State Of Rajasthan And Others vs.

Rameshwar Lal Gahlot  Supreme Court Of India

3. The next argument of the learned counsel for the petitioner is that the appointment of the workman was for
a particular period and after the period elapsed, the appointment automatically came to an end by
efflux of time. Therefore, there could be no retrenchment and the case is covered under S. 2(oo)
(bb) of the Industrial  Disputes  Act,  1947  (hereinafter referred to as the Act). He has cited the case of State of Rajasthan v. Rameshwar Lal Gahlot [1996 (1) L.L.N

It is observed by the Supreme Court in that case that when the appointment was for a fixed period it is covered under S. 2( oo)(bb) of
296]. 

the Act. It is observed by the Supreme Court that unless there is a finding that power under Cl. (bb) of S. 2(oo) was misused or vitiated by
its mala fide exercise, it cannot be held that termination is illegal.

10. In State of Rajasthan v. Rameshwar Lal Gahlot, 1996 LAB I.C

1914 : [1996 (1) SLR 595 (SC)] it was held that where an appointment
is for fixed period, it is covered by Section 2(oo)
(bb) of the Industrial Disputes Act, 1947. Termination would not
amount to retrenchment unless it is shown that power under clause
(bb) of Section 2(oo) was misused or vitiated by its mala fide
exercise. In this case, the power to terminate was misused by the
management and the appointment for a fixed period was a
colourable exercise of power.

Ramesh Kumar vs. State Of Haryana. Supreme Court Of India

11.In this case the services of the respondent had been terminated on
a regular basis and she had been reappointed after a gap of one or
two days. Such a course of action was adopted by the appellant with
a view to defeat the object of the Act. Section 2(oo)
(bb) of the Industrial Disputes Act, 1947, therefore, is not attracted
in the instant case." Ramesh Kumar v. State of Haryana,
(2010) 2 SCC 543, 18. It is to be noted in the case of termination of
casual employee what is required to be seen is whether a workman
has completed 240 days in the preceding 12 months or not. If
sufficient materials are shown that the workman has completed 240
days then his service cannot be terminated without giving notice or
compensation in lieu of it in terms of Section 25-F. The High Court
failed to appreciate that in the present case the appellant has
completed 240 days in the preceding 12 months and no notice or
compensation in lieu of it was given to him, in such circumstances his
termination was illegal. All the decisions relied on by the High Court
are not applicable to the case on hand more particularly, in view of
the specific factual finding by the Labour Court. :Nagar Palika
Nigam Thr vs. Arun Sharma

Bhuvnesh Kumar Dwivedi vs. Hindalco Industries Limited  Supreme Court Of India
5.  Seriously controverting the plea that termination  of  the service  of  the respondent is saved under section  2(oo)(bb)  of  the  industrial  disputes  act,  1947,
Mr. Ajit Kumar, the learned Senior Counsel for the respondent refers to decision in Bhuvnesh Kumar Dwivedi Vs. Hindalco Industries Limited,   (2014) 11 SCC 85
and contends that once the period of engagement of the respondent from 24.03.1995 to 24.04.1997 is not disputed b y the management, the mandate of
section 25f of the  industrial  disputes  act, 1947 must be followed.

{ FOR SECTION 25F] Employers, Tata Steel Ltd. vs. Concerned Workers JHARKHAND HC

15. This Court in Kurukshetra Central Co-operative Bank

Limited, Kurukshetra v. State of Haryana, (1993(1) SCT 109)
held as follows :- 25 https://indiankanoon.org/doc/94350/

Bhavnagar Municipal Corporation vs. Salimbhai Umarbhai Mansuri. Supreme

Court Of India
5. In case of Bhavnagar Municipal Corporation Vs.Salimbhai Umarbhai
Mansuri, reported at 2013 LLR 104, the Apex Court has concluded that when
the termination of an employee amounts to retrenchment, Section 25F would
be applicable. It is only when the termination falls u/s 2(oo) (bb), it would
amount to an exception to retrenchment. In the applicability  of Section 2(oo)
(bb)  of the  Industrial  Disputes Act,  1947, Section 25F, 25G and 25H would not
be applicable. In the instant case, it is an admitted position that the petitioner
had worked for 240 days in the continuous service of the respondents.
Sandip Pandurang Nannaware vs. Shrigonda Krishi Utpana Bazar
Samiti And District Deputy Registrar
Shankar Chakravarti vs. Britannia Biscuit Co. Ltd. And Another Supreme Court Of India
7.  Now, the first submission made by Mrs. Doshi, appearing on behalf of the petitioner, is that there was no
proper pleading by the employee in his application that his services were terminated in violation of section  25f
of the  industrial disputes act and, therefore, the petitioner did not have enough opportunity of meeting the
case of the employee. Relying upon the judgment of the Supreme Court in (Shankar Chakravarti v. Britannia
Biscuits Co. Ltd. and another)1, reported in A.I.R. 1979 S.C. 1652, Mrs. Doshi submitted that it is a well settled
principle of law that the allegation which was not pleaded, and even if evidence is adduced in that regard,
cannot be examined because the other side had no notice of it and if such evidence is entertained it would
tantamount to granting unfair advantage to the party who had not pleaded its case properly. There is no
dispute about the law enuciated by Their Lordships of the Supreme Court in this regard but it would be unfair to
the employee to say that there was no proper pleading on account of which an opportunity was denied to the
petitioner to meet the case of the employee that his services were terminated in
violation of section  25f of the industrial  disputes  act. 

In a the case of a employee that his services were terminated all of a sudden
without giving any notice or reason or without following any procedure of
Section 25F, the same is illegal, improper and in violation of principles of
natural justice. 
The only thing which the employee omitted to mention in his application
was section 25f of the industrial disputes act, 1947.
Raymonds Woollen Mills Ltd. vs. C.S. Sonawane and Ors.

G. Mackertich vs. Steuart And Co., Ltd.. Supreme Court Of India

21. Reliance was also placed upon the decision of this Court in Tara Chand v. Ishwar Dass,
AIR 1982 Himachal Pradesh 29, wherein, in a suit for eviction, a  plea was raised by the
plaintiff-appellant for the first time in the High Court that even if tenant was held to be
tenant-at-will still he could be ejected without notice under Section 106 of Transfer of
Property Act. It was held that a new  plea cannot be allowed to be taken. Similar
observations were made by their Lordships in C. Mackertich v. Steuart & Co. Ltd., AIR 1970
Supreme Court 839 that a new plea  should not have been allowed to be raised when the
point was not raised in the written statement.22. It is true that defendant No. 2 was a party to
the suit filed by the plaintiffs but no relief was claimed as against her. Defendant No. 2 was
proceeded ex parte in the suit and in case such a plea had been raised by the appellants at
any stage before the learned District Judge, he could have considered the question as to
whether defendant No2. was required to be impleaded as a party or not in the appeal filed by
the State of H.P However, no such objection was taken at any time before the learned
District Judge. Therefore, the learned District Judge had no opportunity to decide this
question as to the effect of non-impleadment of defendant No. 2 Vidya Devi as a party in the
appeal filed by the State of H.P However, the appellants had impleaded the said defendant
No. 2 Vidya Devi as a party in the appeal filed by them before the learned District Judge and
defendant No. 2 was also represented in the appeal filed by Judhia Devi etc. before the
learned District Judge, who also never pointed out this fact to the learned Appellate Court at
any time that in the appeal filed by the State of H.P, she has not been impleaded as a party.
Both the appeals were decided together and, therefore, defendant No. 2 had an opportunity
to contest the case and make submissions once the judgment was passed in both the appeals
together by the learned First Appellate Court. Defendant No. 2 may have been a proper
party, but it cannot be said that she was a necessary party once no claim has been put up by
her and no relief has been granted as against her. At this stage, after more than 10 years, it
will not be proper to remand the case to the court of the learned District Judge to consider
this question since the findings have not affected defendant No. 2 in any manner and at the
most she was herself competent to challenge those findings which has not been done by her
and at this belated stage, I am of the opinion that it has not affected the merits of the case,
once defendant No. 2 was not impleaded as a party by the State and no objection was taken
by the appellants at any time. The appellants had impleaded the said defendant No. 2 as a
party in the appeal and as such this plea cannot be allowed to be raised at a belated stage
once it was not raised before the learned District Judge.

Krishan Singh vs. Executive Engineer, Haryana State Agricultural Marketing

Board, Rohtak (Haryana) Supreme Court Of India
(33) It is not the case of the respondent No. 3 before respondent No. 2, i. e.  Labour  Commissioner-cum-
Registrar, Trade Union that respondent No. 3 has the fundamental right under article 19 (1) (c) of the
constitution of india to form Trade Union. In such case, whether this  court, in the present writ petition can
The Apex  Court  in Krishan Singh Vs
entertain such  new  plea of respondent No. 3.
Executive Engineer, Haryana State Agricultural Marketing Board, Rohtak
(Haryana): (2010) 3 SCC 637 held that if no  plea  taken by the
employer  before  the  Labour  Court  that the post in which the workmen
are working was not sanctioned or is engagement contrary to the
statutory rules or that he was employed elsewhere or there was no
vacancy, it should not be taken into consideration by the  High  Court  in
the writ petition. Paras 17 and 21 of the SCC in Krishan Singh's case
(supra) read as follows:
North Eastern Chemicals vs. State Of Assam Others

Pfizer Ltd. vs. Mazdoor Congress And Others Supreme Court Of India

7. Learned Advocate Mrs. Agni, on behalf of the respondent, has submitted that the plea in
relation to non-compliance of section 45-A of the Act, was not taken by the
petitioner/accused before the courts below and, therefore, ought not to be allowed to be
taken for the first time in extraordinary jurisdiction under section 482 of the code. In support
of the submission, learned Counsel has placed reliance on (Pfizer Ltd. Vs. Mazdoor
Congress & ors.)3, 1997(2) Bom.C.R. 36 : 1996 DGLS 1224 : 1996(5) S.C.C. 609 : A.I.R.
1996 S.C. 2618, wherein the Apex Court observed thus : There was no justification
whatsoever for the High Court  to have allowed respondents Nos. 2 and 3 to raise
a  new  contention that there had been an unfair labour practice as contemplated by Item 1(f)
and the appellant had acted with undue haste.  No such contention was urged-
before the Labour Court  or in revision before the Industrial Court. Even in the writ petition
filed in the High Court  under article 227 of the constitution, challenging the order of
the Labour Court and the Industrial Court dismissing the complaints under section 28 of the
said Act, no specific contention had been raised to the effect that there was any undue haste
on the part of the appellant in issuing the termination order and which could be regarded as
an unfair labour  practice. Merely because in an affidavit
filed before the Labour Court  there was a general statement of unfair labour practice
covered by Items 1(a) to (f) could be no ground for the High Court to come to the conclusion
that a case under Item 1(f) had been made out because respondents 2 and 3 had not led any
evidence in this behalf and nor was this contention specifically raised and argued, as already
noticed, before  the Labour Court and the Industrial Court or even in the writ petition
filed before the High  Court.
Ashok Kumar Jalan Another vs. Employees S tate Insurance Corporation