JUDGMENT J.C. Gupta, J.
1.By means of this writ petition, the petitioner, the employer, has prayed for quashing the award dated 6.5.1991 published on 5.10.1991 by the Labour Court (Vth), U. P., Kanpur, respondent No. 1.
2. Respondent No. 2 whose services were terminated with effect from 12.9.1988 by the petitioner raised an industrial dispute claiming that his services have been Illegally and arbitrarily terminated by the petitioner company and a reference was made under Section 4K of the U. P. Industrial Disputes Act, 1947 (hereinafter referred to as the Act) to the Labour Court. respondent No. I which was registered as Case No. 229 of 1988. Before the Labour Court, it was contended on behalf of the petitioner that respondent No. 2 was employed for a fixed period from 3.9.1988 to 30.9.1988 and it was clearly stated in the appointment letter that the appointment was purely temporary in nature and services were liable to be terminated at any time without notice and without assigning any reason. Since respondent No. 2 absented himself from Job with effect from 10.9.88 without any reason, his services being for a limited period were dispensed with effect from 12.9.88 and he had been paid salary till the date of termination of service. According to the petitioner, the respondent No. 2 was neither entitled to notice pay nor retrenchment compensation as it was a case of voluntary abandonment of employment. It was further stated that appointment of respondent No. 2 was purely temporary in nature to meet the exigencies of work or to fill up leave vacancies from time to time as no vacancy of permanent in nature was available in the employer's office at Kanpur.
3. Respondent No. 2 filed his written statement stating therein that he was appointed temporarily on substantive and permanent post of clerk-cum-typist initially on a consolidated salary of Rs. 750 per month and the initial appointment was from 1.10.87 to 31.10.87 which was extended from time to time. The work and conduct of respondent No. 2 had been efficient and his persistent demand to the management to desist from unfair labour practice and allow him for regular employment remained in vain and this seriously prejudiced and annoyed the management and, therefore, his services were abruptly terminated with effect from 12.9.98 without any rhyme and reason and without giving any notice pay or retrenchment compensation. According to his case the impugned termination order of the petitioner was illegal, arbitrary and violative of the provisions of Section 6N, Section 6P and Section 6Q of the Act. It was further pleaded that the management did not follow the principle of "first come last go" and he was afforded no opportunity of hearing and there has been violation of principles of natural Justice.
4. Before the Labour Court, parties adduced evidence and on a consideration thereof, the Labour Court repelled the petitioner's contention and made the impugned award dated 6.5.1991 holding that the termination of the services of the respondent No. 2 was Illegal and improper and ordered reinstatement of respondent No. 2 with full back wages and consequential benefits from 1.9.98.
5. Shri S. M. Dayal, learned counsel for the petitioner challenged the impugned award mainly on three grounds which will be dealt with in this Judgment in subsequent paragraphs.
6. The first ground of attack of Shri Dayal is that respondent No. 2 was not a workman within the meaning of Section 2 (z) of the Act and as such, there could not arise any industrial dispute between the petitioner and respondent No. 2, therefore, the reference made under Section 4K of the Act was incompetent and without jurisdiction. In order to appreciate this argument of the learned counsel, it may be necessary to have a glance on the relevant definition and provisions of the Act. Section 2 (k) defines Industry as follows :
"(k) 'Industry' means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen :
Industrial dispute is defined in Section 2 (l) as under :
(l) "Industrial Dispute' means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the term of employment or with the conditions of labour, of any person ; but does not include an industrial dispute concerning-
(i) any industry carried on by or under the authority of the Central Government or by a Railway Company, or
(ii) such controlled industry as may be specified in this behalf by Central Government, of
(iii) banking and insurance companies as defined in the Industrial Disputes Act, 1947, or
(iv) a mine or an oil-field.
Under Section 2 (z), workman has been defined as under :
(z) 'Workman' means any person (including an apprentice) employed in any industry to do any skilled or unskilled manual, supervisory or clerical work for hire or reward, whether the terms of employment by express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with or as a consequence of that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not Include any such person-
(i) who is subject to the Army Act, 1950 or the Air Force Act, 1950 or the Navy (Discipline) Act, 1934 ; or
(ii) who is employed in the police service or as an officer or other employee of a prison ; or
(iii) who is employed mainly in a managerial or administrative capacity ; or
(iv) who being employed in a supervisory capacity, draws wages exceeding five hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature."
7. It is not disputed that the respondent No. 2 was employed for a clerical work on payment of salary and he was not employed in any supervisory capacity. The business run by the petitioner company is fully covered by the aforesaid definition of 'Industry', The dispute which arose between the petitioner and respondent No. 2 was a dispute between an employer and workman and was connected with the employment of respondent No. 2. Such a dispute is squarely covered by the definition of 'Industrial Dispute' within the meaning of Section 2 (l) of the Act and the State Government under Section 4K was fully competent to refer the dispute to a Labour Court as the Industrial dispute in question was covered by serial No. 3 of the first schedule. It is also noteworthy that no such objection was raised before the Labour Court and it is for the first time that during the course of argument, learned counsel raised the aforesaid ground before this Court but in-any view of the matter, the said argument has no legs to stand in view of the above discussion.
8. The next submission made by the learned counsel for the petitioner is that the appointment of respondent No. 2 was purely of temporary nature and his services were liable to be terminated at any time without notice and without assigning any reasons, and since respondent No. 2 had left the employer's office on 10.9.98 and did not report for work thereafter, he was not entitled to notice pay nor retrenchment compensation and it was a case of voluntary abandonment of employment. Shri Sandeep Saxena appearing for respondent No. 2, however, supported the impugned order and invited the attention of the Court to paragraph 4 of the written statement filed by respondent No. 2 wherein it has been stated that initially respondent No. 2 was appointed on 1.10.87 to 31.10.87 and the management extended the period of appointment by subsequent orders and the last extension was made for the period tommencing from 3.8.88 to 30.9.88 and, therefore, the workman had rendered the service without any break and had completed more than 240 days in one calendar year. As a matter of fact, respondent No. 2 worked for 160 days in the year 1987 and further continuously worked for 254 days from 1.1.1988 to 10.9.1988. The Labour Court on appraisal of evidence of the parties has recorded a clear finding of fact that the workman had completed more than 250 days in one calendar year and this finding is based upon appralsa! of evidence including the record of the petitioner company wherein in the column of date of appointment, no entries were made and according to the attendance register his attendance was duly filled and the services were terminated only w.e.f. 12.9.98. In view of this finding of fact which could not be shown to be suffering from any infirmity or manifest error of law. the workman (respondent No. 2) had completed more than 240 days In one calendar year continuously without any break and the fact that in the attendance register the column of date of appointment was left blank shows that the management had permitted the respondent No. 2 to work continuously without any break. Therefore, the submission of learned counsel for the petitioner regarding the right of the management to terminate the service at any time and without assigning any reason does not hold good in the circumstances of the case. Once the workman was allowed to complete continuous service of more than 240 days in one calendar year, a statutory right accrued to him under Section 6N of the Act which entitles him to retrenchment compensation or notice prior to the termination of his services and since this was undisputedly not done in the present case, the termination order was bad in law and the Labour Court rightly set aside the same.
9. The last submission of the learned counsel for the petitioner is that respondent No. 2 was only a fixed term employee and he after having accepted the terms of appointment worked with the petitioner company under the said terms and, therefore, he could not claim any benefit contrary to the terms of appointment. To substantiate his argument, learned counsel for the petitioner drew the attention of the Court to Annexures-4A to 4-I to the writ petition, they are the copies of the appointment letters issued by petitioner company to the respondent No. 2 from time to time. Annexure-4A is dated 1.10.1987 whereby the petitioner was given appointment as clerk-cum-typist in the " Kanpur Branch of the petitioner company from 1.10.87 to 31.10.87 both dates inclusive and thereafter several such letters were issued from time to time and the last of such letter is dated 3.8.88 [Annexure-4-I and it related to the period from 3.8.88 to 30.9.88. Learned counsel for the petitioner submitted that every appointment letter clearly indicated that respondent No. 2 was given a temporary appointment and fresh appointments were given with breaks in service and at that time the respondent No. 2 never challenged the said appointment letters. On the basis of these documents, the finding of the Labour Court that the respondent No. 2 had continuously worked for more than 240 days has been challenged by the learned counsel for the petitioner as being perverse as according to him the aforesaid appointment letters showed that the appointment were for a fixed period from time to time and. therefore, the termination of the services of respondent No. 2 on the expiry of contract would not amount to retrenchment within the meaning of the Act. It is now welt-settled law that if. In fact, the workman has worked continuously and the appointment letters were issued only with a view to deprive the workman of the benefit of the statutory provisions that would not affect the right of the workman which accrued to him under the Act. The nature of employment is not judged by the terms of the letter Issued by the employer but by the nature of duty performed and if contractual employment is resorted to as a mechanism to frustrate the claim of the workman to become regular or permanent against a job which was continuous or the nature of duty is such that colour of contractual agreement is given to take it out from the provisions of the Act, such an agreement cannot be regarded as fair or bona fide. The periodical renewals if are made to avoid regular status to workman, they are to be ignored as such. A practice which has been adopted as a camouflage to circumvent the provisions of the Act which confers the benefit of permanency of workers who worked continuously for a period of more than 240 days cannot be allowed to be availed of by the employers. In the case of Jai Bharat Printers and Publishers (P.) Ltd. v. Labour Court, Kozhikodi and another, 1993 (67) FLR 757, a single Judge of Kerala High Court relying upon a decision of the Division Bench of this Court held that Section 2(oo)(bb) of the Industrial Disputes Act cannot be extended to a case where jobs continued and employee's work was satisfactory and periodical renewals of appointment with no wide breaks were of no consequence and the learned Judge accepted the finding of the Labour Court that it was a case of continuous service. In the present case also, the Labour Court has found as a fact that the attendance register indicated that the workman respondent No. 2 had worked continuously and, therefore, in the opinion of this Court, the appointment letters Issued from time to time did not reflect the true nature of the employment.
10. Bombay High Court also in the case of Dilip Hanumantarao Shirke v. Zila Parishad, Yavatmal, (1991) 78 FJR 436, held that the terminations which are included in sub-clause (bb) of Section 2(oo) of the Industrial Disputes Act are those which are brought about either because of non-renewal of contract or because of expiry of time stipulated in the contract of employment. It needs no further explanation but the probability of the employer exploiting the labour by giving fixed tenure appointments can never be overruled and. therefore, it would be improper and unwise simply to decide the nature of employment on the basis of letter of appointment issued by the employer. The nature of employment will have to be determined with reference to the nature of duties performed by the workman and type of job the workman was entrusted with. If the workman is engaged to do a particular job which may require him to do actual work for more than 240 days in twelve calendar months, such employment would be covered by the amended sub-clause-because the employment comes to an end with the completion of the work. A stipulation in the contract that the employment would be for a specific period or till completion of the work may also fall within the scope and ambit of this sub-clause. But if the employer resorts to contractual employment as a device to simply take it out of the principal clause (oo) irrespective of the fact that the work continues or the nature of duties which the workman was performing are still in existence, such contractual engagements will have to be tested on the anvil of fairness, propriety and bona fides. May be that such fixed tenure employment are made to frustrate the claim of the workman to become regular or get himself confirmed as a permanent employee either under the rules applicable to such employment or even under the standing orders. It is always open to the Court adjudicating the dispute to examine each and every case in its proper perspective and to protect the workman against the abuse of the amended provision. If this protection is not afforded the benefit flowing from retrenchment, to which every termination succumbs, would be rendered nugatory. The amended sub-clause (bb) would apply only to such cases where the work ceases with the employment or the post itself ceases to exist or such other analogous cases where the contract of employment is found to be fair. proper and bona fide. In the case of State Bank of India v. N. S. Money, AIR 1976 SC 1111, the employee was appointed off and on by the State Bank of India between 31 July, 1973 and August 29, 1973 and notwithstanding the Intermittent breaks his total number of days of employment were more than the statutory requirement but the order of appointment provided that the appointment was purely temporary one for a period of 9 days but may be terminated earlier without assigning any reason therefor at the Bank's discretion and the employment unless terminated earlier will automatically cease at the expiry of period, i.e., 18.11.1972. The nine days employment, however, ripened to a continuous service for an year. In these circumstances it was held that the employee was entitled to retrenchment compensation and as the same was not paid, the termination was invalid.
11. Similarly, in the case of Ganganath Jhan Kendriya Sanskrit Vidyapeeth, Allahabad v. Madan Lal and others, (1993) 1 UPLBBC 73, it has been held that where before passing of the order of termination if neither a notice nor pay in lieu thereof nor any retrenchment compensation was paid to the employee, the termination order is Illegal being violative of Section 6N of the Act.
12. In another decision in U. P. State Electricity Board, Lucknow and others v. Presiding Officer. Industrial Tribunal (I), Allahabad and others, 1996 (74) FLR 1843, it was held that the provisions of Section 6N fb) of the Act are very clear which require that the workman has been paid at the time of retrenchment. The expression 'has been paid' at the time of retrenchment makes it absolutely clear that the payment should be made before the retrenchment is given effect to. It may be that the act of payment may be simultaneous to the action of retrenchment but it cannot be after the retrenchment has already taken place.
13. In the case of D. K. Yadava v. J. M. A. Industries Limited. 1993 (67) FLR, the Apex Court took the view that the definition of retrenchment in Section 2(oo) is comprehensive one intended to cover any action of the management to put an end to the employment of any employee for any reason whatsoever. It was also observed in the aforesaid decision that the right to life enshrined in and include right to livelihood. The order of termination of the services of an employee/workman visits with severe consequences of jeopardizing not only his/her livelihood but also career and livelihood of dependents. Therefore, before taking any action putting an end to the tenure' of an employee/workman fair play requires that a reasonable opportunity to put forth his case is given and domestic inquiry conducted complying with the principles of natural Justice."
14. In the backdrop of the above principles of law, if we examine the facts of the present case, the inevitable conclusion would be that the respondent No. 2 was allowed to work continuously for a period of more than 240 days in a calendar year and series of appointment letters as exhibited in Annexure-4A to 4-I were simply Issued with an unfair object as a device to frustrate the claim of respondent No. 2 for taking benefit of the provisions of the Act and such the unfair action of the petitioner cannot be upheld. Therefore, the submission of learned counsel for the petitioner that the management of the petitioner company had a right to terminate the services of respondent No. 2 at any time and without assigning any reason as per the terms of the contract does not hold good. In the circumstances of the case, as the respondent No. 2 had completed continuous services of more than 240 days in one calendar year giving him a statutory right under the provisions of Section 6N of the Act and since he was neither given notice pay nor retrenchment compensation, the termination order was invalid and illegal being violative of mandatory provisions of Section 6N of the Act. The conclusion arrived at by respondent No. 1 in making the impugned award does not call for any, interference by this Court in exercise of its writ jurisdiction.
15. For the foregoing reasons and discussion, this writ petition must fall. The writ petition is dismissed with no order as to costs.