Himachal Pradesh High Court
State Of H.P. And Another vs Smt. Vishambri Devi on 30 August, 2017
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No.: 2082 of 2011
Date of Decision: 30.08.2017
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______________________________________________________________________
State of H.P. and another ....Petitioners.
Vs.
Smt. Vishambri Devi .....Respondent.
Coram:
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge
Whether approved for reporting?1Yes.
For the petitioner: Mr. Vikram Thakur and Ms. Parul Negi,
Deputy Advocate Generals.
For the respondent: Ex parte.
Ajay Mohan Goel, Judge (Oral):
By way of this writ petition, the State has challenged the award passed by the learned Labour Court in Ref. No. 4 of 2008, dated 07.08.2010, vide which, while answering the Reference, learned Labour Court granted the following relief to the claimant/workman:
"As a sequel to my findings on the aforesaid issues, the claim of the petitioner is allowed and it is ordered that she (petitioner) be reinstated in service with seniority and continuity but without back wages. Consequently, the reference stands answered in favour of the petitioner and against the respondent. Let a copy of this award be sent to the appropriate Government for publication in Whether the reporters of the local papers may be allowed to see the Judgment?::: Downloaded on - 01/09/2017 23:26:13 :::HCHP 2
official gazette. File, after completion be consigned to records."
2. I have heard the learned Deputy Advocate General and .
also gone through the records as well as the award passed by the learned Labour Court.
3. It is not in dispute that the respondent-claimant (hereinafter referred to as "the claimant") was initially engaged as a Beldar in January, 1999 in Kandi Project and thereafter, her services were terminated w.e.f. 30.09.2005, on the pretext that the Project in which she was engaged, stood closed.
4. Feeling aggrieved by the said termination of her services on the closer of the Project in issue, the claimant had sought recourse to the provisions of the Industrial Disputes Act, 1947, which resulted in the following reference being made by the appropriate Government to the learned Labour Court for adjudication:
"Whether the termination of services of Smt. Vishmbari Devi, W/o Shri Ram Nath w.e.f.
30.9.2005 by the employer, without complying with the provisions of Industrial Disputes Act, 1947 is legal and justified? If not, what relief of service benefits, back wages and amount of compensation the aggrieved workman is entitled to."
5. Learned Labour Court while answering the reference, held that while terminating the services of the claimant w.e.f. 30.09.2005 ::: Downloaded on - 01/09/2017 23:26:13 :::HCHP 3 on the pretext that the Project in which the claimant was engaged stood closed, State had not complied with the statutory provisions of the Industrial Disputes Act, 1947 in general and Section 25 in particular.
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Learned Labour Court also held that no evidence had been adduced on record by the State from which it could be inferred that at the time when the claimant was initially engaged, she was made aware of the fact that her appointment was Project specific and was liable to be terminated with the closer of the Project. While arriving at the conclusion that the closer of a Project did not absolve the employer from statutory provisions of Section 25 of the Industrial Disputes Act, learned Labour Court relied upon the judgment of the Hon'ble Supreme Court in S.M. Nilajkar and others Vs. Telecom District Manager, Karnataka, (2003) 4 Supreme Court Cases 27. Learned Labour Court also held that there was no evidence on record from which it could be inferred that after the termination of her services, the claimant remained gainfully employed.
On these bases, learned Labour Court while answering the reference, granted the relief of reinstatement in service with seniority and continuity in favour of the claimant, though no back wages were awarded in her favour.
6. In my considered view, the findings so returned by the learned Labour Court do not call for any interference. This is for the reason that it stands established from the record that at the time when the claimant was initially engaged in the year 1999, she was not informed ::: Downloaded on - 01/09/2017 23:26:13 :::HCHP 4 that her engagement was project specific and was liable to be terminated in case of closer of the Project. Besides this, a perusal of the record in general and the statement of the claimant in particular demonstrates that .
after the closer of the Kandi Project, the respondent-State had offered her employment in H.P. Mid Himalyan Water Shed Development, Project, which project as per the State, was the successor Project of Kandi Project, however, the claimant did not accept the said engagement as probably this engagement was offered by the State to her as a fresh engagement and the claimant was asking for seniority also. A perusal of the judgment passed by the Hon'ble Supreme Court which has been relied upon by the learned trial Court demonstrates that it is settled law that even in the case of engagement of a workman in a Project, at the time of termination of the services of such workman, the provisions of the Industrial Disputes Act have to be religiously adheared to. Admittedly, this has not been done in the present case.
7. In S.M. Nilajkar and others Vs. Telecom District Manager, Karnataka, the Hon'ble Supreme Court has held as under:
"11. It is common knowledge that the Government as a welfare State floats several schemes and projects generating employment opportunities, though they are short-lived. The objective is to meet the need of the moment. The benefit of such schemes and projects is that for the duration they exist, they provide employment and livelihood to such persons as ::: Downloaded on - 01/09/2017 23:26:13 :::HCHP 5 would not have been able to secure the same but for such schemes or projects. If the workmen employed for fulfilling the need of such passing-
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phase-projects or schemes were to become a liability on the employer-State by too liberally interpreting the labour laws in favour of the workmen, then the same may well act as a disincentive to the State for floating such schemes and the State may opt to keep away from initiating such schemes and projects even in times of dire need, because it may feel that by opening the gates of welfare it would be letting-in onerous obligations entailed upon it by extended application of the labour laws. Sub-
clause (bb) in the definition of retrenchment was introduced to take care of such like-situations byIndustrial Disputes (Amendment) Act, 1984 with effect from 18.8.1984.
12. 'Retrenchment' in its ordinary connotation is discharge of labour as surplus though the business or work itself is continued.
It is well-settled by a catena of decisions that labour laws being beneficial pieces of legislation are to be interpreted in favour of the beneficiaries in case of doubt or where it is possible to take two views of a provision. It is also well-settled that the Parliament has employed the expression "the termination by the employer of the service of a workman for any reason whatsoever" while defining the term ::: Downloaded on - 01/09/2017 23:26:13 :::HCHP 6 "retrenchment", which is suggestive of the legislative intent to assign the term 'retrenchment' a meaning wider than what it is .
understood to have in common parlance. There are four exceptions carved out of the artificially extended meaning of the term 'retrenchment', and therefore, termination of service of a workman so long as it is attributable to the act of the employer would fall within the meaning of 'retrenchment' de hors the reason for termination. To be excepted from within the meaning of 'retrenchment' the termination of service must fall within one of the four excepted categories. A termination of service which does not fall within the categories (a), (b), (bb) and (c) would fall within the meaning of 'retrenchment'.
13. 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:-
(i) that the workman was employed in a project or scheme of temporary duration;(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(iii) the employment came to an end simultaneously with the termination of the scheme or project and consistently with the terms of the ::: Downloaded on - 01/09/2017 23:26:13 :::HCHP 7 contract.(iv) the workman ought to have been apprised or made aware of the abovesaid terms by the employer at the commencement of .
employment.
14. The engagement of a workman as a daily-wager does not by itself amount to putting the workman on notice that he was being engaged in a scheme or project which was to last only for a particular length of time or upto to occurrence of some event, and therefore, the workman ought to know that his employment was short-lived. The contract of employment consciously entered into by the workman with the employer would result in a notice to the workman on the date of the commencement of the employment itself that his employment was short-lived and as per the terms of the contract the same was liable to termination on the expiry of the contract and the scheme or project coming to an end. The workman may not therefore complaint that by the act of employer his employment was coming to an abrupt termination. To exclude the termination of a scheme or project employee from the definition of retrenchment it is for the employer to prove the abovesaid ingredients so as to attract the applicability of Sub-clause (bb) abovesaid. In the case at hand, the respondent-employer has failed in alleging and proving the ingredients of Sub-clause (bb), as stated hereinabove. All that ::: Downloaded on - 01/09/2017 23:26:13 :::HCHP 8 has been proved is that the appellants were engaged as casual workers or daily-wagers in a project. For want of proof attracting applicability .
of Sub-clause (bb), it has to be held that the termination of the services of the appellants amounted to retrenchment."
8. In this case, the services of the workman were terminated without following the statutory procedure prescribed in the Industrial Disputes Act. It is not the case of the State that as on the date of the termination of the services of the claimant, she had not completed more than 240 days of service in the preceding 12 months thereof. It is relevant to refer at this stage that the finding returned by the learned Labour Court to the effect that after termination of the services of the claimant, there is nothing on record to suggest that she was gainfully employed, is duly borne out from the records of the case and the said finding is not a perverse finding.
9. Though at the time of arguments, learned Deputy Advocate General had impressed upon this Court that the learned Labour Court erred in not appreciating that the reference petition, which was so adjudicated by it, was not maintainable before it, as the Project in which the claimant was deployed, was not an Industry within the definition Industry as provided under the Industrial Disputes Act, however, in my considered view, this contention of the learned Deputy Advocate General is totally misconceived. As per the learned Deputy Advocate General, the ::: Downloaded on - 01/09/2017 23:26:13 :::HCHP 9 Project in which the claimant was engaged was not declared as an Industry under the Industrial Disputes Act under Section 2(ee) of the Industrial Disputes Act. A perusal of Section 2(ee) of the Industrial .
Disputes Act demonstrates that the said Section defines a "controlled industry". As per the said statutory provision, an industry, the control of which by the Union has been declared by any Central Act to be expedient in the public interest, is a controlled industry. In other words, an industry which fulfills the criteria provided in Section 2(ee) can be declared as a controlled industry. In my considered view, this definition, as contained in Section 2(ee) of the Industrial Disputes Act, has got nothing to do with the dispute in issue. The contention of the learned Deputy Advocate General that until an industry is declared as a controlled industry, as defined in Section 2(ee) of the Industrial Disputes Act, the learned Labour Court can not adjudicate upon any reference so made before it, is totally misconceived. Declaration of an industry as controlled industry in Section 2(ee) of the Industrial Disputes Act, in my considered view, has got nothing to do with the adjudication of claim of a workman by the learned Labour Court.
10. In this view of the matter, as this Court does not finds any infirmity with the award so passed by the learned Labour Court in Ref. No. 4 of 2008, dated 07.08.2010, accordingly while concurring with the findings so returned by the learned Labour Court, this petition is ::: Downloaded on - 01/09/2017 23:26:13 :::HCHP 10 dismissed being devoid of any merit. Miscellaneous applications, if any, also stand disposed of. No order as to costs.
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(Ajay Mohan Goel)
Judge
August 30, 2017
(bhupender)
r to
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