Calcutta High Court
Calcutta Telephones vs Rintu Bagchi on 2 May, 2001
Equivalent citations: [2001(91)FLR829], (2001)IILLJ951CAL
Author: Tarun Chatterjee
Bench: Tarun Chatterjee
ORDER
1. This appeal is preferred against the judgment and order of a learned Judge of this Court passed on August 29, 2000 by which the award passed by the Central Government Industrial Tribunal, Calcutta was affirmed and the reference that was made for decision before the Central Government Industrial Tribunal was decided in favour of the employee- respondent. Feeling aggrieved by this order of the learned Judge, this appeal has been preferred by the General Manager, Calcutta Telephones.
2. The disputes that were referred to the Central Government Industrial Tribunal, Calcutta (hereinafter referred to as the Tribunal) were in the following manner:
"Whether the action of the management of Calcutta Telephones, Department of Tele-Communication, Tejo Mansion, Calcutta-1 in terminating the service of Sri Rintu Bagchi casual labour with effect from July 1, 1987 is justified? If not to what relief he is entitled?"
3. Before we go into the merits of this appeal we must narrate certain salient facts which would be required for disposal of this appeal.
4. The employee-respondent was appointed as a casual labour with effect from February 5, 1987, and was posted under 20B-10B Exchange, Calcutta Telephones. Admittedly he had continuously worked for a period of 278 days and on July 1, 1987, his service was terminated by the Telephone authorities. The Tribunal on consideration of the entire facts which were placed before it came to the conclusion that the employee-respondent was entitled to the benefit of Section 25 of the Industrial Disputes Act, as according to the Tribunal he was retrenched from service by the aforesaid order of termination which was passed on July 1, 1987. This finding of fact which was arrived at by the Tribunal by passing the award was affirmed by the learned trial Judge.
5. Before us Mr. Chatterjee appearing on behalf of Calcutta Telephones submitted that the writ petitioner being appointed as a casual labour could not come within the meaning of 'retrenchment' under Section 2(oo) of the Industrial Disputes Act and also no benefit can be given to him under Section 25F of the Industrial Disputes Act. In support of his contention Mr. Chatterjee relies on a decision of the Supreme Court Mohan Lal v. Management of Bharat Electronics Ltd. and also another decision of the Supreme Court in the case of Himanshu Kumar Vidyarthi v. State of Bihar, . This submission of Mr. Chatterjee was hotly contested by the learned counsel for the respondent.
6. After hearing the learned counsel for the parties and on consideration of the materials on record including the award as well as the judgment of the trial Court we are of the view that there is no substance in the appeal of the Calcutta Telephones. Reasons are as follows:
It is an admitted position that the writ petitioner was in service continuously as a casual labour for 278 days. The only question that is to be decided is whether the employee-respondent will be entitled to the benefit of Section 25F of the Industrial Disputes Act before we take into consideration the provision of Section 25F of the Industrial Disputes Act, it will be necessary for us to take into consideration the definition of retrenchment as made in Section 2(oo) of the Industrial Disputes Act. 'Retrenchment' has been defined in the aforesaid section in the following manner:
"'Retrenchment' means 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 but does not include -
a) voluntary retirement of the workman; or
b) retirement of the workmen on reaching the age of superannuation if the contract of employment between the employer and the workmen concerned contends a stipulation in that behalf; or bb) termination of the service of the workman as a result of non- renewal of the contract of employment between the employer and the 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 continuous ill-health."
Section 25F of the Act reads as follows:
"Conditions precedent to retrenchment of workman-
No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until 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 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 for such authority as may be specified by the appropriate Government by notification in the Official Gazette."
7. According to Mr. Chatterjee, the employee was appointed as a casual labour and, therefore, he cannot be considered to be a retrenched employee of the Calcutta Telephones within the meaning of Section 2(oo) and Section 25F of the Industrial Disputes Act. In view of the settled law now we are unable to accept this submission of Mr. Chatterjee.
8. In the case of Tapan Kumar Jana v. Calcutta Telephones 1981-II-LLJ-382 M.M. DUTT, J. (as his Lordships then was) sitting in a Division Bench held that the definition 'workman' does not provide for exclusion of a casual labour from the category of workman nor does it lay down that only permanent employees will be 'workmen.' In paragraph 25 of that decision, it was, further held that since the employee had worked for about fifteen months till his service was terminated, that is to say, the employee had worked more than 240 days in a year, it must be held that the respondents did not comply with the provisions of Section 25F of the Act. According to Division Bench of this Court the respondents having terminated the service of the employee, such termination amounting to retrenchment without complying with the provisions of Section 25F of the Act, it must be held that the termination of the service of the employee was illegal and accordingly, the employer was liable to reinstate the employee.
9. In the case of State Bank of India v. N. Sundara Money the Supreme Court in paragraph 9 observed as follows at p. 481 of LLJ:
"Without further ado, we reach the conclusion that if the workman swims into the harbour of Section 25F, he cannot be retrenched without payment at the time of retrenchment, compensation computed as prescribed therein read with Section 25-B(2) of the Act."
10. After considering the definition of 'retrenchment' as in Section 2(oo) of the Industrial Disputes Act and Section 25F of the Act, the Supreme Court held in the aforesaid decision that a casual labour would come within the meaning of 'retrenchment' as defined in Section 2(oo) of the Act and, such casual labour would be entitled to the benefit of Section 25F of the Act. In the case M.C.D. v. Parveen Kumar Jain, the Supreme Court has held that even a daily rated workman discharged from service was entitled to the benefit of Section 25F of the Industrial Disputes Act, 1947, and the employer without complying with the provisions of Section 25F of the Act was liable to reinstate such daily rated workman. In a recent decision of the Supreme Court in the case of Scooters India Ltd. v. M. Mohd. Yakub 2000-I-LLJ-7 (SC) it has been held by the Apex Court of our country that the termination of service of an employee who had worked for more than 420 days within 12 calendar months preceding the termination of his service would come within the meaning of 'retrenchment' under Section 2(oo) of the Industrial Disputes Act, 1947. Applying the principles as laid down in the aforementioned decisions, we must hold that although the private respondent was engaged as a casual worker who worked for more than two hundred and forty days, he was entitled to be reinstated in service as in his case the provisions of Section 25F of the aforesaid Act would be applied but the same was not complied with. Therefore, we must hold that When the provisions of Section 25F of the Industrial Disputes Act, 1947 not having been followed by the employer, the termination must be held to be illegal. Accordingly, we do not find any merit in this appeal.
11. However, before parting with this judgment we may deal with the decision cited by Mr. Chatterjee appearing on behalf of the appellant, so far as the decision of the Supreme Court in the case of Himanshu Kumar Vidyarthi v. State of Bihar (supra) do not find that this decision or the principles laid down in the same can have any manner of application to the facts and circumstances of this case. After perusing the aforesaid decision of the Supreme Court, it appears to us that in that case the question before the Supreme Court was whether an employee can be said to have been retrenched within the meaning of Section 25F of the Industrial Disputes Act and in answering to that question the Supreme Court observed in the said Judgment as follows in 1998-II-LLJ-15 at p. 16:-
"Every department of the Government cannot be treated to be 'Industry'. When the appointments are regulated by statutory rules, the concept of 'Industry' to that extent stands excluded. Admittedly they were not appointed to the post in accordance with the rules and were engaged on the basis of need of the work. They are temporary employees working on daily wages. Under those circumstances their disengagement from service cannot be construed to be a retrenchment under the Industrial Disputes Act."
12. From the aforesaid observation of the Supreme Court, it is clear to us that in the said case, the Supreme Court was considering a situation where the employer of the employee was not an "industry" within the meaning of Industrial Disputes Act. In that background of facts, the Supreme Court held that the benefit of Section 25F of the Act cannot be given to the employee as the employer was not coming within the meaning of 'Industry' under the Industrial Disputes Act, 1947. This is not the case here. In our case, admittedly, the writ petitioner had come under the purview of the provisions of Industrial Disputes Act and reference was made under the said Act for decision. That being the position, we have no hesitation in our mind to hold that the principles laid down by the Supreme Court in the aforesaid decision cannot be applied to the facts and circumstances of this case.
13. So far as the other decision of the Supreme Court on which Mr. Chatterjee has placed reliance, in the case of Mohan Lal v. Management of Bharat Electronics Ltd., (supra) is concerned, we are of the view that the said decision also is distinguishable on facts. In that case the employee was appointed by an order on probation for period of six months. Subsequently, the period was extended up to a particular period. Thereafter his service was terminated with effect from a particular date. The Labour Court in the industrial dispute held that service of the employee was terminated during the extended period of probation for his unsatisfactory work. In the said background, it was held by the Supreme Court that the employee was not on probation during the extended period and he was neither a temporary nor permanent employee. Under these circumstances, it was held that Section 25F and Section 2(oo) of the said Act could not be applied in the said case. So far as our case is concerned, admittedly the writ petitioner/respondent worked for more than 240 days and in view of the fact that the employee/respondent was coming within the meaning of 'retrenchment' of a workman under Section 2(oo) of the Act, there is no difficulty in holding that in view of the said termination the employee/ respondent was entitled to the benefit of Section 25F of the Act and since Section 25F of the Act was not complied with by the appellants, the order of termination must be held to be illegal, invalid and without jurisdiction. This decision of the Supreme Court has also been rightly explained by a single Bench of this Court in the case of Northern Coalfields Ltd. v. Smt. Alanta Deb, 2000 (2) Cal HN 590 in which it has been rightly observed by the learned single Judge that the decision in the case of Himanshu Kumar Vidyarthi (supra) would not be applicable as the Apex Court on the facts of that case arrived at a conclusion that the same department of the Government would not be treated to be 'Industry' and as such Section 25 of the said Act could not have any application to the facts of the case.
14. That being the position, we do not find any substance in the argument of Mr. Chatterjee as noted hereinafter.
15. No other point was raised by the learned Counsel for the parties.
16. For the reason, aforesaid, there is no merit in this appeal and the appeal is thus dismissed.
17. There will be no order as to costs.
18. Let xeroxed certified copy of this judgment, if applied for, be given to the learned Advocates for the parties as early as possible.