JUDGMENT

1. - Award dated July 23, 1993 passed by the Labour Court, Rajasthan, Jaipur, in Case No. LCR 413 of 1989 has been challenged in this writ petition. The petitioner has prayed that the said award be quashed and set aside.

2. The facts of the case are that respondent No. 1, Babu Lal Sharma, was appointed as driver in the service of the Rajasthan State Road Transport Corporation Ltd. on August 23, 1986. His service was terminated on January 8, 1987. He was again appointed as driver on daily wages basis with effect from May 11, 1987. Once again his service was terminated on April 19, 1988. A dispute was raised by the transport workers' union against the termination of service of respondent workman. When the parties failed to arrive at a settlement. Conciliation Officer submitted a failure report to the Government. Thereafter, the Government issued notification dated October 26, 1989 in exercise of its power under Section 10(1)(c) of the Industrial Disputes Act, 1947 and made a reference of the dispute to the Labour Court, Jaipur. It was pleaded on behalf of the workman that he had completed more than 240 days of work in a period of 12 months immediately preceding the date of termination of his service and that before bringing about an end of the service of the workman, provisions of Section 25F of 1947 Act as well as Rules 77 and 78 had not been complied with. Another plea raised on behalf of the workman related to violation of Section 25N of 1947 Act. The employer contested the claim made on behalf of the workman by alleging that the workman had not served regularly between August 23, 1987 to April 19, 1988. His service had been terminated because he was rendered surplus. Babu Lal examined himself and stated before the Labour Court that he had served for more than 240 days in a period of 12 months during the year 1986-87. Shri R.K.S. Jodha appeared on behalf of the employer and stated that the workman had worked for less than 240 days and that for this reason notice and retrenchment compensation had not been given to him. After taking into consideration the rival pleadings of the parties and the evidence, the Labour Court held that the workman had proved the factum of his having worked for a period of 240 days in a period of 12 months immediately preceding the date of termination of his service and that the provisions of Section 25F were violated by the employer. The Labour Court rejected the plea raised on behalf of the employer that termination of service of the petitioner did not fall within the ambit of the term "retrenchment" under Section 2(oo) of the 1947 Act. The Labour Court held that the work against which the workman had been engaged had been continuing and the Corporation had not been closed. It also rejected the plea of the employer that the employees had no right to represent the workman (sic) and that the workman was not entitled to back wages.

3. In support of the writ petition, Shri Manish Bhandari, learned counsel for the petitioner, has argued that the finding recorded by the Labour Court regarding the workman having worked for more than 240 days in a period of 12 months is factually incorrect. Shri Bhandari submitted that the workman had in fact worked for 234 days in a period of 12 months. According to Shri Bhandari, the Labour Court has ignored the statement filed before it by the employer. This argument of Shri Bhandari cannot be accepted for various reasons which are set out hereunder: In the statement of claim submitted on behalf of the workman it was specifically pleaded that the workman had worked under the employer for a period of more than 240 days in one calendar year. To this, the employer replied by a bald assertion that the statement made in the claim petition was incorrect. No specific denial of the workman having served for more than 240 days was made by the employer. Shri R.K.S. Jodha, who appeared as a witness on behalf of the employer, has admitted that the workman had served between May 11, 1987 to April 14, 1988. He, however, did not produce any evidence to show that during this period the workman had not served for 240 days. Being employer of the workman it was the duty of the petitioner to have produced the record which was in its possession showing the actual period of working of respondent No. 1. From a perusal of the award it is clear that even Annexure 2 was not placed before the Labour Court. That apart, mere placing of a statement was not sufficient. It was the duty of the employer to have produced before the Labour Court the original record relating to the work done by the employee. Failure of the employer to produce the record shows that the employer did not want to produce that record which could throw light on the period of actual working of the workman. Therefore, the Labour Court has not committed any illegality in taking the view that between May 11, 1987 to April 19, 1988 the workman had rendered more than 240 days of service. Moreover, a Division Bench of this Court has in Murari Lal v. Rajasthan State Road Transport Corporation (1993) WLR 65 held that a person employed in the service of the Rajasthan State Road Transport Corporation is entitled to have Sundays and other holidays counted for the purpose of computation of 240 days service as envisaged in Section 25B of the 1947 Act.

4. Another argument of Shri Bhandari is that termination of the service of the workman does not fall within the ambit of Section 2(oo) and it falls within the ambit of Section 2(oo)(bb). Shri Bhandari submitted that when it was not a case of retrenchment, the employer was not required to give notice and retrenchment compensation as contemplated by Section 25F.

5. After having given my thoughtful consideration to the submission of Shri Bhandari, I find myself unable to accept the same. Section 2(oo) no doubt excludes from the definition of "retrenchment" cases of termination of service by efflux of time and by non-renewal of contract of service. However, in the case of termination of service in accordance with the conditions stipulated in the order of appointment is not excluded from the purview of Section 2(oo) of the Act. Section 2(oo)(bb) was added by the Industrial Disputes (Amendment) Act No. 49 of 1984 in order to make an inroad in the proposition of law laid down in State Bank of India v. N. Sun-daramoney (1976-I-LLJ-478) (SC) : 1976 - II L.L.N. 5 , and other subsequent cases. The effect of insertion of Section 2(oo)(bb) is that now the termination of service which takes place by efflux of time or non-renewal of contract of employment are not covered by the definition of the term "retrenchment". An employee appointed for a fixed term cannot now claim that his service has been terminated by way of retrenchment, merely because his service comes to an end with the expiry of the term or where the employer does not renew the contract of employment. In Saiyed Bin Ali v. Superintending Engineer, (1986) Lab I.C. 848 B.P. Jeevan Reddy, J., (as he then was) the Andhra Pradesh High Court held that automatic termination of service in terms of Regulation 28(3) of the Andhra Pradesh Electricity Board Service Regulations amounts to retrenchment under Section 2(oo). In a large number of cases involving striking out of the name from the rolls in terms of the contract of employment, different courts have held that such action of the employer amounts to retrenchment of service of the employee within the meaning of Section 2(oo). It is, therefore, reasonable to hold that merely because the service of the petitioner has been terminated by the employer in accordance with the conditions incorporated in the order of appointment that his service is liable to be terminated at any time without notice, it cannot be treated to be a case covered by Section 2(oo)(bb). The petitioner's case cannot be considered to be a case of termination of service by efflux of time or on account of cessation of the work as is the case of Famine Relief work or fixed term project.

6. No other point has been argued.

7. For the reasons mentioned above, I do not find any substance in the writ petition and it is hereby dismissed.

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