Can an employer give repeated breaks to an employee?
Giving repeated appointments to a workman for short duration to deprive them of their rights under section 25F, Industrial Dispute Act, is unfair. Even otherwise such breaks amount to unfair labour practice as enumerated in clause 10 of the Fifth Schedule of the Industrial Disputes Act, 1947 as amended in 1984.1 In another case, the Punjab and Haryana High Court has held that an employer cannot be permitted to give repeated breaks which will cause complete injustice to the workman and also to deviate from the provisions of law of retrenchment.2 Termination of a workman who has been working for over 18 years with notional breaks by giving appointments year after year or even after six months should have been set aside by the Labour Court when no retrenchment compensation was paid and also the breaks were given to the workman so that he does not attain the status of permanency hence he will be entitled to reinstatement.2 The Supreme Court has held that where services of workman were terminated on a regular basis and she had been appointed for 89 days after a gap of one or two days and completed 240 days in the year, section 2(oo)(bb) of Industrial Disputes Act, excluding terminations of service from the purview of ‘retrenchment’ would not be attracted since such action will amount to unfair labour practice on the part of the appellant-employer.3 The Allahabad High Court has held that service of the petitioner is directed to be restored since there had been repeated oral dispensation of his service year after year whereas he has been working for over 13 years.4 The Madhya Pradesh High Court has held that termination of a workman who has been working for over 18 years with notional breaks by giving appointments year after year or even after six months should have been set aside by the Labour Court when no retrenchment compensation was paid and also the breaks were given to the workman so that he does not attain the status of permanency hence he will be entitled to reinstatement with 25% back-wages.5 Issuance of appointment letters for fixed-terms successively is illegal in light of section 2(ra) read with item 10 of Fifth Schedule to the Industrial Disputes Act, 1947 pertaining to unfair labour practice i.e. to employ workmen as ‘badlis’, casuals, temporaries and to continue them, as such, for years with the object of depriving them of the status and privileges of permanent workmen whereas the nature of work was perennial.6
Source: H L Kumar, Labour Problems & Remedies, Universal
1. Ferozepur Central Co-operative Bank Ltd. v. Labour Court, Bhatinda, 1985 (67) FJR 367 (P&H HC).
2. Kurukshetra Central Co-op. Bank Ltd. v. State of Haryana, 1993 LLR 67 (P&H HC).
3. Haryana State Electronics Development Corporation v. Mamni, 2006 LLR 667 (SC): AIR 2006 SC 2427: 2006 AIR SCW 2979.
4. Surendra Tripathi v. State of Uttar Pradesh, 2008 LLR 450 (All HC).
5. Pritam Singh v. Cancer Hospital & Research Institute, Gwalior, 2009 LLR 275 (MP HC).
6. Sunder Singh v. P.O. Industrial Tribunal-I, 2013 LLR 420 (Del HC).