Temporary/ Seasonal Employment Does Not Amount To ‘Unfair Labour Practice’: Allahabad High Court

In this case, the Petitioner was appointed on the post of temporary Clerk Grade-III in Respondent Company. Details of petitioner’s engagement are:

01.06.1994 to 07.01.1995 (221 days)

16.06.1995 to 07.01.1996 ((206 days)

14.04.1997 to 22.11.1997 (223 days)

The aforesaid same pattern continued for four years until 08.02.2000. Petitioner contented that artificial breaks in service were created so as to deter him from completing 240 days in continuous employment. Resultantly, he would not be entitled to become a permanent employee and consequential benefits under the Industrial Disputes Act, 1947.

Counsel for Petitioner contended that the company had adopted ‘unfair labour practices’ as defined under Entry No.10, contained in 5^th Schedule as per Section 2 (ra) of the Act.

“10. To employ workmen as “badlies”, casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.”

Accordingly, reference was made by Assistant Commissioner, Agra to the Industrial Tribunal which came to be dismissed by impugned award.

Before the High Court, Petitioner relied on Shankar Bhimrao Kadam & Ors. v. Tata Motors Limited where the Bombay High Court treated short term engagements (225 days, 236 days, 237 days, 238 days etc.) of the concerned petitioners to be “unfair labour practice”. It was pointed that defence of exigency of work was turned down by the High Court and an SLP against it was dismissed by the Supreme Court.

Counsel for Respondent Company, on the other hand, stated that the Assistant Commissioner, Agra had no authority to make such reference to the Industrial Tribunal. Further, petitioner was temporarily engaged as and when his services were required by the Company. Accordingly, extension of service was granted depending upon the labour requirements. It further argued that every appointment was independent in nature and whenever the services automatically ceased after the expiry of terms fixed under the letter of appointment, the petitioner never agitated any alleged rights.

Dealing with the issue of validity of reference made to the Tribunal, the Court perused the relevant notification and found that it was only Deputy Labour Commissioner, Agra who was competent to make a reference. Thus, it held that the Assistant Commissioner had no jurisdiction to make the reference. Hence, the order passed by the Presiding Officer was justified.

On merits, the High Court held that judgment in Shankar Bhimrao (supra) would not apply to this case since there, the Bombay High Court was dealing with a matter in which dozens of workmen had assailed the action of the employer. Further, the nature of appointment letters issued to the workmen were quite different from the one which was issued to the petitioner in the present case. Even otherwise, specific termination orders were passed in the case before the Bombay High Court whereas in this case services of the petitioner were co-terminus with the end of period stipulated in the appointment letters and no termination letter was issued which could fall within the definition of “retrenchment”.

“In view of the above discussion, this Court is of the firm view that the petitioner has failed to establish that it was a case of “unfair labour practices” as the nature of appointment offered to the petitioner and accepted by him would not be covered by Clause-10 of 5^th Schedule. Moreover, the said entry speaks of appointment of collective nature and not of individual nature as is apparent from use of words “workmen” and “them”. Therefore, the intention of the legislature is that the action of the Company in relation to appointment of all the workmen has to be examined so as to invoke Clause-10 of 5th Schedule and not the case of individual workman. Even if a contrary interpretation is accepted to the effect that a single workman can allege “unfair labour practice”, this case does not involve any such aspect,” said the Court.

Accordingly, the writ petition was dismissed.

Case Title: Dinesh Pal Singh and Anr. vs. Presiding Officer and 2 others [Writ C No. 30049 of 2016]

Case Citation: 2023 LiveLaw (AB) 207

Counsel For Petitioner: Vijai Krishna Agnihotri

Counsel For Respondents: C.S.C., Piyush Bhargava