Prakash Tatia, A.C.J. and H.C. Mishra, J. - (1.) HEARD learned Counsel for the parties;
(2.) THE Union of India as well as the workmen both are aggrieved against the order passed by the learned Single Judge dated 7th July, 2003 in C.W.J.C. No. 2406 of 1997 (R) whereby the learned Single Judge upheld the award dated 1st May, 1997 passed in Reference Case No. 51 of 1993, wherein it has been held that action of the employer in terminating the services of Naresh Jha and 27 others with effect from 1st July, 1992 is not justified and the workmen are entitled to be reinstated and regularized from that date together with 40% of back wages and other benefits. The learned Single Judge after considering the arguments of the parties held that there is no illegality in the award passed by the Labour Court in paragraph -25 of the impugned order. However, thereafter it has been observed that the workmen were entitled to reinstatement but in view of the judgment of the Hon'ble Supreme Court delivered in the case of S.M. Nilajakar & 61 others v. Telecom. District Manager, Karnataka : 2003 (97) FLR 608 (SC) the award needs to be modified and the learned Single Judge modified the award by giving liberty to the employer to reinstate and thereafter if there is no need of these workmen in other project then they may by following the provisions of law retrench the services of the above 28 employees. The employer is aggrieved because of the award passed to reinstate the employees, may be in the same Project or in any other Project, on the ground that the workmen were engaged in a Project of UNDP and their services came to an end in terms of the condition contained in the contract of employment itself and, therefore, the termination of services of the workmen were not a retrenchment, in view of section 2(oo)(bb) of the Industrial Disputes Act, 1947. Whereas the workmen contention is that once the learned Single Judge has upheld the award, it could not have allowed or should not have observed to allow for retrenchment, or termination of the services of the workmen upon finding that there is no need of the workmen in any other project of the employer. According to the learned Counsel for the workmen, when termination was found illegal by the Labour Court then natural consequences should have followed and the award could not have been modified under presumption that there will be no work left for these workmen or for any other reason. On the other hand, learned Counsel for the employer contention is that the documents placed on record clearly show that it was an appointment given in Project and, therefore, the Tribunal as well as the learned Single Judge wrongly held that it was a case of violation of section 25 -F or it is a case of section 25 -G and 25 -H.
(3.) WE have considered the submissions of the learned Counsel for the parties and perused the entire record. As per the Annexure -3 dated 5th November, 1988, it is apparent that the workmen were offered job in a UNDP Project on casual engagement on daily rated basis as unskilled/skilled job only and it was made very clear that the appointment shall be purely temporary and it will not carry any claim or right in future for any regular appointment in the Company. Not only this, it was also made clear that the employee shall have to report for duty to the Officer -in -charge, UNDP Project on Modeling and Control of Water system in Coal Mining environment, Lalamatia. This fact is not in dispute that the employment was under a Project of the UNDP and 100% funded by UNDP and in the said Annexure, in column No. 6 it is clearly mentioned that the nature of appointment shall be temporary under UNDP Project. The management well before end of project took decision to discontinue the services of workmen engaged in the project which is evident from Annexure -4. The Annexure -4, which is a confidential minutes of the employer, says as under : The UNDP Project is terminating on 30.6.1992. Therefore, the services of all those who engaged and listed below against this project are to be discontinued with effect from 30.6.1992 (A.N.): In this Annexure -4, there is a name of 28 workmen who are before us as workmen. This document clearly indicates that a decision was taken by the employer to discontinue the services of the workmen engaged under the offer given by Annexure -3 referred above. It is also admitted case that after 30th June, 1992 i.e., from 1st July, 1992 the workmen were not allowed to do the job on the basis of which they were given appointment under the said Project. Therefore, the employer acted only in accordance with the terms of contract of appointment, that too, which was under the project totally funded by the UNDP.;