TaxTMI 
TaxTMI 
2006 (11) TMI 725
X X X X Extracts X X X X
X X X X Extracts X X X X
....lled and unskilled workers. Appellant had been appointed by Respondent on temporary basis for duration of the project/ site work and on completion thereof his services used to be terminated. Indisputably, Appellant used to be employed almost on a regular basis since 1978. His services were availed by Respondent not only for its various projects in India but also in Iraq. 3. Procedure followed for availing the services of Appellant by Respondent had been that whenever such contract was obtained and project work started at the instance of the Head Office, a telegram used to be sent to him for availing his services whereupon he was asked to join the site office. Appointment letters used to be issued by the said office were in a prescribed proforma, the relevant portion from a sample copy whereof reads as under: LETTER OF APPOINTMENT FOR TEMPORARY PERSONNEL Name : Mrs. R. Gangadharan Pillai Roll No. : 133 Local Address : Room No. 148/4, Indhira Nagar, Chambur, Bombay-74 Permanent Address : Saraswati Vilasm Ezhlcon P.O. Anitose, Kerala Date of Birth : 22 Years Consolidated salary/Wages per Month : 200/- Date of Joining....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ate, the Complainant has not been in the employment of the Respondent. Therefore, no question arises of giving any direction to the Respondent company to confer any status and privileges of permanent employee on the Complainant. Besides if the Complainant has miserably failed to prove that the break in two appointments of the Complainant was "artificial break". The appointment letter placed on file manifest that the engagement of the Complainant was for a specific period as mentioned therein. Therefore, in my considered view, the substantial controversy emerging from the instant complaint has been in respect of alleged illegality on the part of Respondent company in terminating his services from 10.05.2000" It further came to the conclusion that the substantial controversy revolved round the termination of Appellant's services on 10.5.2000 and, thus, the same is required to be considered in terms of Item 1 of Schedule IV of the Act and not under Item 9 of Schedule IV thereof. It was observed: I may observe that the Complainant could have taken recourse to Section 32 of the M.R.T.U. & P.U.L.P Act, to make prayer before this Court to decide the controversy pertaini....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ly ancillary, and the learned Industrial Judge gave a finding that the commission regarding unfair labour practices was not proved. This order was challenged before the learned Single Judge of this Court and the learned Judge, on appreciation of the contentions raised, rejected the writ petition. The learned Single Judge had analysed the order passed by the Industrial Court and has observed as under: The Industrial Court, after hearing the parties on analysis of the materials on record while dismissing the complaint, has held that what has been reiterated in the complaint was that the complainant was engaged at various sites of the respondents after giving artificial breaks in the service. Then, the learned Single Judge has given a finding that in such circumstances, there is no question of adoption of an unfair labour practice and, therefore, declined to interfere under Article 227 of the Constitution. That being so, the Letters Patent Appeal, obviously, is not tenable. Even otherwise, we see no fault with the order impugned" 9. Mr. Colin Gonsalves, learned senior counsel appearing on behalf of Appellant, in support of this appeal would contend that in the ins....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n which has been accepted by him without any demur except the provident fund dues and, thus, it was not open to him to take a different stand before the Tribunal. 11. The Act was enacted not only for recognition of trade unions but also prevention of unfair labour practices. What is an 'unfair labour practice' has been defined in Section 26 of the Act to mean all the practices listed in Schedules II, III and IV. Section 27 of the Act prohibits engagement of an employee by any employer or union in any unfair labour practice. Section 28 provides for procedure for dealing with complaints relating thereto. Schedule IV of the Act enumerates general unfair labour practices on the part of the employers. Clause 6 of Schedule IV of the Act reads as under: 6. To employ employee as "badlis", casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent employees. 12. The question as to whether an employee had intermittently been engaged as casual or temporary for a number of years is essentially a question of fact. The issue as to whether unfair labour practices had been resorted to by the empl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....trenchment would come within the purview of Section 2(oo)(bb) of the Industrial Disputes Act. Once the period of contract was fixed and the same was done keeping in view the nature of job, it cannot be said that the act of the employer in terminating the services of Appellant was actuated by any malice. Such an act on the part of the employer cannot be said to have been resorted to for defrauding an employee. The object of such temporary employment was bona fide and not to deprive the concerned employee from the benefit of a permanent status. We, having regard to the fact situation obtaining herein, cannot infer that the findings of the Tribunal as also the learned Single Judge of the High Court were manifestly erroneous warranting exercise of our extraordinary jurisdiction under Article 136 of the Constitution of India. 15. It is not the law that on completion of 240 days of continuous service in a year, the concerned employee becomes entitled to for regularization of his services and/ or permanent status. The concept of 240 days in a year was introduced in the industrial law for a definite purpose. Under the Industrial Disputes Act, the concept of 240 days was introduced so as....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ervices. Piara Singh (supra) has since been overruled by a Constitution Bench of this Court in Secretary, State of Karnataka and Ors. v. Umadevi (2006) IILLJ 722 SC 18. It may, however, be noticed that in Chief Conservator of Forests (supra) the employer was the State. Respondent therein used to be employed at the same place by the Conservator of Forests for the same purpose year after year and in that factual matrix, it was opined: We have given our due thought to the aforesaid rival contentions and, according to us, the object of the State Act, inter alia, being prevention of certain unfair labour practices, the same would be thwarted or get frustrated if such a burden is placed on a workman which he cannot reasonably discharge. In our opinion, it would be permissible on facts of a particular case to draw the inference mentioned in the second part of the item, if badlis, casuals or temporaries are continued as such for years. We further state that the present was such a case inasmuch as from the materials on record we are satisfied that the 25 workmen who went to the Industrial Court of Pune (and 15 to the Industrial Court, Ahmednagar) had been kept as cas....
X X X X Extracts X X X X
X X X X Extracts X X X X
....egard to the fact situation obtaining therein the action on the part of the employer to terminate the services of an employee on regular basis and reappoint after a gap of one or two days was found to be infringing the provisions of Section 25-F of the Industrial Disputes Act. This Court held: In this case the services of the respondent had been terminated on a regular basis and she had been re-appointed after a gap of one or two days. Such a course of action was adopted by the Appellant with a view to defeat the object of the Act. Section 2(oo)(bb) of the Industrial Disputes Act, 1947, therefore, is not attracted in the instant case. Unlike the Act, there is no provision for prevention of unfair labour practices under the Industrial Disputes Act. The view of the High Court as upheld by this Court, merely negatived a contention that such appointment came within the purview of Section 2(oo)(bb) of the Industrial Disputes Act. This Court noticed various decisions rendered by it as regards payment of backwages and in stead and place of reinstatement in service, compensation was directed to be paid. In Buddhi Nath Chaudhary and Ors. v. Abahi Kumar and Ors. : [2001] 2 SCR 18....