DINESH KUMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner, by means of this writ petition has challenged the legality of retrenchment order dated 26-3-91 terminating his services w. e. f. 31. 3. 91 (Annex. 6), notice of retrenchment under Sec. 25 F (c) of the Industrial Disputes Act, 1947 (In short, 'the Act' (Annex, 7) and forwarding letter Annex. 5 and prayed that those be quashed; and prayed that he be reinstated in services with full back wages, and that his services be also regularised with all consequential benefits.

(2.) BRIEFLY, the matrix which has led to filing this third writ petition against the respondents can be recapitulated like this. It appears that Dy. Personnel Manager (I & M) of the Indian Telephone Industries Limited, Installation and Maintenance Unit No 5, Banglore, by his letter dated 3. 11. 1987 (Annex. 7) informed the petitioner regarding recruitment of temporary Supervisors (Civil) for their Installation work to be undertaken in Punjab, Rajasthan and Jammu against the Turn Key Project on consolidated salary of Rs. 1000/-p. m. He further informed the petitioner that the District Employment Exchange had forwarded his name as a likely candidate for their requirement and that the job involved supervision of civil works like construction of building, tower, foundation, sanitary and road work for Micro Wave Stations and that the vacancy was temporary till the completion of the project, which may extend to about two years. The petitioner applied for the said post and was interviewed on 7-1-88. The Chief Engineer, Installation and Maintenance Unit, Jodhpur (non-petitioner No. 4) vide his letter dated 22-2-88 (Annex. 2) informed the petitioner that he has been provisionally selected for the post of Supervisor (C) for their I & M Unit at Jodhpur on purely temporary and contract basis for a period of one year only on a consolidated salary of Rs. 1000/- p. m. that he may be posted anywhere in Rajasthan State; and that he will be governed by the Rules and Regulations of Company's Conduct, Discipline and Appeal Rules, 1975. The petitioner joined his duty on 6-3-1988. After completion of one year's tenure his services were extended verbally upto 29-3-1990. Thereafter, non-petitioner No. 4 by his letter dated "0-3-1990 (Annex. 3) extended his services upto 4-5-90 on the same terms and conditions on a consolidated salary of Rs. 1200/-p. m. It was also mentioned in Annex. 3 that petitioner's services will be treated, terminated automatically on 4-5-90. Thereafter, petitioner's services were farther extended orally. During the continuation of his service, the petitioner filed SB Civil Writ Petition No. 533/91 "dinesh Kumar vs. Union of India & ors. on 5-1-91 in this Court seeking the relief for giving him regular pay-scale and consequent benefits on the basis of "equal pay for equal work", which was admitted on 6-2-91. It is the case of the petitioner that due to the said writ petition, non - petitioners became annoyed and that vide letter dated 30-1-91 (Annex. 4), on the one hand, first of all his services were extended upto 28-2-91 on a consolidated salary of Rs. 1500/- p. m. on the same terms and conditions, on the other hand simultaneously it was also mentioned therein that he was offered one month's notice and compensation as required under Sec. 25 FFF of the Act and that his services will be treated terminated automatically in the after-noon of 28-2-91. He was also directed to collect his dues in the office of respondent No. 4. The said letter was received by the petitioner on 7-2-91. The petitioner, therefore, filed second writ petition (SB Civil Writ Petition No. 730/91 "dinesh Kumar Vs. Union of India & ors.) challenging his retrenchment on the ground of noncompliance of the provisions of Section 25-F and violation of other provisions of the Act. This Court by its order dated 19-3-91 held that the termination order (Annex. 4) was in violation of the provisions of sec. 25-F of the Act and quashed the same. The Court, however, left open the controversy regarding the alleged violation of Sec. 25-N of the Act for want of necessary facts.

(3.) IN separate replies filed on behalf of non-petitioners No. 2& 3 and non-petitioner No. 4, it has been emphatically asserted that ITIL is an industry, which manufactures and sells telecommunication instruments and for that purpose it does not require regular staff for undertaking the civil works. However, some telecommunication instruments, are manufactured as per specific requirements of the Ministry of Defence and other Departments of Government of INdia. Such instruments at times are required to be installed under the supervision of the ITIL, so that their technical workability is maintained. They have pleaded that such installations of telecommunication instruments are not a regular phenomenon of ITIL and that on being required to install such telecommunication instruments and to ensure that those installations work and function, Turn Key Projects are undertaken as independent works, which are inherently of a temporary nature being for a specified work and that the life of such project is coterminous with the completion of the work. The Turn Key Project in question was undertaken by 1 & M Unit, Jodhpur for the installation of Micro Wave Towers and certain telecommunication machines for the Ministry of Defence at different places. This also included civil works like construction of building, tower installation sanitary and road works for micro wave stations. The work of the said Turn Key Project has already been completed not only in Jodhpur but at other places also and that the unit is under the process of being wound up. Therefore, after the completion of the said project, the ITIL does not at all require any such staff as was engaged by the unit. It is the case of respondents No. 2 to 4 that before the establishment of a Turn Key Project or Unit, by way of providing infra-structure, Dy. Personnel Manager (I & M) had issued letter dated 3. 11. 87 (Annex. 1), but on account of that it cannot be claimed that the petitioner was appointed as Supervisor in the ITIL and that his services were transferable at any place throughout INdia. They emphatically asserted that the impugned termination order was neither mala fide nor motivated. They alleged that at the time of decision of the writ petition No. 730/91 i. e. on 19. 3. 91, it was clearly given out on behalf of the non-petitioner No. 4 in the Court that since the termination order Annexure-3 had been quashed, the petitioner should report on duty immediately on the next day. But the petitioner did not report on duty next day because he knew that there was no subsisting requirement of his service and that a fresh termination order was likely to be passed against him. It has been alleged by respondent No. 4 that after rectifying all the technical defects, a fresh termination order dated 26. 3. 91 (Annex. 6) was passed and apprehending that the petitioner will avoid the receipt thereof, Annexures 5, 6 & 7 were despatched along with the demand orders to the petitioner by registered post. The petitioner, however, avoided to take the delivery thereof. Hence when on 30. 3. 91, the petitioner appeared in the office, copies of Annexures 5, 6 and 7 were delivered to him personally. It is alleged that the impugned retrenchment order does offend the provisions of Section 25-F and 25-FFF of the Act. The non-petitioners have emphatically averred that neither 150 employees are still working in the I and M Unit Jodhpur nor any employee of this Unit has been absorbed anywhere in any other unit under the ITIL nor any person junior to the petitioner working as Supervisor (Civil) has been retained in service nor the service of any employee has been confirmed in I and M UNIT, Jodhpur Circle. On the other hand, they have categorically pleaded that the said Unit has been closed w. e. f. 31. 8. 91 that Shri Narendra Kumar, who was appointed as Supervisor (Civil) has already been removed and that Shri Devi Lal, Supervisor (Electrical), is also being removed within few days. The respondents have maintained that the provisions of Sec. 25-N of the Act are not at all attracted in this case, because I & M Unit Jodhpur Circle is not an establishment where more than 100 workmen were employed on an average per working day during the preceding 12 months and consequently provisions of Chapter-V-B of the Act do not apply in this case. It has been asserted that not a single employee, junior to the petitioner, has been retained in service and as such provisions of Section 25-G have also not been violated that the work of the project has been completed and, therefore, the employees cannot be retained in service any more and hence the termination of petitioner was neither unfair nor mala fide not illegal. They have also maintained that the ITIL does not have a regular cadre of Supervisor (Civil) and as such there is no question of absorbing him or regularising his services. It has also been alleged that the petitioner was intimated that the original pay-orders along with Annexures 5, 6 and 7 had been sent to him by the registered post, but he managed to return the said registered letter undelivered and thereby by his own fault did not receive the salary and compensation, which was validly and properly offered to him simultaneously along with the retrenchment order and as such on that count the retrenchment order cannot be struck down and the petitioner cannot be allowed to take advantage of his own wrong. It has also been asserted that since no Supervisor (Civil) has been retained by the non-petitioner No. 4, there was no question of preparing any seniority list.