labour practice committed

during the course of the employment. The

observations in regard to jurisdiction, therefore,

were completely ancillary, and the learned

Industrial Judge gave a finding that the

commission regarding unfair labour practices was

not proved. This order was challenged before the

learned Single Judge of this Court and the learned

Judge, on appreciation of the contentions raised,

rejected the writ petition. The learned Single

Judge had analysed the order passed by the

Industrial Court and has observed as under:-

"The Industrial Court, after hearing the

parties on analysis of the materials on record

while dismissing the complaint, has held

that what has been reiterated in the

complaint was that the complainant was

engaged at various sites of the respondents

after giving artificial breaks in the service."

Then, the learned Single Judge has given a finding

that in such circumstances, there is no question of

adoption of an unfair labour practice and,

therefore, declined to interfere under Article 227 of

the Constitution. That being so, the Letters Patent

Appeal, obviously, is not tenable. Even otherwise,

we see no fault with the order impugned\005"

Mr. Colin Gonsalves, learned senior counsel appearing on behalf of

Appellant, in support of this appeal would contend that in the instant case a

skilled workman of a multinational corporation had been kept on temporary

basis for 22 years by giving artificial breaks in service and by engaging and

disengaging him on regular basis. Item 6 of Schedule IV of the Act, it was

submitted, covers work of a regular or perennial nature and yet the employer

appointed Appellant merely on temporary basis. The question of temporary

appointment of a project related work, it was urged, would not arise as:

(i) the period is sufficiently large;

(ii) Respondent gets contract on regular basis and number of days for

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which services of the employee are taken correspondent to the

work of a regular employee is more than 240 days a year; and

(iii) no explanation has been offered by Respondent as to why the

appointments have to be of such a nature.

Drawing our attention to the evidence produced by Appellant before

the Tribunal, it was submitted that from the statements it was necessary to

draw an inference as regards existence of a critical case and, particularly, in

view of the fact that the juniors to Respondent were made permanent but the

same benefit was denied to him. It was urged that the recuse as regards lack

of qualification on the part of Appellant could not have been a ground to

regularize his services as his experience for a period of 22 years had made

up the lack of educational qualification.

Lastly, it was contended that assuming that the termination of the job

was valid, Appellant could not have been denied the benefit of 22 years' of

service in the event it is held that Respondent is guilty of taking recourse to

unfair labour practices within the meaning of the Act.

Mr. P.K. Rele, learned senior counsel appearing on behalf of

Respondent, on the other hand, would draw our attention to the chart for the

purpose of showing that Appellant had never been appointed in any

continuous job and his services were taken as and when the same became

available.

Drawing our attention to the practice and procedure for such

appointment, as noticed hereinbefore, it was submitted that the appointment

letters categorically stated about the nature of job, the period of employment

and the fact that on expiry of the said period, his employment would come to

an end.

The learned counsel pointed out that not only the legal dues of

Appellant had been paid, he had also been paid compensation which has

been accepted by him without any demur except the provident fund dues

and, thus, it was not open to him to take a different stand before the

Tribunal.

The Act was enacted not only for recognition of trade unions but also

prevention of unfair labour practices. What is an 'unfair labour practice' has

been defined in Section 26 of the Act to mean all the practices listed in

Schedules II, III and IV. Section 27 of the Act prohibits engagement of an

employee by any employer or union in any unfair labour practice. Section

28 provides for procedure for dealing with complaints relating thereto.

Schedule IV of the Act enumerates general unfair labour practices on the

part of the employers. Clause 6 of Schedule IV of the Act reads as under:

"6. To employ employee as "badlis", casuals or

temporaries and to continue them as such for

years, with the object of depriving them of the

status and privileges of permanent employees."

The question as to whether an employee had intermittently been

engaged as casual or temporary for a number of years is essentially a

question of fact. The issue as to whether unfair labour practices had been

resorted to by the employer or not must be judged from the entirety of the

circumstances brought on records by the parties.

Only because an employee has been engaged as a casual or temporary

employee or that he had been employed for a number of years, the same by

itself may not lead to the conclusion that such appointment had been made

with the object of depriving him of the status and privilege of a permanent

employee. Unlike other statutes, the employer does not have any statutory

liability to give permanent status to an employee on completion of a period

specified therein. What is, therefore, necessary to be considered for drawing

an inference in terms of the said provisions would be to consider the entire

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facts and circumstances of the case.

A finding of fact has been arrived at, keeping in view the nature of

engagement offered to Appellant by Respondent, by the Tribunal. The

burden to prove that Respondent resorted to unfair labour practice

indisputably was on the workman. There had been breaks in service but

then it has rightly been held that the same were not artificial ones.

Requirement to employ employees on a temporary basis is writ large on the

face of the nature of the project undertaken by Respondent. There was

nothing on record to show that it had been getting contract on regular basis.

We have perused the charts filed by the parties herein wherefrom it appears

that the contract awarded in favour of Respondent by its various clients had

not only been in different parts of the country but also outside the country.

It has also not been disputed before us that although the name of Appellant

used to be recommended by the Head Office of Respondent but for

employing him, a telegram used to be sent from the site office, in response

whereto he would report at the place specified in the telegram and would be

offered appointment in the prescribed proforma as noticed supra.

The period of employment had all along been commensurate with the

period of work undertaken by Respondent under the respective contracts. It

may be a small contract or it may be a big one. Period of contract in each

case was indeed bound to be different. Each site office of Respondent \026

Company is also a separate establishment.

It has furthermore not been denied or disputed that services of the

employees engaged on such terms would come to an end on completion of

the period of contract. Such retrenchment would come within the purview

of Section 2(oo)(bb) of the Industrial Disputes Act. Once the period of

contract was fixed and the same was done keeping in view the nature of job,

it cannot be said that the act of the employer in terminating the services of

Appellant was actuated by any malice. Such an act on the part of the

employer cannot be said to have been resorted to for defrauding an

employee. The object of such temporary employment was bona fide and not

to deprive the concerned employee from the benefit of a permanent status.

We, having regard to the fact situation obtaining herein, cannot infer that the

findings of the Tribunal as also the learned Single Judge of the High Court

were manifestly erroneous warranting exercise of our extraordinary

jurisdiction under Article 136 of the Constitution of India.

It is not the law that on completion of 240 days of continuous service

in a year, the concerned employee becomes entitled to for regularization of

his services and/ or permanent status. The concept of 240 days in a year was

introduced in the industrial law for a definite purpose. Under the Industrial

Disputes Act, the concept of 240 days was introduced so as to fasten a

statutory liabilities upon the employer to pay compensation to be computed

in the manner specified in Section 25-F of the Industrial Disputes Act, 1947

before he is retrenched from services and not for any other purpose. In the

event a violation of the said provision takes place, termination of services of

the employee may be found to be illegal, but only on that account, his

services cannot be directed to be regularized. Direction to reinstate the

workman would mean that he gets back the same status.

In Madhyamik Siksha Parishad, U.P. v. Anil Kumar Mishra and

Others etc. [AIR 1994 SC 1638 : (2005) 5 SCC 122], this Court has

categorically held:

"\005The assignment was an ad hoc one which

anticipatedly spent itself out. It is difficult to

envisage for them the status of workmen on the

analogy of the provisions of the Industrial Disputes

Act, 1947, importing the incidents of completion

of 240 days' work. The legal consequences that

flow from work for that duration under the

Industrial Disputes Act, 1947, are entirely different

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from what, by way of implication, is attributed to

the present situation by way of analogy. The

completion of 240 days' work does not, under that

law import the right to regularisation. It merely

imposes certain obligations on the employer at the

time of termination of the service. It is not

appropriate to import and apply that analogy, in an

extended or enlarged form here."

In M.P. Housing Board v. Manoj Shrivastava [(2006) 2 SCC 702],

this Court held:

"It is now well settled that only because a person

had been working for more than 240 days, he does

not derive any legal right to be regularised in

service. (See Madhyamik Shiksha Parishad, U.P.

v. Anil Kumar Mishra; Executive Engineer, ZP

Engineering Divn. v. Digambara Rao; Dhampur

Sugar Mills Ltd. v. Bhola Singh; Manager,

Reserve Bank of India v. S. Mani and Neeraj

Awasthi)"

The learned senior counsel placed strong reliance upon a decision of

this Court in Chief Conservator of Forests and Another v. Jagannath Maruti

Kondhare and Others [(1996) 2 SCC 293] wherein this Court was

considering the question of appointment of a person in the social forestry

services. The Bench inter alia noticing the decisions of this Court in State of

Haryana v. Piara Singh [(1992) 4 SCC 118] opined that they are entitled to

regularization of services. Piara Singh (supra) has since been overruled by a

Constitution Bench of this Court in Secretary, State of Karnataka and Others

v. Umadevi [(2006) 4 SCC 1]

It may, however, be noticed that in Chief Conservator of Forests

(supra) the employer was the State. Respondent therein used to be employed

at the same place by the Conservator of Forests for the same purpose year

after year and in that factual matrix, it was opined:

"We have given our due thought to the aforesaid

rival contentions and, according to us, the object of

the State Act, inter alia, being prevention of certain

unfair labour practices, the same would be

thwarted or get frustrated if such a burden is

placed on a workman which he cannot reasonably

discharge. In our opinion, it would be permissible

on facts of a particular case to draw the inference

mentioned in the second part of the item, if badlis,

casuals or temporaries are continued as such for

years. We further state that the present was such a

case inasmuch as from the materials on record we

are satisfied that the 25 workmen who went to the

Industrial Court of Pune (and 15 to the Industrial

Court, Ahmednagar) had been kept as casuals for

long years with the primary object of depriving

them of the status of permanent employees

inasmuch as giving of this status would have

required the employer to pay the workmen at a rate

higher than the one fixed under the Minimum

Wages Act. We can think of no other possible

object as, it may be remembered, that the

Pachgaon Parwati Scheme was intended to cater to

the recreational and educational aspirations also of

the populace, which are not ephemeral objects, but

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par excellence permanent. We would say the same

about environment-pollution-care work of

Ahmednagar, whose need is on the increase

because of increase in pollution. Permanency is

thus writ large on the face of both the types of

work. If even in such projects, persons are kept in

jobs on casual basis for years the object manifests

itself; no scrutiny is required. We, therefore,

answer the second question also against the

appellants."

Our attention was also drawn to Union of India and Others v.

Ramchander and Another [(2005) 9 SCC 365] wherein again engagement of

the workman on a regular basis for a period of 89 days on each occasion was

held to be impermissible in law stating:

"The respondents were appointed against casual

labourers but nevertheless they continued in

service for four spells and that too their

reappointments were made immediately within a

few days of termination on completion of 89 days.

It shows that sufficient work was available with

the employer and had there been no termination on

completion of 89 days, they would have completed

240 days of continuous employment. In that view

of the matter the appellants had violated Section

25-G of the Industrial Disputes Act. We do not

find any error or illegality in the decision rendered

by the Division Bench. We direct the appellants to

re-employ the respondents as daily-wagers\005"

In that case, this Court did not lay down any law having universal

application. Directions were issued in the facts and circumstances of the

case. It is worthwhile to note that this Court did not direct regularisaton of

services of the workman but merely directed Appellants therein to reemploy

Respondents as daily wagers. The said decision, therefore, does not have

any application in the instant case.

Yet again, reliance has been placed on Haryana State Electronics

Development Corporation Ltd. v. Mamni [2006 5 SCALE 164 : (2006) 9

SCC 434] wherein having regard to the fact situation obtaining therein the

action on the part of the employer to terminate the services of an employee

on regular basis and reappoint after a gap of one or two days was found to be

infringing the provisions of Section 25-F of the Industrial Disputes Act.

This Court held:

"In this case the services of the respondent

had been terminated on a regular basis and she had

been re-appointed after a gap of one or two days.

Such a course of action was adopted by the

Appellant with a view to defeat the object of the

Act. Section 2(oo)(bb) of the Industrial Disputes

Act, 1947, therefore, is not attracted in the instant

case."

Unlike the Act, there is no provision for prevention of unfair labour

practices under the Industrial Disputes Act. The view of the High Court as

upheld by this Court, merely negatived a contention that such appointment

came within the purview of Section 2(oo)(bb) of the Industrial Disputes Act.

This Court noticed various decisions rendered by it as regards payment of

backwages and in stead and place of reinstatement in service, compensation

was directed to be paid.

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In Buddhi Nath Chaudhary and Others v. Abahi Kumar and Others

[(2001) 3 SCC 328] wherein again reliance has been placed by the learned

counsel, has no application in the facts and circumstances of this case.

We, therefore, do not find any reason to differ with the findings of the

High Court.

We may, however, notice that this Court by an order dated 12.5.2006

observed:

"It is seen from the papers placed before

us that the worker, the petitioner herein, was

in employment with the respondent M/s. Siemens

Ltd. from 22/5/1978 to 10.5.2000. The chart has

also been placed before us showing the order of

appointment, period of work, days worked and

total days in a year. It is seen from the Chart that

the petitioner was appointed on several times and

terminated on a number of occasions with some

break. The petitioner was terminated from

service on 10.5.2000. Since the petitioner was in

employment with the respondent herein from 1978

to 2000, we feel that the Management may

reconsider the plea of the petitioner on

sympathetic grounds and provide employment

in the same or different project. The petitioner

will not claim any back wages if the Management

provides some suitable employment in any of the

projects. The learned counsel for the

Management, respondent herein, submits that

he will ascertain from the respondent and

report to this Court after summer vacation."

The learned counsel appearing on behalf of Respondent, however,

states that it is not possible for his client to offer any employment to

Appellant as it has not been executing any contract job itself any more.

According to it, it is not economically viable to appoint an employee on

permanent basis and the work is now depleting. Our attention was further

drawn to the following statements made in this behalf:

"\005Engineering & Field Services Department has

since discontinued engagement of direct workmen

of the profile of the Petitioner at project site/s as an

outcome of re-engineering process and has started

outsourcing the said jobs in view of the

competitive advantage in terms of economy of

operation and flexibility it offers. Also in view of

the complexity involved in execution of the project

execution job combined with the demands of client

demanding engagement of personnel with formal

qualification including the higher qualification viz.

BE, DEE, NCTVT, it is not possible for the

Company to engage people of the Petitioner's

profile anymore."

Mr. Rele, learned senior counsel, however, submitted that although

Appellant had been engaged on contract basis, Respondent was not averse to

using its good office with the contractors to see that he is engaged by it on

the site where work is going on. An affidavit in this behalf has been filed

before this Court stating:

"As stated in the counter affidavit that the

Engineering & Field Services Department of the

company has since discontinued engagement of

direct workmen of the profile of the petitioner at

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the project sites and that the Company has started

outsourcing the said jobs, therefore, I talked to

M/s. JT Engineering, proprietor Mr. John Thomas,

having its office at Standard CHS, 301, A Wing,

Plot No. 394, Lokmanya Nagar, Panvel Pin

410206 one of our contractors, who are handling

the work of installation/ erection of equipment

currently at Enercon Ltd., Windfarm Project at

Ahmednagar, Maharashtra and the said contractor

has agreed to engage the petitioner at this site viz

Enercon Ltd., Ahmednagar, Maharashtra. The said

contractor has further agreed to pay the following

emoluments to the petitioner : -

(a) Basic Pay Rs. 7500/- pm

(b) Allowances Rs. 2500/- pm

Total = Rs. 10000/- pm"

We, therefore, while dismissing the appeal must express our

satisfaction that Respondent has been able to provide some succour to

Appellant.

For the views we have taken, we are of the opinion that there is no

merit in this case. The appeal is dismissed. No costs.