Pratap Kr. Ray, J. - (1.) Heard the learned Advocates appearing for the parties. Instant application under Article 226 of the Constitution of India is directed challenging the award passed by the Central Government Industrial Tribunal at Calcutta on 2011 February, 1997 and published in the Gazette of Calcutta (Part-II), section 3(11) dated 29th March, 1997 in terms of reference No. 12 of 1994 whereby and whereunder Presiding Officer of the said Tribunal held that the action of the Management of Calcutta Port Trust terminating the service of Sri Asoke Hela, Sweeper working in the office of the Deputy Chief Engineer, River Training Wing with effect from 1sL April, 1992, was not justified and thereby held that Sri Hela would be deemed as in continuous service in the post, which he was holding on the date of termination and would be entitled to all the benefits that would be accrued to him as if the order of termination never was passed. The petitioner in this application is the Board of Trustees for the Port of Calcutta, a Body Corporate, constituted under the Major Port Trust Act, 1963. The facts leading to the writ application are as follows: Major Port Trust Act, 1963 hereinafter referred to, as said Act, govern the activities of the petitioner, which includes the rules and regulations for appointment of staff. Under section 23 of the said Act, the petitioner is required to have prior sanction of schedule of employees as would be necessary for proper maintenance and purpose of his activities. The schedule indicates designation and grades of the employees including their salaries, fees and allowances. Subject to previous sanction of the Central Government, designation and grades of the employees, their salaries, fees and other allowances are fixed. No post could be sanctioned and/ or created without complying with said section. The schedule of the employees covers all employees from the head of the department to the lowest rung of employees in the organisation of Calcutta Port Trust including permanent sweeper. In view of embargo under section 23 of the said Act, the petitioner had no power to appoint any permanent employee except appointment of temporary hands on the exigency of service for a specific period under any special or any temporary need and that too for specific terms. For the "comprehensive Project for Improvement of Draft in the River Hooghly" under the River Training Wing, petitioner required services of temporary sweeper and put up requisition to the local Employment Exchange for engagement of a sweeper on the temporary basis for a fixed period of time. After interviewing the candidates as referred to by the Employment Exchange, one Sri Asoke Hela, the respondent No. 2 herein, was appointed as a sweeper on 10th April, 1990 for a fixed period of three months. In the appointment letter, terms and conditions were stipulated, providing, inter alia, that the tenure of appointment -would be for three months and service of respondent No. 2 would automatically come to an end on and from the date when even prior to said three months tenure, the work or job for which respondent No. 2 was engaged would be considered as completed, and that the service would be terminated at any time by 24 hours notice from either side. As per said terms and conditions of the service, respondent No. 2 was put off from duties on 10th July, 1990. Subsequently, on 25th August, 1990 he was again employed on the said terms and conditions for a temporary period of two months on contractual basis. On completion of such terms, he was again engaged on 3rd November, 1990 for a further period of two months. Subsequently again by another Appointment Letter for a contractual period of three months under the said terms and conditions, respondent No.2 was appointed in terms of the Appointment Letter dated 11th February, 1992 for a specific period of three months. Prior to completion of such tenure of three months under clause 4 of the conditions of employment as laid down in the said Appointment Letter dated 11th February, 1992, services of respondent No. 2 was dispensed with on and from 1st April, 1992 by issuing a letter dated 31st March, 1992. The respondent No. 3, Haldia-Calcutta Port and Dock Sramik Union hereinafter refer to as said union on behalf of the respondent No.2 had taken up the matter alleging illegal termination from service and ultimately under section 10 of the Industrial Disputes Act, 1947, dispute was directed to be resolved namely on the issue whether such termination was justified or not and for necessary relief if it was not justified. Respondent No. 2 filed an application before the respondent No. 1, the Tribunal, on different allegations and a written statement was filed denying those allegations. Respondent No. 2 prayed for a declaration of permanent status in the service, which was objected to by the petitioner by contending, inter alia, that for specific periods and for a particular job when on contractual basis, the Appointment Letter was issued and when such job came to an end with effect from 30th June, 1992, there was no question of passing any order of reinstatement in service as the project was not at all existing and there was no post. It was the specific case of the petitioner before the Tribunal that under section 2(oo)(bb) of Industrial Disputes Act, 1947 (hereinafter refer to as I.D.Act), it was not a case of retrenchment, since the workman's service was terminated under clause 4 of the Appointment Letter, which provides service of 24 hours notice. It was further submitted that section 25F of I.D. Act had no applicability. Before the Tribunal, workman and an employee of the petitioner were examined. On adjudication of the matter, the Tribunal wrongly decided the issue by holding that the termination was attracted under section 25F of the said Act without considering the aspect of section 2(oo)(bb) of I.D. Act. Tribunal passed an award, which is under challenge in this writ application.
(2.) It is submitted by the learned Advocate for the petitioner by referring the appointment letter as annexed in the writ application that there was a specific clause being clause 4 whereby the petitioner was legally entitled to terminate the service by serving 24 hours notice and once it was done, the termination was lawful in terms of the appointment letter and it is attracted by section 2(oo)(bb) of I.D. Act. It is further submitted that learned Tribunal below did not at all consider this aspect of the matter and there is no whisper on that issue. It is submitted that learned Tribunal misdirected itself by considering the reference as a reference for absorption of the petitioner without taking notice of the Limitation of applicability of section 25F in certain contingencies as are stipulated under section 2(oo)(bb) of I.D. Act. It has been further submitted that as best the petitioner could have obtained relief for restoration of service till the period of contractual date and/or further till the date of completion of the project job. The impugned award accordingly as submitted by them is not legally sustainable as there was a gross error in decision making process.
(3.) Learned Advocate for the petitioner has referred the decision of Constitution Bench passed in the case Punjab Land Development & Reclamation Corporation Ltd. Chandigarh v. Presiding Officer, Labour Court, Chandigarh & Ors., reported in 1990(3) SCC 682 , to contend the purpose and intent of section 2(oo)(bb) of I.D. Act and thereby to submit that the said decision and its conclusion is squarely applicable in this case. Further reference has been made to the judgment passed in the case Madhya Pradesh Hasta Shilpa Vihas Nigam Ltd. v. Devendra Kumar Jain & Ors., reported in 1995(1) SCC 638 , wherein a temporary appointee in the Government Company when got order of termination, Apex Court held the same as valid. It is submitted that in the said case the only distinguishing feature was the use of the language in the Appointment Letter 'without notice or assigning any reason" whereas in the instant case, there is a specific clause in the letter of appointment "service is terminable on 24 hours notice.";