Shailendra Nath Shukla And Others v. Vice-Chancellor, Allahabad University And Others

R.M Sahai, J.:— Daily Wagers of Allahabad University working continuously for last five years without any break, mainly in its Library section, have invoked extra-ordinary jurisdiction of this Court against termination of their services by the Librarian as invalid and void since they, having worked for more than 240 days became regular employees whose services could not be dispensed with except in accordance with procedure provided under Industrial Disputes Act (hereinafter referred to as the Act).

2. In the initial stages of arguments attempt was made to dispute applicability of the Act to University but later on it was given up, therefore, controversy narrowed down if termination of petitioners' service did not amount to retrenchment within meaning of clause (oo) of section 2 of the Act as it had come to an end because of expiry of term of contract entered between University, the employers and petitioners, the employees, as provided in subclause (bb) of clause (oo) added in 1984.

3. That termination of service of a workman who has worked for not less than 240 days within a period of 12 months immediately preceding the date of termination without paying retrenchment compensation or following procedure provided under law is void which entitles a workman not only to reinstatement but also to a declaration for continuing in service with back wages is settled beyond dispute. Therefore, defence was two fold one factual and other legal. It was urged that petitioners were not in continuous service. But that stands belied by various orders issued from time to time, and absence of specific avernment establishing break in service in respect of any petiitoner. In fact the plea had legal overtone as it was urged that contract of employment was renewed every quarter or six months, therefore, every expiry of stipulated period of agreement resulted in break of service.

4. From this flowed the principal submission as well namely services of petitioners being contractual and the contract of employment having been renewed every third or six month they could not claim to have acquired status of regular, permanent or even temporary employee as their services came to an end automatically after expiry of the term for which they were appointed. Reliance was placed on sub-clause (bb) of clause (oo) of section 2 of the Act and it was urged that termination of service of a workman because of non renewal of contract or expiry of the term stipulated in agreement as was in case of petitioners, could not be deemed to be retrenchment, as such petitioners, were not entitled to claim any protection under the Act. It was also urged that since petitioners were working against posts which had not been sanctioned their status was of irregular employees who did not acquire any status either under Statute framed by University or the Act, consequently they were not entitled to invoke the jurisdiction under Article 226 of this Court.

5. Section 2(oo) of the Act reads as under—

“retrenchment” means the termination by the employer of the service of a workman for any reason, whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include—

(a) voluntary retirement of the workman; or

(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or

(bb) termination of the service of the workman as a result of nonrenewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or

(c) termination of the service of a workman on the ground of continued ill-health”

6. The expression, ‘termination for whatsoever reason’ used in clause (oo) came up for interpretation before Supreme Court in State Bank of India v. N.S Money(1). It was held to mean a termination which takes place either by active step of employer or by running out of stipulated period. The Hon'ble Court observed, ‘Termination embraced not merely the act or termination by the employer but the fact of termination, [however, produced; since this wide interpretation resulted in extending benefit of retrenchment to even those workmen who were engaged for a specific purpose or particular job or were causal workers the Legislature appears to have added sub-clause (bb) clause (oo) in 1984. Even though petitioners claim to have acquired status of regular employees before the clause was amended as each of them had completed 240 days prior to its addition 1984 it may be examined if the petitioners can be said to be contractual employees as contemplated in this sub-clause. For that it is necessary to examine its scope and ambit. It may, however, be stated at the outset that it obviously attempts to exclude that which otherwise would have been included in principal clause or to be more precise is in the nature of an exception, therefore, it has to be construed strictly and in favour of Workmen as the entire objective of the Act is to secure just and fair deal for them. Terminations which are included in it are those which are brought about either because of non renewal of contract or because of expiry of time stipulated in agreement. The meaning is plain and simple. But in a society with so wide gap where bargaining power of employee is nil who is exposed to exploitation the nature of employment cannot be judged on the letter issued by the employer but on the nature of duties performed. For instance workers employed for doing a particular job which may be for more than 240 days can be said to be covered by this clause as their engagement comes to an end because of completion of work. Similarly a workman employed for a stipulated period or completion of work which ever may be earlier may be covered in this clause. But if contractual employment is resorted to as mechanism to frustrate the claim of employee to become regular or permanent against a job which continues to the nature of duties are such that the colour of contractual engagement is given to take it out from the principal clause then such agreements shall have to be tested on anvil of fairness and bona fide. An agreement for arm twisting or to prpetuate the policy of hire and fire cannot be deemed to be included in clause (bb). Because if it is left to employer not to renew contract whenever ha likes irrespective of any circumstance then the protection afforded to a workman by treating every termination of service as retrenchment shall be rendered nugatory. It has to b??? confined to those limited cases where either the work or post…. to exist or job comes to an end or the agreement for a specific period was bona fide. It cannot be extended to such cases where the job continues the employees work is also satisfactory but periodical renewals are made to avoid regular status to the employees. That would be unfair labour practice (See H.D Singh v. Reserve Bank of India. (2) From various annexures filed with affidavits it is clear that some of petitioners were employed as Office Assistant, other bookbinders and peons. They were awarded benefit of bonus. They have been working for nearly five years. Their job was not casual, seasonal or of a daily worker. They have not been paid their salary on volume of work. Although the wages in some cases are computed on per day basis but the payment is monthly including holidays. Their duty, therefore, was like a regular employee and not as casual, daily or seasonal worker.

7. In the counter-affidavit there is no whisper that the posts have come to an end. It could not have been as clear from letter dated 1.2.1986 sent by the Librarian to the Vice Chancellor, copy of which has been filed as Annexure I to the rejoinder affidavit intimating him that at least seven persons were needed and he was appointing two of them immediately. Therefore, it amounts to asking one set of persons working for nearly four to five years to vacate to accommodate others. Such termintion of service can be considered nothing but unjust and unfair. Further it has been pointed out that daily wagers employed by the University after petitioners have been regularised on pretext that they were appointed against sanctioned posts. It is not disputed. It appears to be unsustainable. A daily wager employed in Library section of the University or in the Registrar's office or in any other department is a daily wager of the University and not of the department. A distinction may arise where a daily wager is employed for some technical job. But otherwise the nature of work being same it cannot be claimed that their appointment and its regularisation has to be departmentwise. If “A” was appointed as daily wager in one department and a regular post was created or was existing in the department or it became vacant then it has a right to that post as compared to new incumbent unless the nature of duties are technical which cannot be performed by him.

8. Lack of sanction for the posts also does not appear to have any relevance. Employing petitioners for five or six years and then dispensing with their services for lack of sanction without any material to establish that effort was made but it did not succeed cannot be appreciated. How can an employee know if he is paid from general account of the University or University Grant Commission Book grant. The appointment letters do not establish it. One could appreciate if the University would have written to the government for sanction of posts and government would have refused. On the other hand it terminated the services and claims that there was no sanction and the Vice-chancellor was not willing to pay from general accounts and yet it is going ahead for seven appointments immediately of another set of persons of course. It is being unreasonable and discriminating.

9. Further it is admitted that one Sri S.B Pandey who was a daily wager and whose services were terminated has been absorbed in the Registrar's office even though he was much junior and had worked hardly for one year. But what is urged is that it was not irregular and petitioners had no right to continue. Sri J.B Pandey and petitioners being daily wagers formed one class. From that group the opposite party could not pick up one for favoured treatment. Their action was discriminatory. The venom of arbitrariness spreads not because petitioners had no right but because Sri Pandey too had no right and yet favour was showered on him.

10. From whatever aspect it is examined the impugned orders cannot be sustained. What relief then should be granted to petitioner. In Rajendra Kumar v. Delhi Administration, (3) it was held that aggrieved persons should be reinstated with all benefits. Further since it has been averred that there are no sanctioned posts it appears expedient to direct opposite party to write to government for the same which may be examined by government expeditiously. The opposite party should further maintain a common list of daily wagers working in the University for purposes of absorption seniority and promotion.

11. In the result this petition succeeds and is allowed. The order dated 22.3.1986 terminating services of petitioners is quashed. They shall be reinstated. Parties shall bear their own cost.