Madras High Court
The Commissioner vs K.Sampath on 17 December, 2014
Author: D.Hariparanthaman
Bench: D.Hariparanthaman
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:17.12.2014
CORAM
THE HON'BLE MR.JUSTICE D.HARIPARANTHAMAN
W.P.No.11949 of 2006
The Commissioner,
Thiruvallur Municipality,
Tiruvallur. .. Petitioner
Vs.
1. K.Sampath
2. The Presiding Officer,
II Additional Labour Court,
Chennai. .. Respondents
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Prayer:- The Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Certiorari, calling for the records of the 2nd respondent, made in I.D.No.244 /00 dt.16.05.2005, wherein the 2nd respondent passed an award in favour of the 1st respondent ordering reinstatement with full back wages, continuity of service and all other attendant benefits and quash the same.
* * *
For Petitioner : Mr. V.Subbarayan
For Respondent No.1 : Mr. K.M.Ramesh
Respondent No.2 : Court
O R D E R
The writ petitioner is the Thiruvallur Municipality. The first respondent was employed from 01.04.1998 by the Writ petitioner Municipality to prepare estimate for the civil project works and to supervise the said work. He was paid on daily wages basis. Initially, he was paid wages at the rate of Rs.115/- per day in the year 1998. Later, in the year 1999, he was paid at the rate of Rs.144/- per day. While so, the first respondent was orally terminated from service on 04.10.1999.
2.The first respondent took up his non employment before the second respondent Labour Court in I.D.No.244 of 2000, after his conciliatory efforts failed. Before the Labour Court, the first respondent pleaded that he was continuously employed by the petitioner Municipality, without any break from 01.04.1998, till he was denied employment on 04.10.1999. Thus, he served more than 240 days in one year. It was further pleaded that he was engaged continuously on all the days except on weekly off. Further, even though the work in which he was employed still exists, the petitioner Municipality terminated him from service. He also pleaded that the denial of employment amounts to retrenchment under Section 2(oo) of the Industrial Disputes Act, 1947 (Shortly the I.D. Act). Since the mandatory conditions imposed under Section 25-F of the I.D. Act were not complied with, his termination was void ab initio.
3.Before the Labour Court, the petitioner Municipality filed a counter statement, wherein it was stated that the first respondent workman was employed on temporary basis for the project works, whenever required. He did not work continuously. The engagement of the first respondent was depending on the necessity of the Civil Project works. Further, it was stated that he was not recruited through Employment Exchange. When the Commissioner of Municipal Administration, Chennai, issued a circular dated 29.09.1999 to all the Municipalities to stop engaging the temporary employees immediately, who were engaged in service after 01.10.1996, he was terminated from service, since the first respondent was engaged only from 01.04.1998.
4.In the counter statement filed before the Labour Court, nothing was stated about the complaint made by the first respondent workman relating to non compliance of Section 25-F of the I.D. Act.
5.Thereafter, the first respondent filed I.A.No.16 of 2001 seeking direction to the petitioner Municipality to produce the NMR register, so as to prove his contention that he was continuously engaged by the petitioner Municipality. Though the said application was allowed, the petitioner Municipality did not choose to produce the NMR Register.
6.Before the Labour Court, the first respondent workman got examined himself as WW1 and marked 5 documents as Exs.W1 to W5. The petitioner Municipality examined one Junior Assistant by name Thiru Shanmugam as MW1 and marked 2 documents as Exs.M1 and M2.
7.After hearing both sides, the Labour Court passed an award dated 16.05.2005 holding that the non employment of the first respondent was not justified and the termination amounts to retrenchment as per Section 2(oo) of the I.D. Act and non compliance of mandatory conditions provided under Section 25-F of the I.D. Act would make the termination illegal. The Labour Court passed a detailed award considering the evidence produced before it and more particularly based on the evidence of the witness deposed on the side of the petitioner Municipality. The Labour Court took note of the admission made by the witness of the petitioner Municipality that the first respondent workman was continuously employed for more than 240 days in a calender year. Further, the Labour Court took note of the fact that the petitioner Municipality failed to produce the records, though a direction was issued in I.A.No.16 of 2001. Ultimately, the Labour Court directed to re-instate the first respondent workman in service, with backwages, continuity of service and all other attendant benefits.
8.The petitioner has filed this writ petition to quash the aforesaid award dated 16.05.2005 passed by the second respondent Labour Court in I.D.No.244 of 2000.
9.It is stated in para 6 of the affidavit filed in support of this writ petition that the first respondent workman did not work for more than 240 days in a calender year and hence, Section 25-F of the I.D. Act could not be relied on by the workman. The writ petitioner further pleaded that the first respondent could not seek permanency under the provisions of the Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workman) Act, 1981 or under the Industrial Disputes Act, 1947. The petitioner relied on a Division Bench Judgment of this Court dated 24.10.2002 in Writ Appeal Nos.2501 and 2502 of 2001 in this regard. It is further pleaded in the affidavit that the regularisation of the employees in the Municipalities was based on the Government Orders and the details of the Government Orders are referred to therein. The petitioner also pleaded that since the first respondent workman was a NMR, he is not entitled to claim any benefit under the Industrial Disputes Act. A specific ground is made in ground B to the aforesaid effect.
10.Heard both sides.
11.The learned counsel for the petitioner has vehemently contended that since the first respondent workman was only a NMR workman employed on temporary basis, the Industrial Disputes Act is not applicable to him. He further submitted that since the Commissioner of Municipal Administration, who is an higher authority, issued a letter dated 29.09.1999, which was marked as Ex.M1 before the Labour Court, directing the Municipalities, including the petitioner, to dispense with the service of NMR workmen who were employed after 01.10.1996, the said direction was complied with and therefore, the Labour Court has committed an error and the writ petitioner could not be faulted for the termination of the service of the first respondent.
12.In support of his contention, the learned counsel for the petitioner has relied on the following judgments :
(i) Judgment of the Kerala High Court in Eranalloor Service Co-operative Bank Ltd., V. Labour Court and others [Vol.71 Factories Journal page 20]
(ii) Division Bench judgment of this Court in English Electric Company of India Ltd. V. Industrial Tribunal Madras and another [1990 (1) L.L.J. 344]
(iii) Division Bench judgment of this Court in L.Justine and another Vs. The Registrar of Co-operative Societies, Chennai 600 010 and two others (Writ Appeal Nos. 2501 & 2502 of 2001 Dated 24.10.2012)
13.The learned counsel for the petitioner has submitted that since the appointment of the first respondent workman was not a valid one, the provisions of Sections 2(oo) and 25-F of the I.D. Act, 1947 could not be attracted, as per the judgment of the Kerala High Court in Eranalloor Service Co-operative Bank Ltd., V. Labour Court and others reported in (Vol.71 Factories Journal Reports at page 20).
14.The learned counsel for the petitioner has also relied on a Division Bench judgment of this Court in English Electric Company of India Ltd. V. Industrial Tribunal Madras and another [1990 (1) L.L.J. 344] wherein, the Division Bench reversed the order of the Tribunal as well as the learned Single Judge of this Court directing reinstatement of Casual workman for violation of Section 25-F of the I.D. Act as those workmen rendered 240 days of service in one year.
15.The learned counsel for the petitioner relied upon a judgment of the Division Bench in L.Justine and another Vs. The Registrar of Co-operative Societies, Chennai 600 010 and two others (Writ Appeal Nos. 2501 and 2502 of 2001, dated 24.10.2012) and submitted that the said judgment was specifically referred to in para 8 as well as in ground (D) of the affidavit filed in support of the writ petition.
16.On the other hand, the learned counsel for the first respondent workman has submitted that the definition of workman under Section 2(s) of the I.D.Act includes all category of workmen viz., casual, temporary, etc. He has relied on the Apex Court judgment in Devinder Singh Vs. Municipal Council, Sanaur [AIR 2011 SC 2532]. He has drawn my attention to Paras 12 & 13 of the said judgment. He has further submitted that the judgment of the Division Bench of this Court in English Electric Company's case (cited supra) relied on by the petitioner was reversed by the Apex Court in Workmen of English Electric Co. of India Ltd., V. The Presiding Officer and Another, [1990 (1) LLN 124]. He also submitted that the judgment of the Kerala High Court in Eranalloor Service Co-operative Bank's case (cited supra) cannot be relied on by the learned counsel for the petitioner, in view of the judgment of the Apex Court in Devinder Singh's case (cited supra).
17.The learned counsel for the first respondent workman has further submitted that the judgment of a Division Bench of this Court in L. Justine's case (cited supra) never considered the effect of termination of casual or temporary employees, who rendered 240 days service in a calender year, without complying with the mandatory provisions of Section 2(oo) and 25-F of the I.D. Act, by the Co-operative Societies. According to him, in that case, the Division Bench has held that an employee of the Co-operative Institution, who was recruited in violation of the statutory rules, could not ask for regularisation of service, basing on G.O.Ms.86, Cooperation, Food and Consumer Protection Department, dated 12.03.2001, particularly, if he was appointed after 12.03.2001.
18.The learned counsel for the first respondent workman has brought to my notice para 20 of the Apex Court judgment in Devinder Singh's case (cited supra) wherein, the Apex Court has catalogued a long list of judgments, in any by which, the Apex Court has categorically held that if the provisions contained in Section 25-F of the I.D. Act was not complied with, the termination was void ab initio even in the case of casual and temporary workmen.
19.The learned counsel for the first respondent workman has also relied on the judgment of the Apex Court judgment in S.M.Nilajkar And others Vs. Telecom District Manager, Karnataka [2003 (4) SCC 27] and more particularly, paras 13 and 14 of the said judgment. According to him, the said judgment could squarely be applied to this case.
20.In this regard, the learned counsel for the first respondent workman took me through the records and more particularly, the award of the Labour Court, wherein, it is held that the work in which the first respondent was employed continued to exist, even after the termination of the first respondent.
21.I have considered the submissions made on either side and perused the materials available on record.
22.The following issues arise for consideration in this case :
1) Whether a person employed on temporary basis by an employer is a workman under Section 2(s) of the Industrial Disputes Act, 1947 ?
2) What is the effect of non compliance of mandatory conditions of Section 25-F of the Industrial Disputes Act, 1947 in the case termination of a workman, who rendered 240 days of service in one year? Issue No. 1:-
23.It is relevant to extract Section 2(s) of the I.D. Act, which reads as follows:
2(s) Workman means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person.
24.As rightly contended by the learned counsel for the first respondent workman, Section 2(s) of the I.D. Act includes all categories of workman, such as causal labourers, Temporary labourers and badlis etc. In fact, the Apex Court has considered the same in its judgment in Devinder Singh's case (cited supra). In that case, the appellant therein was engaged as a clerk from 01.08.1994 to 29.09.1996 on a consolidated pay of Rs.1000/- per month by the respondent Municipal Corporation. Since the Director, Local Self Government did not give approval to the resolution passed for his employment, he was terminated from service. The service of the appellant therein was dispensed with, without complying with the mandatory conditions provided under Section 25(F) of the Act. The Labour Court ordered reinstatement without backwages, for non compliance of Section 25-F of the I.D. Act. But the Division Bench of the Punjab and Haryana High Court allowed the writ petition filed by the respondent therein, by following the judgments of the Apex Court in Secretary, State of Karnataka Vs. Umadevi [2006 (1) SCC 1] and other judgments and held that the Labour Court should not have ordered reinstatement of the workman, since his appointment was contrary to recruitment rules. While considering the effect of 25-F of I.D. Act on the termination of a workman, who was appointed contrary to the rules, the Apex Court held that even those employees are workmen under Section 2(s) of the Act and termination of such workmen is void ab initio for not complying with the provisions of Section 25-F of the I.D.Act.
25.In this context, paras 12 to 14 of the judgment in Devinder Singh's case (cited supra) are extracted hereunder:
12.Section 2(s) contains an exhaustive definition of the term 'workman'. The definition takes within its ambit any person including an apprentice employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward and it is immaterial that the terms of employment are not reduced into writing. The definition also includes a person, who has been dismissed, discharged or retrenched in connection with an industrial dispute or as a consequence of such dispute or whose dismissal, discharge or retrenchment has led to that dispute. The last segment of the definition specifies certain exclusions. A person to whom the Air Force Act, 1950, or the Army Act, 1950, or the navy Act, 1957, is applicable or who is employed in the police service as an officer or other employee of a prison or who is employed mainly in managerial or administrative capacity or who is employed in a supervisory capacity and is drawing specified wages per mensem or exercises mainly managerial functions does not fall within the definition of the term ' workman'.
13.The source of employment, the method of recruitment, the terms and conditions of employment/contract of service, the quantum of wages/pay and the mode of payment are not at all relevant for deciding whether or not a person is a workman within the meaning of Section 2(s) of the Act.
14.It is apposite to observe that the definition of workman also does not make any distinction between full-time and part-time employee or a person appointed on contract basis. There is nothing in the plain language of Section 2(s) from which it can be inferred that only a person employed on a regular basis or a person employed for doing whole-time job is a workman and the one employed on temporary, part-time or contract basis on fixed wages or as a casual employee or for doing duty for fixed hours is not a workman.
26.In view of the aforesaid pronouncement of the Apex Court, I am of the view that the first respondent workman would also come under Section 2(s) of the I.D.Act. Thus, the first respondent is workman under 2(s) of the I.D. Act. Issue No.1 is answered accordingly.
Issue No.2:-
27.Section 2(oo) of I.D.Act defines retrenchment and it is extracted as follows:
2(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 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 workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or)
(c) termination of the service of a workman on the ground of continued ill-health;
25-F of I.D.Act stipulates the conditions for valid retrenchment and the same is extracted hereunder:
"25-F. Conditions precedent to retrenchment of workmen. - No workman employed in any industry who has been in continuos service for not less than one year under an employer shall be retrenched by that employer until -
(a) the workman has been given 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 the notice
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days average pay for every completed year of continuous service or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette.
28.Section 2(oo) of the I.D. Act covers every type of termination of services of the workmen, by the employer, for any reason whatsoever, other than the one that are specifically excluded in the said section.
29. Further, in this regard, the celebrated case is the judgment of the Apex Court in State Bank of India Vs. N.Sundara Money [1976 (1) SCC 822] rendered by Justice V.R.Krishna Iyer. The Apex Court held that the words termination ...... for any reason whatsoever that occurs in Section 2(oo) of the Act, are the key words. The Apex Court held that every type of termination is covered under Section 2(oo) of the Act. In this regard, para 11 of the judgment in Devinder Singh's case (cited supra) is extracted hereunder:
11. In State Bank of India V. N.Sundara Money (1976) 1 SCC 822, a three Judge Bench of this Court analysed Section 2(oo) and held:
. . . . Termination . . . for any reason whatsoever' are the key words. Whatever the reason, every termination spells retrenchment. So the sole question is, has the employee's service been terminated? Verbal apparel apart, the substance is decisive. A termination takes place where a term expires either by the active step of the master or the running out of the stipulated term. To protect the weak against the strong this policy of comprehensive definition has been effectuated. Termination embraces not merely the act of termination by the employer, but the fact of termination howsoever produced. Maybe, the present may be a hard case, but we can visualise abuses by employers, by suitable verbal devices, circumventing the armour of Section 25-F and Section 2(oo). Without speculating on possibilities, we may agree that retrenchment is no longer terra incognita but area covered by an expansive definition. It means to end, conclude, cease . . . .. . . The ratio of the aforementioned judgment was approved by the Constitution Bench in Punjab Land Development And Reclaimation Corporation Ltd., Chandigarh V. Presiding Officer Labour Court, Chandigarh (1990) 3 SCC 682.
30.It is also useful to extract para 10 of the Apex Court judgment in Devinder Singh's case (cited supra) which reads as follows:
10. The definition of the term retrenchment is quite comprehensive. It covers every type of termination of the service of a workman by the employer for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action. The cases of voluntary retirement of the workman, retirement on reaching the age of superannuation, termination of service as a result of non-renewal of the contract of employment or of such contract being terminated under a stipulation contained therein or termination of the service of a workman on the ground of continued ill health also do not fall within the ambit of retrenchment.
31.The Apex Court also considered Sections 2(oo) and 25-F of the I.D. Act in D.K.Yadav Vs. J.M.A. Industries Limited [1993(3) SCC 259]. Para 4 of the judgment in D.K.Yadav's case (cited supra) is extracted hereunder:
In Punjab Land Development and Reclamation Corporation Limited Vs. Presiding Officer, Labour Court, the Constitution Bench considered the scope of the word 'retrenchment' defined by Section 2(oo) and held in para 71 at page 716 that analysing the definition of retrenchment in Section 2(oo) we find that termination by the employer of the service of a workman would not otherwise have covered the cases excluded in clauses (a) and (b) namely, voluntary retirement and retirement on reaching the stipulated age of retirement or on the grounds of continued ill health. There would be no violational element of the employer. Their express exclusion implies that those would otherwise have been included. In para 77 at page 719 it was further held that right of the employer and the contract of employment has been effected by introducing Section 2(oo). The contention of the management to terminate the service of an employee under the certified standing orders and under the contracts of employment was negatives holding that the right of the management has been affected by introduction of Section 2(oo) and Section 25-F of the Act. The second view was that the right as such has not been affected or taken away, but only an additional social obligation has been imposed on the employer to abide by the mandate of Section 25-F of the Act to tide over the financial difficulty which sub-serves the social policy. This Court relied on the maxim Stat pro ratione valuntas populi; the will of the people stands in place of a reason. In paragraph 82 at page 722 this Court concluded that the definition in Section 2(oo) of the Act of retrenchment means the termination by the employer of the service of a workman for any reason whatsoever except those expressly excluded in the section. Same view was taken by three Benches of three Judges of this Court in State Bank of India V. Shri N.Sundara Money; Delhi Cloth & General Mills Ltd. V. Shambhu Nath Mukherjee and Hindustan Steel Ltd. V. Presiding Officer, Labour Court and two Benchews of two judges in L.Robert D'Souza V. Executive Engineer, Southern Railway and H.D.Singh V. Reserve Bank of India took the same view. Therefore, we find force in the contention of Shri.R.K.Jain, the learned senior counsel for the appellant that the definition 'retrenchment' in Section 2(oo) is a comprehensive one intended to cover any action of the management to put an end to the employment of an employee for any reason whatsoever.
32. Further, Section 25-B of the I.D. Act defines continuous service. Section 25-B(2)(a)(ii) states that a workman is deemed to be in continuous service for a period of one year, if the workman has worked for 240 days in any calendar year during the period of twelve calendar months preceding the date with reference to which the calculation is made. Section 25-B(2)(a) is extracted hereunder :
25-B. Definition of continuous service (2) Where a workman is not in continuous service within the meaning of clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer -
(a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than -
(i) ......
(ii) two hundred and forty days, in any other case.
33. In this case, the learned counsel for the writ petitioner has sought to contend that the workman did not put in 240 days in one year of service. He has provided the details about the number of days the second respondent worked in every month from the date of his joining until the date of termination in paragraph 6 of the affidavit. It is contended that neither in the year 1998 nor in the year 1999, the workman rendered 240 days of service.
34. Such a submission of the learned counsel for the writ petitioner deserves to be rejected, in view of Section 25-B(2)(a) of the I.D.Act, as the Section categorically states that the calculation shall be made for twelve calender months preceding the date with reference to which calculation has to be made. He joined the service on 01.04.1998 and he was terminated from service on 04.10.1999. Hence, the period of twelve months has to be calculated from 04.10.1999 to 03.10.1998 to ascertain as to whether in this period, he worked for 240 days. If such a calculation is made, he worked for 290 days. The calculation cannot be made for 1998 and 1999 separately. Further, from the date of joining of his service, until his termination, he worked for all the days, except the weekly off days. In fact, he worked even on weekly off days, since there are eight weekly off days for a month in the writ petitioner municipality.
35. Further, the Apex Court has considered Section 25-B of the I.D. Act and held in Surendra Kumar Verma V. The Central Government Industrial Tribunal-cum-Labour Court reported in AIR 1981 SC 422 that even if a workman worked for 240 days in 11 months period and terminated from service, he is entitled to protection under Section 25-F of the I.D. Act. That is, the workman need not have worked for 12 calender months. In the said judgment, the workmen did not work for one year. That is, even if a workman worked only for 11 months and during that period of 11 months, he rendered more than 240 days of service, Section 25-F has to be applied, otherwise, the termination is void.
36. Further, at this juncture, it is relevant to extract the following portion from paragraph 13 of the impugned award of the Labour Court :
13. The petitioner herein was examined as W.W.1 before this Court and he has reiterated the averments in the petition, through his proof affidavit and his stand that he has rendered continuous service for more than 240 days in a calendar year continuously, not only stands very much unrebutted during the course of his cross-examination, but also very much admitted by M.W.1-Junior Assistant from the respondent municipality during the course of his cross-examination who has fairly conceded that the petitioner herein has worked from 1.4.98 except on the holidays till the date of his termination, which is admittedly on 5.10.99. Therefore, it is quite evident from the evidence of M.W.1 examined on the side of the very respondent itself, that the petitioner herein has rendered his services with the respondent municipality as Technical Assistant for more than 240 days continuously in a calendar year. It is also very much there in the evidence of M.W.1 during the course of his cross-examination that the work which the petitioner was doing is still available and in existence and that there was no notice, or notice pay in lieu of notice, or retrenchment compensation paid to the petitioner. .....
37. It is seen that the Labour Court has particularly rendered its finding based on the evidence let-in by the witness examined on behalf of the petitioner municipality.
38. Further, in this regard, it is also useful to extract paragraph 19 of the judgment of the Apex Court in Devinder Singh V. Municipal Council, Sanaur, reported in AIR 2011 SC 2532 (cited supra), wherein, the Apex Court has held that Section 25-F couched in a negative form and it imposed a restriction on the employers right to retrench the workman. Paragraph 19 of the said judgment is also extracted hereunder :
19. Section 25 couched in negative form. It imposes a restriction on the employer's right to retrench workman and lays down that no workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched until he has been given one month notice in writing indicating the reasons for retrenchment and the period of notice has expired or he has been paid wages for the period of notice and he has also been paid, at the time of retrenchment compensation equivalent to fifteen days' average pay for every completed year of continuous service . .. any part thereof in excess of six months and notice in the prescribed manner has been served upon appropriate Government or the authority as may be specified by the appropriate Government notification in the Official Gazette.
39. Furthermore, the workman filed I.A.No.16 of 2001 seeking direction to the petitioner to produce the NMR Register from 01.01.1998 to October 1999 to prove his contention that he has worked for more than 240 days in a year. The same was not produced, though an order was passed by the Labour Court to produce the said document. Hence, the Labour Court took adverse inference against the writ petitioner, in this regard, in paragraph 14 of the impugned award which is extracted hereunder :
14. That apart, it is also cannot be lost sight of the fact that the petitioner herein has also filed an application by way of I.A.No.16/01 seeking direction of this Court to the respondent-municipality to produce the N.M.R. Register for the period ranging from 1.1.98 to the end of October 1999, so as to prove this contention that he has worked continuously for more than 240 days as Technical-Assistant, without any break from 1.4.98 to 4.10.99. Though, the said application was allowed and the respondent-municipality was directed to produce the said vital document, the respondent has not chosen to produce the same. In these staring circumstances, this Court is also constrained to draw 'adverse inference', as against the respondent for non-production of the N.M.R. Register and also to hold that the petitioner herein has rendered his services, of course for more than 240 days in a calendar year, as a Technical Assistant with the respondent-municipality. ......
40. In fact, while the writ petitioner did not produce the details about the number of days of service of the workman rendered from his appointment till his termination before the Labour Court, in paragraph 6 of the affidavit filed in support of this writ petition, it is stated as follows :
Month/Year Period of Days Month/Year Period of Days 4/98 26 1/99 22 5/98 26 2/99 27 6/98 26 3/99 25 7/98 24 4/99 21 8/98 24 5/99 25 9/98 25 6/99 26 10/98 23 7/99 24 11/98 25 8/99 26 12/98 26 9/99 25 10/99 8 FOR THE YEAR 1998 225 DAYS FOR THE YEAR 1999 223 DAYS
41. In view of the plethora of decisions, the writ petition must fail. But, the learned counsel for the writ petitioner has vehemently contended, relying on the decisions referred to in paragraph 12 of this judgment, that the impugned award is liable to the set aside.
42. Let me refer the decisions relied on by the learned counsel for the writ petitioner one by one :
I. Eranalloor Service Co-operative Bank Ltd., V. Labour Court and others, reported in 1986-II-LLJ-492 :
(i). In this case, a learned Single Judge of the Kerala High Court held that if the appointment of the person was not validly made, Section 25-F of the I.D. Act cannot be invoked.
(ii). Hence, it is contended by the learned counsel for the writ petitioner municipality that the appointment of the workman was not made by a competent person and hence, the appointment was an invalid one and thus, as per the judgment of the Kerala High Court, Section 25-F could not be invoked.
(iii). The said contention has to be rejected in view of the Division Bench judgment of this Court in The President, Srirangam Co-operative Urban Bank Limited, Srirangam, Tiruchy V. The Presiding Officer, Labour Court and K.Nagarajan reported in 1996-II-LLJ-216 (Mad), wherein, the Division Bench has considered the judgment of the learned Single Judge of the Kerala High Court in Eranalloor's case (cited supra) and held that the same is opposed to the judgment of the Apex Court in Santosh Gupta V. State Bank of India, reported in 1980-II-LLJ 72 and Punjab Land Development and Reclamation Corporation Ltd. etc. V. Presiding Officer, Labour Court, Chandigarh and Others, reported in 1990-II-LLJ-70.
(iv), In this judgment, viz., 1996-II-LLJ 216, the Division Bench, after discussing the judgment of the learned Single Judge of the Kerala High Court in paragraph 11 of its judgment, has held at the end of paragraph 11 as follows :
11. ....... The learned single Judge has tried to distinguish the decision of the Supreme Court in Santhosh Gupta's case which in our view is not correct, therefore, we find it difficult to agree with the view expressed in Eranalloor Co-operative Society's case (supra) which is quite opposed to the ration of the decisions in Santosh Gupta's case (supra) and Punjab Land Development Bank's case (supra).
(v). Furthermore, it is also relevant to note that a similar argument was advanced in The President, Srirangam Co-operative Urban Bank Limited, Srirangam, Tiruchy V. The Presiding Officer, Labour Court and K.Nagarajan reported in 1996-II-LLJ-216 (Mad), and therefore, the Division Bench framed the following issues in paragraph 2 of its judgment:
2. In the light of the contentions urged on both sides, the following points arise for consideration:
i.Whether the provisions of Section 25-F of the I.D.Act are attracted to the case having regard to the contention that the termination was due to the fact that the Registrar of Co-operative Societies had not approved the appointment as the petitioner was not qualified ii.Whether there was no termination of the services of the petitioner in the eye of law as the very appointment itself was void iii.That the question of termination of service of the petitioner did not arise as the services of the petitioner was not capable of continuation having regard to the fact that the petitioner did not possession the requisite qualification for appointment as clerk.
(vi). After considering the judgment of the Apex Court in Santosh Gupta V. State Bank of India, 1980-II-LLJ 72 and Punjab Land Development and Reclamation Corporation Ltd. Etc. V. Presiding Officer, Labour Court, Chandigarh and Others, 1990-II-LLJ-70, the Division Bench has answered all the third points against the appellant therein and dismissed the writ appeal. The following passage in paragraph 12 of the judgment is extracted hereunder in this regard :
12. Thus for the reasons stated above, all the three points raised for determination are to be answered against the appellant. Consequently, the writ appeal has to be dismissed. ....
(vii). At this juncture, it is useful to refer to paragraph 7 of the said judgment (The President, Srirangam Co-operative Urban Bank Limited, Srirangam, Tiruchy V. The Presiding Officer, Labour Court and K.Nagarajan reported in 1996-II-LLJ-216 (Mad)), wherein, the Division Bench has referred to the Constitution Bench judgment of the Apex Court in Punjab Land Development and Reclamation Corporation Ltd., case (cited supra) and the following passage in paragraph 7 of the said judgment is extracted hereunder in this regard:
7. In Punjab Land Development and Reclamation Corporation Ltd., Etc., V. Presiding Officer, Labour Court, Chandigarh and Others, (1990-II-LLJ-70), the question of termination of the workmen without following Section 2(oo) and Section 25F of the Act was considered. In that case, the services of the workmen were terminated on the ground that the Chairman had no power to appoint them. The Labour Court held that services of the workmen were terminated illegally without payment of retrenchment compensation under the Act and that they were entitled to reinstatement. The Supreme Court held that the termination by the employer of the services of the workmen for any reason whatsoever, other than those expressly excluded by the definition in Section 2(oo) of the Act would attract Section 25F of the Act. ....
(viii). In view of the said judgment of the Division Bench of this Court and also in view of the judgment of the Apex Court in Devinder Singh V. Municipal Council, Sannaur (AIR 2011 SC 2532) relied on by the learned counsel for the first respondent, I am of the view that the judgment of the learned Single Judge of the Kerala High Court in Eranalloor Service Co-operative Bank Ltd. V. Labour Court and Ors (1986-II-LLJ-492) is contrary and opposed to the law laid down by the Apex Court in Santosh Gupta's case (cited supra) and Punjab Land Development Bank's case (cited supra) and hence, reliance placed on the said judgment by the learned counsel for the petitioner is of no use.
II. Judgment of the Division Bench of this Court in English Electric Company of India Ltd., V., Industrial Tribunal, Madras and another [1990 (1) LLJ 344]:
In this case, the Industrial Tribunal held that temporary workmen, who rendered more than 240 days of service, are entitled to protection under Section 25-F of the Act and termination of such workmen invalid and ordered reinstatement with backwages. The same was upheld by a learned Single Judge of this Court. But the Division Bench reversed the judgment of the Single Judge. However, the Apex Court has restored the judgment of the Industrial Tribunal in the judgment in Workmen of English Electric Co. of India Ltd., V. Presiding Officer and Another, reported in 1990-I-LLN 124. Hence, reliance placed by the learned counsel for the writ petitioner on the said judgment is also of no use.
III. Judgment of the Division Bench of this Court in L.Justine and Another V. The Registrar of Co-operative Societies, Chennai, (W.A.No.2501 of 2001 dated 24.10.2012) :
(i). This judgment does not deal with the effect of Section 2(oo) and Section 25-F of the I.D. Act and the case relates to regularization of the employees of co-operative societies.
(ii). The Division Bench held that the employees, who were appointed contrary to rules, could not seek regularization based on G.O.Ms.No.86, Co-operation, Food and Consumer Protection Department, dated 12.03.2001, if the workmen were appointed after 12.03.2001.
(iii). In the case on hand, the workman is not seeking regularization of his service. The Labour Court was concerned with the effect of termination of workman in violation of Section 25-F of the I.D. Act.
(iv). Hence, that judgment could not be of any use to the writ petitioner.
(v). In fact, the judgment of the Division Bench of this Court in The President, Srirangam Co-operative Urban Bank Limited, Srirangam, Tiruchy V. The Presiding Officer, Labour Court and K.Nagarajan reported in 1996-II-LLJ-216 (Mad), has made it clear that even if there is invalid appointment Section 25-F shall be complied with.
43. At this juncture, it is also relevant to take note of the judgment of the Apex Court in Vikramaditya Pandey V. Industrial Tribunal, Lucknow, reported in (2001) 2 SCC 423.
(i). In this case, the Industrial Tribunal refused to order reinstatement on the ground that the appointment of the workman was not made by the U.P. Co-operative Institutional Service Board as per the U.P. Co-operative Societies Employees' Service Regulations, 1975.
(ii). The High Court also confirmed the said view.
(iii). The Apex Court directed reinstatement with 50% backwages on the ground that the order of termination dates back to 16 years, and thereby restricted the backwages to the extent of 50%.
(iv). The Apex Court held that once it is a case of retrenchment and Section 6-N of the U.P. Industrial Disputes Act, which is pari materia with Section 25-F of the I.D. Act was not complied with, the termination is void and the workman is entitled to reinstatement with backwages. The regulations relied on by the Tribunal was held to be inoperative.
44(i). Furthermore, I am of the view that if Section 25-J of the I.D. Act is read along with Section 25-F of the I.D. Act, it is made clear that the provision of Section 25-F of the I.D. Act shall be complied with, even if there is inconsistency with any other law. Section 25-J of the I.D. Act is extracted hereunder :
25J. Effect of laws inconsistent with this Chapter.-(1) The provisions of this Chapter shall have effect notwithstanding anything inconsistent therewith contained in any other law including standing orders made under the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946 )]:
Provided that where under the provisions of any other Act or rules, orders or notifications issued thereunder or under any standing orders or under any award, contract of service or otherwise, a workman is entitled to benefits in respect of any matter which are more favourable to him than those to which he would be entitled under this Act, the workman shall continue to be entitled to the more favourable benefits in respect of that matter, notwithstanding that he receives benefits in respect of other matters under this Act.
(2) For the removal of doubts, it is hereby declared that nothing contained in this Chapter shall be deemed to affect the provisions of any other law for the time being in force in any State in so far as that law provides for the settlement of industrial disputes, but the rights and liabilities of employers and workmen in so far as they relate to lay- off and retrenchment shall be determined in accordance with the provisions of this Chapter. 44(ii). It is also relevant to refer to a decision of the Apex Court in Krishna Dist. Co-operative Marketing Society Ltd., Vijayawada V. N.V.Pumachandra Rao, reported in AIR 1987 SC 1960, wherein, the Apex Court considered Section 25-J of the I.D. Act and held that even if there is inconsistency with any other law, Section 25-F of the I.D.A ct shall be complied with.
45. Further, more importantly, it is also relevant to take note of the fact that even the witness of the writ petitioner examined before the Labour Court made an admission that the work which, the first respondent was doing, is still available and in existence. Therefore, it was not the case that due to the non-availability of the work or closure of work procedure, service of the first respondent was terminated. On the other hand, the work was very much available, but he was terminated.
46. As rightly pointed out by the learned counsel for the workman, apart from the aforesaid judgments, referred to above, in a latest judgment in Devinder Singh V. Municipal Council, Sanaur, reported in AIR 2011 SC 2532, the Apex Court cataloged the judgments and has elaborately held that the provisions contained under Section 25-F (a) and (b) are mandatory. It is relevant to extract paragraph 20 of the said judgment :
20. This Court has repeatedly held that the provisions contained in Section 25F (a) and (b) are mandatory and termination of the service of a workman, which amounts to retrenchment within the meaning of Section 2(oo) without giving one month's notice or pay in lieu thereof and retrenchment compensation is null and void/illegal/inoperative -- State of Bombay V. Hospital Mazdoor Sabha, AIR 1960 SC 610, Bombay Union of Journalists V. State of Bombay, AIR 1964 SC 1617, State Bank of India V. N.Sundara Money, (supra), Santosh Gupta V. State Bank of Patiala, (1980) 3 SCC 340, Mohan Lal V. Bharat Electronics Ltd., (1981) 3 SCC 225, L.Robert D'Souza V. Southern Railway (supra), Surendra Kumar Verma V. Central Government Industrial Tribunal-cum-Labour Court, (1980) 4 SCC 443, Gammon India Ltd. v. Niranjan Dass (1984) 1 SCC 509, Gurmail Singh V. State of Punjab, (1991) 1 SCC 189 and Pramod Jha v. State of Bihar (2003) 4 SCC 619.
47. For all the aforesaid reasons, the writ petition fail and the same is dismissed.
17.12.2014
Index : Yes / No
Internet : Yes
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Note : Issue order copy on
To
The Presiding Officer,
II Additional Labour Court,
Chennai.
D.HARIPARANTHAMAN, J.
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W.P.No.11949 of 2006
17.12.2014