- (1.) The challenge in the present writ petition is to the award dated 3.9.2013 (Annexure P/3) whereby the Labour Court, Bathinda has declined the reference of the petitioner-workman on the ground that he had failed to show that he had completed 240 days preceding his termination in a calendar year. Counsel for the petitioner has vehemently argued that the Labour Court was in grave error since the case of the petitioner was not only violation of Section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act") but also violation of provisions of Sections 25-G and 25-H of the Act since the juniors have continued, though the services of the petitioner-workman have been dispensed with on 6.1.1996. It is accordingly contended that in view of the provisions of Sections 25-G and 25-H, the principle of last come first go was to be followed and the offer of re-appointment was to be given first to the petitioner as per provisions of Section 25-H of the Act.
(2.) After hearing counsel for the petitioner, this Court is of the opinion that there is no merit in the submission of counsel for the petitioner. Specific case of the respondent-management was that it was a case of contract coming to an end on the completion of 89 days since the petitioner had been appointed as Pharmacist from 10.10.1995 to 6.1.1996. After completion of said 89 days, he was relieved from duties, therefore, provisions of Section 2(oo)(bb) of the Act would be attracted. There is no quarrel with the said proposition that the provisions of Section 2(oo)(bb) of the Act provide for an exception clause that in case of non-renewal of contract of the employment between the employer and the employee it would not amount to the definition of retrenchment. Sections 25-G and 25-H uses the word 'retrenchment' and therefore, in view of exclusion clause no benefit can be granted to the petitioner. The Hon'ble Apex Court in Municipal Council Samrala v. Raj Kumar, 2006 3 SCC 81: examined the provisions of the said section and held that it contemplates two parts and under the second part, the contract of employment could be terminated under the stipulation contained. Relevant portion of the judgment read as under: 10. Clause (oo)(bb) of Section 2 contains an exception. It is in two parts. The first part contemplates termination of service of the workman as a result of the non-renewal of the contract of employment or on its expiry; whereas the second part postulates termination of such contract of employment in terms of stipulation contained in that behalf. The learned Presiding Officer of the Labour Court as also the High Court arrived at their respective findings upon taking into consideration the first part of Section 2(oo)(bb) and not the second part thereof. The circumstances in which the respondent came to be appointed have been noticed by us hereinbefore. 11. The appellant is a Municipal Council. It is governed by the provisions of a statute. The matter relating to the appointment of employees as also the terms and conditions of their services indisputably are governed by the provisions of the relevant Municipal Act and/or the rules framed thereunder. Furthermore, there is no doubt that the matter relating to the employment in the Municipal Council should be governed by the statutory provisions and thus such offer of appointment must be made by a person authorised therefor. The agenda in question was placed before the Executive Council with a view to obtain requisite direction from it wherefor the said letter was written. The reason for such appointment On contract basis has explicitly been stated therein, namely, that one post was vacant and two employees were on leave and in that view, of the matter, services of a person were immediately required in the Council. Thus, keeping in view the exigency of the situation, the respondent came to be appointed on the terms and conditions approved by the Municipal Council. . We have noticed hereinbefore that the respondent understood that his appointment would be short-lived. He furthermore understood that his services could be terminated at any point of time as it was on a contract basis. It is only in that view of the matter, as noticed hereinbefore, that he affirmed an affidavit stating that the Municipal Council of Samrala could dispense with his services and that they have a right to do so.
(3.) The respondent-management had acted as per the terms of the contract inter se the parties and the contract came to an end on the basis of 89 days. In such circumstances, it cannot be said that the petitioner is entitled for any protection under the provisions of Section 25G and 25H of the Act as there was no retrenchment of the petitioner. Accordingly, there is no ground to exercise discretion under Article 226 of the Constitution of India and the present writ petition is dismissed in limine.;