@JUDGMENTTAG-ORDER
M.M. Ismail, J.@mdashThis is a petition to quash the award of the Labour Court, Madras dated 5th December, 1970. made in I.D. No. 155 of
1968. Most of the facts are not in controversy.
2. The petitioner, the Cromption Engineering Company (Madras) Private Limited, had employed the respondents 2 to 4 herein temporarily for a
specific period or in respect of a particular contract work undertaken by the petitioner. The three persons had been employed for several such
periods and for several such contracts. Exhibits M-1 and M-4 which are the orders of appointment in respect of W. W. 1 and W. W. 3 show that
they were appointed in respect of the particular contract or for particular period and their appointments were purely temporary and came to an end
as soon as the period or the job was over. The respondents 2 to 4 herein raised an industrial dispute on the allegation that they Were not given any
work with effect from a particular date. That dispute was referred for adjudication by the Government in G. O. R. No. 2578 dated 22nd
November, 1968. The points of reference were:
Whether the non-employment of Thiruvalargal D. Dhansingh, P. K. Gopal Pillai and A. Divyanathan, was justified if not, to what relief they are
entitled; To compute the relief, if any awarded, in terms of money, if it can be so computed.
3. The petitioner contended before the Labour Court that the petitioner has a contract department in which it employed on permanent basis
wiremen, assistant wiremen, supervisors and helpers, who are the principal type of employees in the contracts department, and as and when the
company takes extra work or for completing job quickly ahead of the schedule, it used to employ casual workers to help the permanent workers ;
the respondents 2 to 4 herein were all employed purely on casual basis and daily rates, and the contract of service was for the day only ; no
payment was made for Sundays or other holidays ; while the permanent employees had the benefit of a graded scale of basic wages and separate
dearness allowance, respondents 2 to 4 Were purely casual employees and were paid only on consolidated basis ; they were not entitled to any
leave or other privileges available to permanent workers; in short, the service conditions of respondents 2 to 4 varied widely from those of the
permanent employees themselves in that very department ; even during the period they were taken on casual employment, there have been a
number of occasions when there has been break in the period of employment; they had not worked fully during the entire week on a number of
occasions.
4. The Labour Court has proceeded on the basis that there was some difficulty in holding that respondents 2 to 4 herein were permanent
employees of the company, and the company had separate muster rolls for permanent labourers and the benefits that are available to the
permanent labourers were not given to these workmen. It is not disputed that respondents 2 to 4 herein were paid only daily rates of wages and
they were paid at the end of the week on Saturdays, and they were paid only on the days when they had worked, and they were not entitled to
wages on days on which they did not work and they were not entitled to any holidays. Notwithstanding these facts, the Labour Court simply on the
basis of the judgment of this Court in Elumlai v. Management of Simplex Concrete Piles (1970) 2 L.L.J. 454, came to the conclusion that even
casual labourers are included in the definition of ''workmen'' in Section 2(s) of the Industrial Disputes Act, and therefore the respondents 2 to 4
herein were entitled to reinstatement. In my opinion, the Labour Court committed an error in coming to this conclusion. In the decision referred to
above, the only question that was considered by this Court was whether a casual worker will come within the expression '' workman '' occurring in
Section 2 (s) of the Industrial Disputes Act. In that case, the Labour Court held that the casual labourers were not workmen and on that basis, the
claim petition filed by the casual labourers was dismissed. When the matter came up before this Court, this Court held that the definition of the term
''workman'' found in Section 2(s) of the Act would include a casual worker also, and on this finding remanded the matter back to the Labour Court
for fresh consideration. However, while doing so, this Court clearly pointed out that that this Court was not deciding anything as to whether the
petitioner therein was entitled to any relief under any of the provisions of the Industrial Disputes Act or not, and all that the Court decided was that
the petitioner therein was a workman within the scope of the definition of the word in Section 2(s) of the Act.
5. The Labour Court in the present case has thoroughly misunderstood the scope of the above decision. As I pointed out already, in view of the
above decision, respondents 2 to 4 herein would all be within the scope of the definition ''workman'' in Section 2(s) of the Act. But that is far
different from saying that respondents 2 to 4 herein Would be entitled to a particular relief provided for in the Act. However, the Labour Court
recorded in paragraph 7 of its award:
Now on going through the entire records in this case although there is some difficulty in holding that W. W. 1 to W. W. 3 are permanent
employees of the respondent company, still the matter assumes little importance in view of the decision in Elumalai v. Management of Simplex
Concrete Piles and Anr. (1970) 2 L.L.J. 454. It has been held in this ruling that the definition of worker in Section 2(s) is in the widest possible
terms and includes a casual worker. Further, it is clear from Section 25-C that even a casual worker would be a worker within the meaning of
Section 2(s) of the Industrial Disputes Act. Therefore even assuming that the workmen are merely casual workers, still they would be workmen
within the meaning of Section 2(s) of the Industrial Disputes Act, and they would be entitled to the reliefs claimed by them.
Solely from the simple fact that the definition of the term ''workman'' contained in Section 2(s) of the Act includes temporary or casual labourers
also, it does not follow that such temporary or casual labourers are entitled to reinstatement.
6. As I pointed out already, the reference that was made to the Labour Court was whether the non-employment of respondents 2 to 4 herein was
justified or not. In my opinion, the question of non-employment will arise only when the employer refused to give work to a person who is entitled
to work. In this particular case, in the case of respondents 2 to 4, they were appointed only for a specific period or for a particular work and as
soon as the period was over or the work was over, their employment automatically came to an end and there is no rule or law which contemplates
that such an employee must be given work again by the employer. In this particular case, even the Labour Court was fully aware of this position.
Though it directed reinstatement of respondents 2 to 4 herein, it declined to order payment of backwages to them. In paragraph 14 of the award,
the Labour Court stated that there was evidence to show that the contract in which these workmen were employed was over and that the
company had got other contracts SOT which the services of these workmen were not immediately needed. Therefore, it is clear that even the
Labour Court accepted the position that the respondents 2 to 4 herein were employed for a particular contract, and after the completion of that
contract even when the petitioner took some other contract, the services of respondents 2 to 4 were not needed for that contract. If so, it is
difficult to understand how respondents 2 to 4 can be directed to be reinstated. Essentially, an order of reinstatement postulates the'' existence of a
post in which the particular person was working and with reference to which his employment was terminated. When there was no post and there
was no termination of employment, but only there was the employment of a particular individual for specific period or for a specific work, the
employment automatically came to an end on the expiry, of such period or after the work was over, and consequently, there was no termination
and there was no question of reinstatement. The result of this is that the Labour Court on an erroneous understanding of the scope of the judgment
of this Court referred to already, straightaway held that notwithstanding the facts of the present case, the respondents 2 to 4 were entitled to be
reinstated in the employment of the petitioner herein.
7. Learned Counsel for respondents 2 to 4 repeatedly contended before me that respondents 2 to 4 had been engaged for a fairly long time and
that is the finding of the Labour Court and in view of this, the Labour Court was justified in directing the reinstatement. No principle or provision of
law was brought to my notice to show that a worker who was employed for a specific period or a specific work and whose employment
automatically came to an end on the expiry of the period or completion of the work is entitled to reinstatement simply because he was so employed
on more than one such occasion and so he worked in that manner for a long period and no case of retrenchment was pleaded either before the
Labour Court or before me. In paragraph 9 of the award, the Labour Court dealt with the case of W. W. 1 that is the third respondent herein, and
with reference to him, it pointed out that though he was appointed as a workman under Exhibit M-1 on a salary of Rs. 3.50 per day on a
temporary basis, he had stated in his evidence that he had been in service from 22nd June, 1966 onwards and that he was removed from service
only on 5th February, 1968 and the muster roll produced in this case as per Exhibit M-2 would show that he was in the service of the company
from 10th July, 1966 to 16th July, 1966 and Exhibit M-10 showed that he was appointed on 6th June, 1967 and for a period of nearly seven
months he was in service for about 157 1/2 days. Hence the Labour Court concluded that it cannot be stated that he was only a casual labourer
and worked only for a few days. With regard to W. W. 2, that is respondent 2 herein, the Labour Court pointed out that according to him, he
worked from 5th January, 1962 and his name finds a place in Exhibit M-3 for the period 10th July, 1966 to 16th July, 1966 and in his favour, a
wage card was maintained by the site engineer as per Exhibit M-8 and he was stopped from service from 2nd January, 1968. The Labour Court
concluded:
Therefore on a perusal of these documents it is clear that W. W. 2 was in service for a period of nearly six years though only some of the
documents relating to the job were filed by the management.
The documents that were referred to in paragraph 10 of the award in which alone the case W. W. 2 was dealt with, were Exhibits M-3 and M-8
and these two documents admittedly do not establish that W. W. 2 was in service for a period of nearly six years. When this was realised, the
learned Counsel for respondents 2 to 4 contended that even though the Labour Court was wrong in stating that these documents established that
W. W. 2 was in service for nearly a period of six years, still there was oral evidence to support this conclusion of the Labour Court. In my opinion
this contention is untenable. As far as W. W. 3, that is, respondent 4 is concerned, his case was dealt within paragraph 11 of the award and in that
paragraph, the Labour Court held that he has worked for one year under Exhibit M-9 and during the course of 1967, he has worked for 280 days
and hence he cannot also be treated as a casual labourer though the company had not chosen to treat him as a permanent labourer. Here also, the
Labour Court observed that W. W. 3 has stated that he was working as an electrician-helper from 4th January, 1966 and that he was dismissed
from service from January, 1968. I may point out immediately that there is no order terminating the services of any of these respondents and even
though respondents 2 to 4 stated in their evidence that their services were terminated or they were dismissed from service, there was no order to
that effect, and on the other hand, as pointed out already, the very orders of appointment themselves show that they were appointed only for a
particular period or for a particular job and as soon as the period or the job was over, the appointment automatically came to an end and this
position was not disputed before me.
8. Under these circumstances, even though the respondents 2 to 4 would come within the scope of the term ''workman'' in Section 2(s) of the
Industrial Disputes Act, they would not be entitled to reinstatement as ordered by the Labour Court since there was no question of termination of
their services or discharge of the workmen concerned as their employment itself was for a particular period or for a particular job and such
employment came to an end automatically as soon as the term was over or the job was over. Under these circumstances, the award of the Labour
Court in the present case cannot be sustained. Consequently, the Writ Petition is allowed and the impugned award is quashed. There will be no
order as to costs.
