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Nareshkumar Manilal Parmar Vs. Ongc Ltd. and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtGujarat High Court
Decided On
Case NumberL.P.A. No. 424 of 2001 with C.A. No. 5362/2001
Judge
Reported in[2001(90)FLR528]; (2001)IILLJ919Guj
ActsIndustrial Disputes Act, 1947 - Sections 2; Constitution of India - Articles 14, 16 and 226
AppellantNareshkumar Manilal Parmar
RespondentOngc Ltd. and anr.
Appellant Advocate T.R. Mishra, Adv.
Respondent Advocate Rajni H. Mehta, Adv.
DispositionPetition dismissed
Cases ReferredCentral Inland Water Transport Corpn. Ltd. and Anr. v. Brojo Nath Ganguly and Anr.
Excerpt:
.....the respondent. 1 had appeared in the interview held for filling in vacant posts of pharmacists on regular basis, but had failed, and as he was not selected, the appellants were not entitled to reliefs claimed in the petition. on may 3, 2001, and following common order was passed in the letters patent appeal as well as civil application no. in the note 1 appended to the advertisement, it was clearly stated that the job was purely contractual and did not carry liability on ongc for regular appointment at any stage. 1 has failed and could not get himself selected for the post of pharmacist. while adjudicating the validity of the said rule, the supreme court has observed that said rule is void under section 23 of the contract act, as being opposed to public policy and is also ultra vires..........appellant no. 1 had appeared in the interview held for filling in vacant posts of pharmacists on regular basis, but had failed, and as he was not selected, the appellants were not entitled to reliefs claimed in the petition. what was claimed in the replies was that in view of the provisions of section 2(oo)(bb) of the industrial disputes act, 1947, the appellants were not entitled to claim that the appellant no. 1 was temporary employee of the respondent.4. the learned single judge, after hearing the learned counsel for the parties, has dismissed the petition by judgment dated april 24, 2001 giving rise to the present appeal.5. the appeal was placed for admission hearing before division bench comprising hon'ble the chief justice, d.m.-dharmadikari and p.b. majmudar, j. on may 3, 2001,.....
Judgment:
ORDER

J.M. Panchal, J.

1. By filing this appeal under Clause 15 of the Letters Patent, the appellants have challenged legality of judgment dated April 24, 2001 rendered by the learned single Judge in Special Civil Application No. 9381 of 2000 as well as in Civil Application No 2923 of 2001 by which prayers made by the appellants (1) to declare that the employment of the appellant No. 1 on contractual basis is unconstitutional; and (2) to declare that the appellant No. 1 has acquired temporary status in the services of the respondents as pharmacist and is entitled to all the benefits including time scale of pay and other perks at par with the permanent regular employees of the respondents, are rejected.

2. Before September, 1999, appellant No. 1 was working as pharmacist of a contractor who was engaged by the respondent to provide labour. During the year 1998, three sanctioned posts had fallen vacant in dispensary being run by the respondent, and therefore, the Administrative Officer, ONGC Mahesana had recommended to the General Manager to take an earlier action to fill in the vacant posts by addressing a letter dated January 16, 1998. Thereupon, the Western Regional Business Centre had arranged Walk-in-Interview for. filling in the vacant posts, and for that purpose, an advertisement was issued in 'Gujarat Samachar' daily published on September 7, 1999. In the said advertisement, it was mentioned that the respondent wanted to engage suitable and interested person on job on contract basis for one post of pharmacist at ONGC Health Centre, Mahesana for a period of one year which was extendable by another year and it was specifically stated that the job was purely contractual and did not carry liability on ONGC for regular appointment at any stage. What was mentioned in the said advertisement was that the agreement to be entered into for job on contract basis was required to be signed by the candidate concerned. The appellant No. 1 appeared for the interview held on September 14, 1999, and was selected to be engaged for the job for one year purely on contract basis. The respondent had informed the appellant No. 1 by communication dated September 29/30, 1999 that he was selected for the post of pharmacist purely on contractual basis for one year, and that his engagement was purely temporary and liable to be discontinued at any time without notice or assigning any reason. Pursuant to the selection of the appellant No. 1 on post of pharmacist, an agreement was entered into between the appellant No. 1 and respondent on October 9, 1999, wherein the appellant No. 1 accepted the position that he was appointed as pharmacist on contract basis for one year and that the appellant No. 1 was entitled to receive remuneration of Rs. 3,600/- P. M. Further, in the said agreement, it was stipulated that there was no employer and employee relationship between ONGC and the appellant No. 1. Meanwhile, regular selection process for filling in the post of pharmacist was initiated by the respondent and as the said process was likely to take considerable time, on request being made by the appellant No. 1, his contractual engagement was extended till July 31, 2001. The appellant No. 1 applied for the post of Junior Pharmacist regarding which regular selection process was initiated by the respondent, and before outcome of the said selection process, the appellants filed Special Civil Application No. 9381 of 2000 in the High Court. In the petition, the case of the appellants was that continuation of the engagement of the appellant No. 1 was on contractual basis, though he was working on clear vacancy for more than 240 days, was contrary to the provisions of Articles 14 and 16 of the Constitution as well as Industrial Disputes Act, 1947, and he was entitled to a declaration that he was a permanent and regular employee of the respondent. What was claimed by the appellants was that the agreement by which the appellant No. 1 was engaged as pharmacist was illegal and unfair, and therefore, the appellant No. 1 was entitled to all the benefits including time scale of pay and other perks at par with the permanent and regular employees of the respondent. Under the circumstances, in the petition, the appellants had prayed the Court to issue a writ or certiorari or any other appropriate writ, order or direction to declare that agreement by which the appellant No. 1 was engaged as pharmacist was unconstitutional. It was also prayed to declare that the appellant No. 1 acquired temporary status in service of the respondent and was entitled to all the benefits including time scaleof pay and other perks at par with the permanent employees of the respondent.

3. On service of notice, affidavit-in-replies were filed by the respondent and claim advanced by the appellants in the petition was contested. In the reply it was stated that the appellant No. 1 had appeared in the interview held for filling in vacant posts of pharmacists on regular basis, but had failed, and as he was not selected, the appellants were not entitled to reliefs claimed in the petition. What was claimed in the replies was that in view of the provisions of Section 2(oo)(bb) of the Industrial Disputes Act, 1947, the appellants were not entitled to claim that the appellant No. 1 was temporary employee of the respondent.

4. The learned single Judge, after hearing the learned counsel for the parties, has dismissed the petition by judgment dated April 24, 2001 giving rise to the present appeal.

5. The Appeal was placed for admission hearing before Division Bench comprising Hon'ble the Chief Justice, D.M.-DHARMADIKARI and P.B. majMUDAR, J. on May 3, 2001, and following common order was passed in the Letters Patent Appeal as well as Civil Application No. 5362 of 2001 :

'Issue notice returnable on January 19, 2001.

Learned counsel appearing for therespondents appears on caveat and waivesservice of notice of Rule.

The learned single Judge has, in his order dated April 24, 2001, already extended interim relief upto June 13, 2001.

The interim relief is extended till June 25, 2001. List the matter for final disposal on June 19, 2001.'

In view of the above referred to directions given by Division Bench, the Office has notified this appeal for final disposal and we have heard the learned counsel for the parties.

6. Mr. T.R. Mishra, learned counsel for the appellants submitted that the respondents' action in engaging appellant No. 1 for a fixed duration and taking his signature on the agreement is against the public policy, and as the agreement between two unequals is not enforceable at law, reliefs claimed in the petition ought to have been granted by the learned single Judge. It was pleaded that on misinterpretation of provisions of Section 2(oo)(bb) of the Industrial Disputes Act, 1947, the learned single Judge has rejected the petition filed by the appellants, and therefore, the present appeal deserves to be accepted. What was stressed was that the service conditions of the employees working with ONGC are governed by the Certified Standing Order which has statutory force, and therefore, as the appellant No. 1 was entitled to conferment of benefits of temporary employee on completion of 240 days' service, the reliefs claimed by the appellants in the petition should be granted. Further, it was emphasized that the action of the respondent in extending period of engagement of the appellant No. 1 as pharmacist for one year was without any cause or reason, more particularly when the appellant No. 1 was appointed on regular vacancy after due interview, and therefore, the learned single Judge committed error in not granting the reliefs claimed by the appellants in the petition. According to the learned counsel for the appellants, the approach made by the learned single Judge to the questions raised in the petition is wholly erroneous, and therefore, the appeal should be allowed. In support of his submissions, the learned counsel placed reliance on the decision of the Supreme Court in Central Inland Water Transport Corpn. Ltd. and Anr. v. Brojo Nath Ganguly and Anr. AIR 1986 SC 157 : 1986 (3) SCC 156 : 1986-II-LLJ-171.

7. Mr. R.H. Mehta, learned counsel for the respondent contended that the appellant No. 1, after reading the contents of advertisement, had applied for engagement as pharmacist on contractual basis, and is not entitled to the reliefs claimed in the petition, more particularly when he could not get himself selected at the regular selection process initiated for filling in the vacant post of pharmacist. According to Shri Mehta, the learned counsel for the respondent, it is wrong to contend that the respondent had acted in an unfair manner because during the pendency of selection process, initiated for filling in vacancy on regular basis, the contractual engagement of the appellant No. 1 was extended for a period of one year, and the appellant No. 1 was given fair chance to get himself selected at the interview, but unfortunately, he was not selected at the said interview. After drawing attention to the provisions of Section 2(oo)(bb) of the Industrial Disputes Act, 1947, the learned counsel asserted that contractual engagement of the appellant No. 1 as pharmacist cannot be regarded as illegal or contrary to the provisions of either Certified Standing Order or the Industrial Disputes Act, 1947 or Article 14 of the Constitution, and therefore, the learned single Judge was justified in dismissing the petition filed by the appellants. Further, it was pointed out that the extended term for which the appellant No. 1 was engaged as pharmacist, has expired and as the appellant No. 1 could not get himself selected at the regular selection process initiated by the respondent, the appeal should be dismissed and interim relief granted earlier should be vacated.

8. We have heard the learned counsel for the parties and taken into consideration the documents forming part of the petition. The record of the case indicates that advertisement at Annexure B was issued by the respondent in 'Gujarat Samachar' daily published on September 7, 1999, specifically mentioning that suitable and interested persons were to be engaged on job contract basis for a period of one year. In the note 1 appended to the advertisement, it was clearly stated that the job was purely contractual and did not carry liability on ONGC for regular appointment at any stage. Note 2 appended to the said advertisement required that an agreement was to be entered into for job on contractual basis by the candidate selected. Thus, it was made very clear in the advertisement itself that the applications were invited for engagement on contractual basis. After understanding the contents of the advertisement, the appellant No. 1 had applied for engagement as pharmacist on contractual basis and was selected in interview held on September 14, 1999 which is quite evident from Annexure C dated September 29/30, 1999. In the letter of appointment also, it was specifically mentioned that the engagement of the appellant No. 1 was purely on contractual basis and was extendable by a period of one year on approval by the competent authority. One of the conditions stipulated in the appointment letter was that the engagement of the appellant No. 1 on contractual basis for period of one year, was purely temporary and liable to be discontinued at any time without notice or without assigning any reasons. As observed earlier, the selected candidate was required to enter into an agreement after his selection for the p6st of pharmacist on contractual basis. Accordingly, the appellant No. 1 had entered into a contract with the respondent No. 1 and in the said contract also, it was accepted by appellant No. 1 that he was engaged as pharmacist on contractual basis for period of one year and that period was extendable by another period of one year on approval of the competent authority. It is not in dispute that meanwhile, the respondent had initiated selection process for filling in post of pharmacist on regular basis and that the appellant No. 1 had applied for the said post. As the said process was likely to take some time, the appellant No. 1 had made an application dated June 22, 2000 requesting the respondent to extend his engagement as pharmacist on contractual basis by a further period of one year which request was accepted by the respondent vide communication dated July 13, 2000. In this communication also, it was specifically mentioned that the appellant No. 1 was engaged as pharmacist for period of one year with effect from August 1, 2000 on contract basis and that his engagement was purely temporary in nature. It is not in dispute that at the regular selection process, the appellant No. 1 has failed and could not get himself selected for the post of pharmacist. The contention that the agreement for engagement of the appellant as pharmacist is contrary to the provisions of the Indian Contract Act or the Industrial Disputes Act or Article 14 of the Constitution, and therefore, the appellants are entitled to the reliefs claimed in the petition, is devoid of merits. It is relevant to notice at this stage me provisions of Section 2(oo)(bb) of the Industrial Disputes Act, 1947 which read as follows:

Section 2. Definition; In this Act, unless there is anything repugnant in the subject or context,

xxx xxx

(oo) '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) xxx xxx

(b) xxx xxx

(bb) termination of the service of theworkman as a result of the non-renewal ofthe contract of employment between theemployer and the workman concerned on itsexpiry or of such contract being terminatedunder a stipulation in that behalf containedtherein. '.

9. A bare reading of the above quoted provisions makes it manifest that '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 the termination of the service of the workman as a result of the non-renewal 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. In view of the provisions of Section 2(oo)(bb) of the Industrial Disputes Act, 1947, there is no manner of doubt that there can be a contract of employment for a fixed period, and if there is such contract then the employer can terminate the service of the employee on expiry of the contract or in terms of the stipulation contained in the contract. This further implies that fixed term contract of employment is not prohibited under the Industrial Disputes Act. Consequently, the appointment of the petitioner on contractual basis for a fixed term of one yearcannot be said to be illegal or contrary to the provisions contained in the Industrial Disputes Act.

10. The argument that in view of the provisions of the Certified Standing Order for the Contingent Employees of the ONGC, the appellant No. 1, is entitled to be treated as temporary workman, has also no substance. Clause 2 of the said Orders reads as under:

Clause 2: The Contingent Employees of the Commission shall hereafter be classified as:

(a) Temporary, and

(b) Casual

(II) A workman who has been on the rolls of the Commission and has put in not less than 180 days of attendance in any period of 12 consecutive months shall be a temporary workman, provided that a temporary workman who has put in not less than 240 days of attendance in any period of 12 consecutive months and who possesses the minimum qualifications prescribed by the Commission may be considered for conversion as regular employee.

(III) A workman who is neither temporary nor regular shall be considered as casual workman.

A reasonable reading of the above clause makes it clear that the Contingent Employees of the Commission are classified as temporary and casual workmen, and the workman who is on the rolls of the Commission and had put in not less than 180 days of attendance in any period of 12 consecutive months shall be temporary workman, but a temporary workman who has put in not less than 240 days of attendance in any period of 12 consecutive months and who possesses the minimum qualifications prescribed by the Commission may be considered for conversion as regular employee. There is nothing on the record of the petition which indicates that the appellant No. 1 was appointed as temporary employee of the respondent. As observed earlier, he was engaged as pharmacist on contractual basis, and therefore, in our view, claim advanced by the appellants that the appellant No. 1 is entitled to be treated astemporary workman in view of the provisions of the Certified Standing Orders, is rightly rejected by the learned single Judge.

11. In Central Inland Water Transport Corporation Ltd. and Anr. (supra), the Supreme Court had occasion to consider validity of Rule 9(i) of the Central Inland Water Transport Corporation (Service Discipline and Appeals) Rules, 1979. The said rule empowers the Corporation to terminate services of the permanent employees without any reason and by giving notice. While adjudicating the validity of the said rule, the Supreme Court has observed that said rule is void under Section 23 of the Contract Act, as being opposed to public policy and is also ultra vires Article 14 of the Constitution as well as violative of directive, principles contained in Article 39(d) and 41 of the Constitution. Further, the Supreme Court has observed that the principle is that Courts will not enforce and will, when called upon to do so, strike down unfair and unreasonable contract or unfair and unreasonable clause in a contract entered into between the parties who are not equal in bargaining power. In the case before us, we find that the agreement which was executed between the appellant No. 1 and the respondent is neither unfair nor unreasonable in its nature. Looking to the requirements and exigency of the situation, respondent had decided to engage the respondent No. 1 as pharmacist on contractual basis till regular appointment was made. All terms and conditions were mentioned in the advertisement as well as in the letter by which the respondent No. 1 was engaged as pharmacist on contractual basis. Consequently, we are of the opinion that the principle laid down by the Supreme Court in the case of Central Inland Water Transport Corporation (supra) cannot be made applicable to the facts of the present case, more particularly in view of the provisions of Section 2(oo)(bb) of the Industrial Disputes Act, 1947.

12. The plea that the respondent had acted in an unfair manner by requiring the appellant No. 1 to enter into an agreement for engagement as pharmacist on contractual basis, and therefore, reliefs claimed in the petition ought to have been granted, cannot be accepted. As observed earlier, the contract was entered into by the respondent No. 1 having regard to the conditions prevailing at the relevant time and till the regular appointment was made. During the process for regular recruitment, the appellant No. 1 could not get himself selected. If the reliefs claimed in the petition are granted, the consequence would be that the appellant No. 1 who is not selected at regular selection process would get employment as a pharmacist pursuant to the orders of the Court and this simply cannot be done at all in a petition filed under Article 226 of the Constitution. The record does not indicate that the respondent has acted in any unfair manner, more particularly when the appellant No. 1 was permitted to appear at regular selection process and during that time, his contractual engagement was extended by period of one year. On over all view of the matter, we are satisfied that no error is committed by the learned single Judge by dismissing the petition filed by the appellants and no ground was made out by the learned counsel for the appellants to warrant our interference with the same in the present appeal. Result is that the appeal is liable to be dismissed.

13. For the foregoing reasons, the appeals fail and are dismissed. Notice is discharged with no orders as to costs. Ad interim relief granted earlier is hereby vacated.

14. No orders on Civil Application No. 5362 of 1991.


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