Nilesh M. Mahadeshwar Vs the Presiding Officer and Anr.

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 ORDINARY ORIGINAL CIVIL JURISDICTION
 WRIT PETITION NO.1589 OF 2006
 Nilesh M. Mahadeshwar
 a citizen of India, Age 39 years,
 residing at C-711, Shivdarshan,
 Satyanagar Co-operative Housing
 Society, Saibaba Mandir Main Road
 Borivali (West), Mumbai 400 092. : Petitioner
 V/s.
 1. The Presiding Officer
 Central Government Industrial
 Tribunal No.1, Mumbai
 Shram Raksha Bhvan,
 Sion, Mumbai 400 022.
 2. The Seamen’s Provident Fund
 Commissioner, having office at
 Krupanidihi, 3rd floor,
 Walchand Hirachand Marg,
 Ballard Estate, Mumbai 400 001. : Respondents
 ...
 Mr.Jay Prakash Sawant for the petitioner.
 Ms S. Priya for respondent no.2.
 ...

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CORAM : S.A.BOBDE, J.

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 DATE : AUGUST 12, 2008.

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ORAL JUDGEMENT:

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 1. The petitioner has challenged the award dated

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 1.12.2005 of the Central Government Industrial Tribunal
 No.1, Mumbai, holding that the action of the Seamen’s
 Provident Fund Commissioner in terminating the
 petitioner’s service is legal and justified.

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 2. The petitioner was employed as a Junior Assistant with
 effect from 25.4.1994. The appointment order stated that
 his appointment was purely provisional for a period of six
 months and conditional upon: (i) showing aptitude to
 work; (ii) punctuality in attendance; and (iii) devotion
 to duties. The petitioner’s services were liable for
 termination at any time without assigning any reason. The
 period of six months was to expire on 24.10.1994. His
 services were terminated with effect from 21.10.1994 i.e.
 three days before the specified term.

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 3. The petitioner prayed for a reference before the
 appropriate Government. The Government rejected his
 prayer, inter alia, on the ground that the request was
 delayed and he had not completed 240 days. He, therefore,
 approached this Court. In Nilesh M. Mahadeshwar v.
Union of India & Anr., reported in (2003 III CLR 854), a
 Division Bench of this Court held that the Government

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 could not have refused to refer the dispute since it
 existed and merely because he had not completed 240 days,
 it could not be said that the dispute could not be
 referred since the dispute was triable under section 25H
 of the Industrial Disputes Act, 1947, hereinafter referred
 to as the "Act", even in respect of a workman who has not
 completed 240 days. After the order of this Court, the
 Central Government referred the matter to the Industrial
 Tribunal which decided the same by the impugned award.

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 4. The Central Government Industrial Tribunal No.1 has

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 rejected the petitioner’s case on the ground that the
 petitioner was employed in a temporary capacity for a
 fixed period. His services are not liable to be
 terminated at any time without assigning any reason. In
 the circumstances, the termination did not amount to
 retrenchment by virtue of section 2(oo)(bb) of the Act and
 the provisions of the Act which deal with retrenchment did
 not apply to the petitioner’s case.

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 5. Mr.Sawant, the learned counsel for the petitioner,
 challenged the award of the Industrial Tribunal on the
 ground that the Industrial Tribunal has committed an error
 of law in not treating the petitioner’s termination as

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 retrenchment. According to the learned counsel, the
 Industrial Tribunal ought to have held that the

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 petitioner’s termination was without following the

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 procedure prescribed under section 25F of the Act. No
 notice or one month’s salary in lieu of notice was given
 and that, in any case, the act of not re-employing the
 petitioner was contrary to section 25H of the Act since
 others had been employed after the petitioner’s
 termination. It was also contended by Mr.Sawant that the
 provisions of the Model Standing Orders framed under the
 Industrial Employment (Standing Orders) Act, 1946, in
 particular standing order nos.2 and 13 apply, as a result
 of which the petitioner’s services could not have been
 terminated without one month’s notice in writing with
 reasons or wages in lieu thereof. The contention advanced
 before this Court were also advanced before the Industrial

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 Tribunal. The Industrial Tribunal held that the
 petitioner’s appointment was for a fixed period and
 clearly governed by clause (oo)(bb) of the Act and,
 therefore, section 25F did not apply. The Industrial
 Tribunal relied on the judgement of the Supreme Court in
Venugopal v. Divisional Manager, LIC, reported in (1994)
 2 SCC 323, wherein the Supreme Court held that the
 employer could terminate the service in terms of the

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 letter of appointment unless it was a colourable exercise
 of power. Having regard to the condition in the
 petitioner’s appointment letter that the services could be
 terminated at any stage without assigning any reason, the

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 Industrial Tribunal applied the ratio of the decision of
 the Supreme Court in Escorts Limited v. Presiding
 Officer, reported in 1997 II SCC 521, wherein it was held
 that such a termination would not amount to retrenchment
 and did not apply the provisions of section 25F and 25G of
 the Act. The learned counsel for the petitioner relied on
 a decision of the Supreme Court in Central Bank of India
 v. Satyam & Ors., reported in 1996 II CLR 1095. That
 case has no application to the present case since that
 case involves the services of a workman who has been in
 continuous service of not less than one year. In such
 case, the Supreme Court observed that section 25F would
 apply to the retrenchment of a workman who has been in
 continuous service of less than one year.

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 6. The learned counsel for the petitioner next relied on
 the decision of the Delhi High Court in Gopalv. MDC &
Anr., reported in 2003 III CLR 1016. The Delhi High Court
 relied on the decision of the Supreme Court in Samishta
Dubev. City Board, Etawah & Anr., reported in 1999 I CLR
 854, took the view that it cannot be said that the workmen
 who had not completed 240 days of service had no
 industrial rights under the Act and, therefore, held that
 section 25G was applicable in such a case. That case has
 no application to the facts of the present case. The
 petitioner has not established any breach of section 25G

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 to the effect that he was not the last person to be

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 employed in that category. In any case, as observed
 earlier, there is a clear and cogent finding of the
 Industrial Tribunal that the termination of the
 petitioner’s services does not amount to retrenchment.
 That finding is a valid finding and section 25G would have
 no application.

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 7. It was next contended by the learned counsel for the
 petitioner, relying on the decision in S.M. Nilajkar &
Ors. v. Telecom District Manager, Karnataka, reported in
 2003 II CLR 233, that the termination of the petitioner’s
 services could be said to be retrenchment because the
 respondent has not shown that he was appointed for a
 project which came to an end simultaneously with the
 termination of his services. That case greatly differs in
 facts from the present case. There the employer had
 contended that the workmen were engaged as casual workers
 in a project. He had apparently not adduced any evidence
 to prove in support of the contention and further that the
 project had come to an end. In the circumstances, the
 Supreme Court held that the termination of service of a
 workman engaged in a scheme or project may not amount to
 retrenchment within the meaning of sub-clause (bb) subject
 to the following conditions being satisfied:-

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 "(i) that the workman was employed in a

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 project or scheme of temporary duration;

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 (ii) the employment was on a contract, and
 not as a daily-wager simplicitor, which
 provided inter alia that the employment
 shall come to an end on the expiry of the
 scheme or project; and

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 (iii) the employment came to an end
 simultaneously with the termination of the
 scheme or project and consistently with the
 terms of the contract;

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 (iv) the workman ought to have been
 apprised or made aware of the abovesaid
 terms by the employer at the commencement
 of employment."

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 For the reasons stated above, the reliance of that case
 is misplaced.

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 8. It was lastly contended by Mr.Sawant that the
 termination was in violation of Model Standing Order
 no.13. For terminating the service of a workman, a
 notice of one month in writing with reasons or wages in

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 lieu thereof shall be given by the employer. There is no
 merit in this contention in view of that very Standing
 Order which provides that no notice of termination of
 employment is necessary in case of temporary and badli
 workmen. It is clear that the petitioner was employed on
 a temporary basis i.e. of an essentially temporary
 nature likely to be finished within a limited period in
 accordance with the order of appointment. There is no
 material to show that the work in which the petitioner
 was appointed was not likely to be finished within a
 limited period. The petitioner was appointed as a Junior
 Assistant in the Accounts Department. From the fact that
 accounts continued, it cannot be inferred that the work
 for which the petitioner was appointed also continued.

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 9. In this view of the matter, there is no merit in the
 challenge to the award which does not suffer from any
 error of law apparent from the record. The Writ Petition
 is, therefore, dismissed. The rule shall stand
 discharged.

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 S.A. BOBDE, J.

Nilesh M. Mahadeshwar v. the Presiding Officer and Anr.

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Nilesh M. Mahadeshwar v. the Presiding Officer and Anr.

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