1. The petitioner has filed the present petition being aggrieved by Award dated 31.7.2018 (declared on 29.8.2018) passed by Labour Court, Dewas whereby the relief of reinstatement into the service with full back wages and other consequential benefits has been granted in favour of the respondent.

2. Facts of the case, in short, are as under:

(i) The petitioner is a company registered under the Companies Act,1956 having its manufacture unit at Dewas Industrial area. He petitioner appointed , respondent on 2.6.2009 for a period of four years . Initially respondent made an allegation against Ms.Anita Chouhan Head of the Department that she gave her indecent proposals. Thereafter, she made an allegation against S.K. Saini Supervisor about sexual harassment in the working place and when she declined the proposals given by him, a charge-sheet was issued to her. During pendency of the enquiry, her three years' term of contract came to an end, therefore, she was discontinued from the service w.e.f. 30.6.2013.

(ii) Being aggrieved by the aforesaid termination from service, respondent raised an industrial dispute u/s. 10(1) of Industrial Disputes Act, 1947 (hereinafter referred to as ' the of 1947') before the Additional Labour Commissioner, Indore. After the conciliation proceedings ended into failure, the Govt. of M.P. Vide order dated 18.11.2014 has referred the dispute to the Labour Court for adjudication on the following terms of reference :

' D;k dq- laxhrk vkdksfn;k dk fu;kstd }kjk fd;k x;k lsok i`FkDdj.k oS/k ,oa mfpr gSa ;fn ugha rks os fdl lgk;rk ds ik= gSa ,oa bl laca/k esa lsok fu;kstd dks D;k funsZ'k fn;s tkus pkfg;s '

(iii) After receipt of the reference before the Labour Court, the respondent filed her statement of claim. As per averments made in the statement of claim, petitioner appointed her as Manager on 2.6.2009 in its Leather Manufacture Unit at Dewas. After the said appointment, vide letter dated 24.12.2011, her appointment order was amended and washing allowance was discontinued. In the claim she has reiterated all the allegations made against Anita Chouhan and S.K. Saini. It is further pleaded that by her, that she has also made complaint in SC/ ST Police Station, Dewas, but no action has been taken. She was again called on duty on 10.12.2012 and charge-sheet was served on her. She gave her joining on 15.12.2012. She was asked to meet Kailash Chaturvedi. There also, she was tortured. She continued to sustain the torture because there was no earning member in the family except her. Her father became unemployed because of the closure of M.P.S.R.T.C., her brother is of unsound mind, and her mother is a patient of Blood Pressure. She was discontinued in service illegally w.e.f. 30.6.2013.

(iv) After receipt of summons, the petitioner appeared and filed the reply repudiating all the allegations made in the statement of claim. According to the petitioner, the respondent was appointed on 2.7.2009 as per the terms and conditions mentioned in the appointment order only for the period of three years. The respondent has never worked in Tata International Ltd., whereas she worked in Ladies Footwear Division Unit at Dewas. She herself submitted an unconditional apology in pursuant to the charge-sheet dated 3.2.2012. It has also been pleaded that the complaint made by her in SC/ST Police Station has been found baseless and closed. Since her working was not found satisfactory, therefore, she was discontinued from service after the end of contract period.

(v) On the basis of pleadings made in the statement of claim as well as in the reply, the learned Labour Court framed 8 issues for adjudication in order to answer the terms of reference.

(vii) In support of statement of claim, the respondent examined herself as P.W.1 and the petitioner examined Sameer Tungare as D.W.1; Yogita Singh as D.W.2; Smt. Benifer R. Jinwala as D.W.3; Sanjay Agrawal as D.W.4.

(viii) Initially, the Labour Court has decided Issue No.1 as a preliminary issue in respect of validity of the departmental enquiry. Vide order dated 15.2.2017, learned Labour Court has held that the enquiry has not been completed in accordance with the principles of natural justice. Thereafter, the Management of the petitioner was given an opportunity to prove the charges before the Labour Court. In order to prove the charges before the Labour Court, the petitioner examined the witnesses viz Sameer Tungare; Smt. Benifer R. Jinwala; Sanjay Agrawal; Yogita Singh and respondent Sangita Akodia.

(ix) After appreciating the evidence came on record, learned Labour Court has held that the petitioner has failed to prove the charge of misconduct against the respondent. Issues No.3 and 4 have answered against the petitioner with the finding that the retrenchment of respondent from service amounts to termination in absence of compliance of the provisions of Section 25F of theof 1947. Issue Nos. 5 & 6 have also been answered in favour of the respondent by directing the petitioner to reinstate her into the service with back wages and other consequential benefits. Vide Award dated 31.7.2018 the termination order dated 30.6.2013 has been declared as illegal, hence the present petition before this Court.

3. Shri Kuldeep Bhargava, learned counsel appearing for the petitioner, submitted that the impugned Award in unsustainable in law on the ground that the respondent was appointed for fixed term and discontinued from service due to non-renewal of contract which is out of the purview of 'retrenchment' as defined under section 2 (oo) of theof 1947. As per definition of (bb) of section 2(oo) of 'retrenchment', 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 does not amount to 'retrenchment'. Therefore, the petitioner was not bound to follow the provisions of Section 25F of theof 1947 which are conditions precedent to retrench the workmen. He has further placed reliance over the definition of 'fixed term employment's employee' given in Section 2(vii) of M.P. Industrial Employment (Standing Orders) Rules, 1963 and according to which, an employee who has been engaged on the basis of contract employment for a fixed period. He further submitted that 'temporary employee' has been defined in Section 2(vi) of the Rules of 1963 which means an employee who has been employed for work which is essentially of a temporary character.

The temporary employee who has worked for more than six months shall be deemed to be a 'permanent employee', therefore, the respondent cannot be treated as a temporary employee acquiring the status of permanent employee after working of six months for the purposes of benefit of Section 25F of theof 1947. In support of his contention, he has placed reliance over the judgment of apex Court passed in the case of Rajasthan State Roadways Transport Corpn. V/s. Paramjeet Singh : 2019 LAB. I.C. 3105; Bhavnagar Municipal Corpn. V/s. Salimbhai Umarbhai Mansuri : (2013) 14 SCC 456 ; decision of Division Bench of High Court of Bombay in the case of Elpro International Ltd. V/s. K.B. Joshi : 1987 Mh.L.J. 376 ; and decision of Division Bench of Gujarat High Court in the case of State of Gujarat V/s. Lokendrasinh Pratapsinh Chauhan : 2018 LAB. I.C. 161 .

4. Per contra, Shri Lokesh Mehta, learned counsel appearing for respondent, argued that the respondent was appointed on contract basis for a period of three years, but as per Section 25F of theof 1947, no workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until the workman has been give one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired or the workman has been paid in lieu of such notice wages for the period of notice or the compensation has been paid. Since the respondent had worked for more than a year, learned Labour Court has rightly held that the retrenchment of respondent from service amounts to illegal termination as the respondent had acquired the status of permanent employee. Though the definition of 'retrenchment' given in Section 2(oo) has been amended by adding Clause (bb), but there is no corresponding amendment in Section 25F of theof 1947. The respondent is covered under the definition of 'workman' as provided in Section 2(s) of theof 1947. No employer is permitted to engage the workman on contract basis for more than 11 months. The petitioner cannot be permitted to avoid the statutory liability by appointing a person on contract basis for a period of three years. That cannot be the intention of law to commit fraud with the statute by a model employer. Hence, the learned Labour Court has rightly held that termination of respondent is illegal and she is entitled for reinstatement with full back wages. No interference with the impugned Award is called for on merit also because the petitioner has failed to prove the charges against the respondent and the petition is liable to be dismissed.

5. I have considered the arguments of learned counsels and peruse the record.

6. It is not in dispute that the respondent was appointed for the period of four years on contract basis. Relevant conditions No. 4 and 5 of the appointment order dated 2.7.2009 are reproduced below :

'4. pwafd vkidk fu;kstu] lafonk vk/kkj ij fnukad 2 twykbZ] 2009 ls 30 twu] 2013 rd dh fuf'pr vof/k ds fy, fd;k x;k gSA bl vk/kkj ij vkidk fu;kstu ftl in ij fd;k x;k gS ml in ij vkidk dksbZ vf/kdkj ;k LoRo ekU; ugha gksxkA ;g ugha vki ftl in ij fu;ksftr gS og in ;k vU;Fkk] dksbZ in fjDr gksus dh n'kk esa Hkh vki fdlh Lfkk;h in ij fu;kstu ds fy, l{ke ugha gksaxsaA

5- ;g Li"V :i ls fofnr gks fd lafonk vk/kkj ij pkj o"kZ dh fuf'pr vof/k ds fy, fd;k x;k vkidk fu;kstu] fu/kkZfjr vof/k ds vafre dk;Z fnol vFkkZr fnukad 30 twu] 2013 dks fcuk fdlh lwpuk ds Lor% lekIr gks tk;sxkA izca/ku }kjk blds fy, lwpuk ;k lwpuk ds ,ot esa osru ;k NWVuh eqvkotk ugha fn;k tkosaxkA '

In between, she made a false complaint ab out sexual harassment in working place against higher officials of the petitioner company. A charge sheet was issued to her but before the departmental inquiry could be completed, her tenure of appointment came to end, hence the petitioner has dropped the enquiry against her. Thereafter she raised the industrial dispute. Learned Labour court has declared the termination as retrenchment due to non-compliance of provisions of section 25F of theof 1947. The core issue is involved in this writ petition is 'whether the petitioner was bound to follow the provisions of section 25F of theof 1947 in case of termination of the service of respondent as a result of nonrenewal of contract of employment' This issue came up before the Supreme court of India in following cases:- (i) In the case of Harmohinder Singh v. Kharga Canteen, Ambala Cantt., (2001) 5 SCC 540 , Hon,ble Apex Court has held has under :

15. The argument on the basis of Section 25-F is equally misconceived. This section deals with conditions precedent to retrenchment of workmen. It would not apply to para 3-A because of the definition of retrenchment in Section 2( oo )( bb ) which expressly excludes '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'.

Contracts of service for a fixed term are, therefore, excluded. This Court in Uptron case has also held that the principles of natural justice are not applicable where the termination takes place on the expiry of the contract. The decision of a learned Single Judge of the Punjab and Haryana High Court in Balbir Singh v. Kurukshetra Central Coop. Bank Ltd. to the extent that it holds to the contrary is erroneous.

(ii) In the case of Municipal Council, Samrala v. Raj Kumar, (2006) 3 SCC 81 the Apex court has again considered the scope of 2(oo)(bb) of the of 1947

8. Learned counsel appearing on behalf of the appellant raised a short question in support of this appeal. It was submitted that having regard to the definition of 'retrenchment' as contained in Section 2( oo )( bb ), the respondent having been appointed on a contract basis, the provisions of Section 25-F will have no application. Learned counsel appearing for the respondent, on other hand, submitted that the terms and conditions of appointment of the respondent nowhere suggest that the same was in relation to either in respect of a project or for a fixed period, and in that view of the matter the provisions of Section 2( oo )( bb ) of thewould have no application in the instant case. Learned counsel furthermore urged that from a perusal of the order dated 22-5-1997, whereby the services of the respondent were terminated, it would not appear that the services of the respondent were not required or the appellant did not consider it to be fit or appropriate or necessary to continue the respondent in service and thus the condition precedent contained in the offer of appointment has not been complied with. It was moreover urged that in view of the finding of fact arrived at by the learned Labour Court that the respondent herein was appointed intermittently without specifying any period of service as also the purpose for which he was appointed, the provisions of Section 25-F would be attracted.

9. Section 2( oo )( bb ) of the Industrial Disputes Act reads as under:

' 2. Definitions.In this Act, unless there is anything repugnant in the subject or context,

* * *

(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) voluntary retirement of the workman; or

(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or

(bb) 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;. "

10. Clause ( oo )( bb ) of Section 2 contains an exception. It is in two parts. The first part contemplates termination of service of the workman as a result of the non-renewal of the contract of employment or on its expiry; whereas the second part postulates termination of such contract of employment in terms of stipulation contained in that behalf. The learned Presiding Officer of the Labour Court as also the High Court arrived at their respective findings upon taking into consideration the first part of Section 2( oo )( bb ) and not the second part thereof. The circumstances in which the respondent came to be appointed have been noticed by us hereinbefore.

11. The appellant is a Municipal Council. It is governed by the provisions of a statute. The matter relating to the appointment of employees as also the terms and conditions of their services indisputably are governed by the provisions of the relevant Municipal Act and/or the rules framed thereunder. Furthermore, there is no doubt that the matter relating to the employment in the Municipal Council should be governed by the statutory provisions and thus such offer of appointment must be made by a person authorised therefor. The agenda in question was placed before the Executive Council with a view to obtain requisite direction from it where for the said letter was written. The reason for such appointment on contract basis has explicitly been stated therein, namely, that one post was vacant and two employees were on leave and in that view of the matter, services of a person were immediately required in the Council. Thus, keeping in view the exigency of the situation, the respondent came to be appointed on the terms and conditions approved by the Municipal Council.

12. We have noticed hereinbefore that the respondent understood that his appointment would be short-lived. He furthermore understood that his services could be terminated at any point of time as it was on a contract basis. It is only in that view of the matter, as noticed hereinbefore, that he affirmed an affidavit stating that the Municipal Council of Samrala could dispense with his services and that they have a right to do so.

(iii) In the case of Haryana State Agricultural Marketing Board v. Subhash Chand, (2006) 2 SCC 794 Hon,ble Apex Court has held has under:

9. It is the contention of the appellant that the respondent was appointed during the 'wheat season' or the 'paddy season'. It is also not in dispute that the appellant is a statutory body constituted under the Punjab and Haryana Agriculture Produce Marketing Board Act. In terms of the provisions of the said Act, indisputably, regulations are framed by the Board laying down the terms and conditions of services of the employees working in the Market Committees. A bare perusal of the offer of appointment clearly goes to show that the appointments were made on contract basis. It was not a case where a workman was continuously appointed with artificial gap of 1 day only. Indisputably, the respondent had been re-employed after termination of his services on contract basis after a consideration period(s).

10. In Municipal Council, Samrala v. Raj Kumar wherein, in the offer of appointment it was specifically averred that 'his services will be availed till it is considered as fit and proper and necessary. After that his services will be dispensed with', which was accepted by the employee by affirming an affidavit to the effect that he would not have any objection, if the Municipal Corporation dispensed with his services and thereby acknowledged its right to that effect, this Court held:

' Clause (oo)(bb) of Section 2 contain an exception. It is in two parts. The first part contemplates termination of service of the workman as a result of the non-renewal of the contract of employment or on its expiry; whereas the second part postulates termination of such contract of employment in terms of stipulation contained in that behalf. "

11. The question as to whether Chapter V-A of the will apply or not would be dependent on the issue as to whether an order of retrenchment comes within the purview of Section 2( oo ) ( bb ) of theor not. If the termination of service in view of the exception contained in clause ( bb ) of Section 2( oo ) of theis not a 'retrenchment', the question of applicability of Chapter VA thereof would not arise.

(iv) In the case of Bhavnagar Municipal Corpn. v. Salimbhai Umarbhai Mansuri, (2013) 14 SCC 456 , same view has again been taken by the Apex court , which as under:

9. The above order was signed by the respondent and, therefore, bound by the terms and conditions of the office order. The question is, whether termination of the service of the respondent on the expiry of the periods mentioned above would amount to retrenchment Facts in this case clearly show, so found by the Labour Court itself that the respondent had not worked continuously for 240 days in a year to claim the benefit of Sections 25- F, G and 25-H of the ID Act. Therefore, the only question to be considered is whether termination of service of the respondent on the basis of the contract of appointment would amount to retrenchment within the meaning of Section 25-H of the ID Act so as to claim reinstatement.

10. A reference to Sections 2(oo) and (bb) of thewould be apposite:

'2. Definitions.

* * *

(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

* * *

(bb) 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;' Section 2(bb) says that if the termination of the service of workman is as a result of non-renewal of the contract between the employer and the workman on its expiry of such contract being terminated under a stipulation in that behalf contained therein, the same would not constitute retrenchment.

11. The facts would clearly indicate that the respondents service was terminated on the expiry of the fixed periods mentioned in the office orders and that he had worked only for 54 days. The mere fact that the appointment orders used the expression 'daily wages' does not make the appointment 'casual' because it is the substance that matters, not the form. The contract of appointment consciously entered into by the employer and the employee would, over and above the specific terms of the written agreement, indicates that the employment is short-lived and the same is liable to termination, on the fixed period mentioned in the contract of appointment.

12. The learned counsel appearing for the respondent submitted that the respondent is entitled to the benefit of Sections 25-G and 25-H, the same are extracted herein below:

' 25-G. Procedure for retrenchment. -- Where any workman in an industrial establishment, who is a citizen of India, is to be retrenched and he belongs to a particular category of workmen in that establishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman.

25-H. Re-employment of retrenched workmen .-- Where any workmen are retrenched and the employer proposes to take into his employ any persons, he shall, in such manner as may be prescribed, give an opportunity to the retrenched workmen who are citizens of India to offer themselves for re-employment, and such retrenched workmen who offer themselves for re-employment shall have preference over other persons. "

13. Section 25-H will apply only if the respondent establishes that there had been retrenchment. The facts will clearly indicate that there was no retrenchment under Section 2(oo) read with Section 2(bb) of the ID Act. Consequently, Section 25-H would not apply to the facts of the case. Similar is the factual and legal situation in the civil appeal arising out of SLP (C) No. 5387 of 2012 as well.

7. It is clear from the above that in view of the definition of 'retrenchment' as contained in Section 2( oo )( bb ), the respondent having been appointed on contract basis, the provisions of Section 25-F will have no application. In the facts and circumstances of the case when the termination cannot be said to be 'retrenchment' and therefore provisions of section 25F shall not be applicable exclusively in view of section 2( oo ) ( bb ) of theof 1947. The respondent was appointed from 2.07.2009 to 30.6.2013 i.e. for the fixed period of 4 years with specific conditions as mention ed above. She accepted the appointment with open eye . After expiry of the period the period of appointment the pet has decided not to renew her contract. Even otherwise during service she tried to implicate the officers of the petitioner in a false criminal case. The learned Labor Court has failed to considered the definition of section 2(oo)(bb) and section 25F of theof 1947, hence the impugned award is unsustainable in law is hereby set-aside.

8. Resultantly writ petition is allowed. No order as to cost.