Gujarat High Court
Gujarat Pollution Control Board ... vs Anilbhai Prabhubhaipatel on 16 September, 2022
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/11884/2020 ORDER DATED: 16/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11884 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 13057 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 11886 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 12967 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 13127 of 2020
==========================================================
GUJARAT POLLUTION CONTROL BOARD THROUGH REGIONAL
OFFICER
Versus
ANILBHAI PRABHUBHAIPATEL
==========================================================
Appearance:
MR DG CHAUHAN(218) for the petitioner(s) No. 1
MR M V PATEL (7602) for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 16/09/2022
ORAL ORDER
1. By way of these petitions, the petitioner - Gujarat Pollution Control Board has challenged the awards of the Labour Court, Valsad whereby the board has been directed to reinstate the respondent workmen with 15% backwages.
2. Special Civil Application No. 11884 of 2020 was argued as the lead matter. Facts in brief indicate that it Page 1 of 38 Downloaded on : Tue Sep 20 20:59:30 IST 2022 C/SCA/11884/2020 ORDER DATED: 16/09/2022 was the case of the workman before the Labour Court, in his Statement Of Claim that he was working as a Peon since 12/2/1997 on a monthly salary of Rs.4160/-. That without any justifiable reason his services were put to an end with effect from 23/1/2009. That the Board had admitted that in proceedings in the High Court that Board was willing to re-engage the workman on an outsourcing basis with the Contractor M/S Presscor Infosys. That itself indicated that the Board had admitted that the services were terminated. It was his case that he was a permanent employee of the Board and therefore termination was in violation of Section 25F of the Industrial Disputes Act,1947.
2.1 The Board had contested the claim of the workman by filing a written statement wherein it was the case of the board that the workman from 1997-2008 was engaged on a temporary basis. That as per the terms of appointment they were paid on a daily basis depending on the number of days that they had worked in a month.
Page 2 of 38 Downloaded on : Tue Sep 20 20:59:30 IST 2022C/SCA/11884/2020 ORDER DATED: 16/09/2022 That the terms of appointment indicated that they were fixed term appointments and the conditions of the appointment order were accepted by the workman. That there was no retrenchment as the appointment were fixed term and therefore the provisions of Section 2(oo)(bb) were applicable.
2.2 That since they were engaged over a long period of time on a fixed term basis, a letter was written to the Secretary of the Forest and Environment Department that they be regularised but the proposal of the Board was rejected. Moreover, some Class IV employees of the Board working at Gandhinagar had approached the Gujarat High Court by filing Special Civil Application No. 15948 of 2008 where it was observed that the workmen be appointed on a contract basis. The Board had therefore engaged such workman at their Vapi Project under the Contractor M/s Presscoat Infosys and the workman here too was informed by a Registered Letter to be engaged through the Contractor and that was not Page 3 of 38 Downloaded on : Tue Sep 20 20:59:30 IST 2022 C/SCA/11884/2020 ORDER DATED: 16/09/2022 accepted. This development cannot be termed as a "retrenchment" within the meaning of Section 25F of the Industrial Disputes Act,1947. That the Board was willing to re-engage the workman through the Contractor they did not accept the Offer and therefore they are not entitled to any relief.
3. Mr.D.G.Chauhan learned Advocate appearing for the board would take the Court through the appointment orders placed on record and submit that the appointment orders indicated that the appointments were time bound for a fixed period. The conditions of the appointment order specifically stated that the appointments were purely temporary and the appointee had no right to be permanent. That the appointment on the end of the tenure of the period would automatically come to an end.
3.1 It was further pointed out by Mr. Chauhan, learned Advocate for the petitioner that the terms and conditions were read and the workman had signed stating that they Page 4 of 38 Downloaded on : Tue Sep 20 20:59:30 IST 2022 C/SCA/11884/2020 ORDER DATED: 16/09/2022 had accepted the conditions of the appointment order.
Once having done that on facts it was clear that the appointments were periodical and therefore governed by the provisions of Section 25F of the Industrial Disputes Act, 1947 and therefore there was no retrenchment as defined under Section 25F of the Industrial Disputes Act,1947.
3.2 Mr. Chauhan would further submit that there was no pleading in the Statement of Claim as to violation of the provisions of Section 25G or 25H or Rule 81 despite which the Labour Court in the findings recorded in the Award came to the conclusion that there was violation of such provisions.
3.3 Mr. Chauhan would further submit that once having offered work through the agency M/s Prescot Infosys and the workman not having accepted that the Labour COurt clearly fell in error in awarding reinstatement. He would submit that in the cross examination of the workman it Page 5 of 38 Downloaded on : Tue Sep 20 20:59:30 IST 2022 C/SCA/11884/2020 ORDER DATED: 16/09/2022 had come out that the Board was willing to reinstate through the Contractor but the workman was not willing to do so. That he was engaged in work and would earn Rs. 1000 to 1200 per month.
3.4 In the affidavit in terms of deposition recorded on behalf of the Board it was clearly stated that the appointment orders were periodical appointments and therefore it was a case of one under Section 2(oo)(bb) of the Act. Reading the Award of the Labour in this background, Mr. Chauhan would submit that the finding of the Labour Court that the workman had worked continuously for 240 days in a year without a break and therefore it was proved that it was a case where Section 25B applied, was bad as the Court itself had recorded that the workman had brought no evidence on record to suggest that they had completed 240 days in each year of service. He would submit that the Labour Court committed an error in observing that since the appointment came to an end as a result of the Board's Page 6 of 38 Downloaded on : Tue Sep 20 20:59:30 IST 2022 C/SCA/11884/2020 ORDER DATED: 16/09/2022 proposal not being accepted, the end of service amounted to retrenchment when it was the specific case of the Board that the appointment was a fixed term appointment.
3.5 Mr. Chauhan would further submit that the Board is willing to offer compensation at the rate of Rs.2 lakhs and the Award be modified accordingly.
3.6 In support of his submissions, he relied upon the following decisions.
a) Assistant Engineer,Rajasthan Development Corporation and Another versus Gitam Singh reported in (2013) 5 SCC 136.
b) Senior Superintendent Telegraph (Traffic),Bhopal versus Santosh Kumar Seal reported in (2010) 6 SCC 773.
c) Deputy Executive Engineer versus Kuberbhai Page 7 of 38 Downloaded on : Tue Sep 20 20:59:30 IST 2022 C/SCA/11884/2020 ORDER DATED: 16/09/2022 Kanjibhai reported in (2019) 4 SCC 307.
d) K.V.Anil Mithra and Another versus Sree Sankaracharya University of Sanskrit and Another reported in 2021 SCC Online 982.
3.7 Mr. Chauhan would therefore summarise the principle of modifying the award of reinstatement with backwages by awarding compensation as aforesaid.
4. Mr. M.V. Patel, learned advocate has appeared on behalf of the workman. He would support the findings arrived at by the Labour Court and submit that the Labour Court committed no error much less an error of law so as to warrant interfering with the findings arrived at by the Labour Court.
4.1 Mr. Patel would submit that over a period of 12 years the workman worked continuously without a break and therefore there was nothing wrong in the Labour Page 8 of 38 Downloaded on : Tue Sep 20 20:59:30 IST 2022 C/SCA/11884/2020 ORDER DATED: 16/09/2022 Court holding that there was compliance of provisions of Section 25B of the Industrial Disputes Act, 1947 and it was rightly held that the workman had completed 240 days in the preceding year of service. Mr. Patel would further submit that the Labour Court had held that continuance of workman on a temporary basis was unfair labour practice in terms of the Industrial Disputes Act,1947.
4.2 Mr. Patel would further submit that this Court in Special Civil Application No. 2155 of 2014 had passed an order on 02/09/2014 in case of Drivers working with the GPCB wherein the Court held that continuance for a long period was unfair labour practice and the Court had directed that the case of such drivers should be considered for regularisation. The only difference was that such drivers had approached the High Court directly whereas the workman had gone before the Labour Court.
4.3 Mr. Patel would also submit that the Labour Court had devoted extensively more than 5 pages to give Page 9 of 38 Downloaded on : Tue Sep 20 20:59:30 IST 2022 C/SCA/11884/2020 ORDER DATED: 16/09/2022 reasons as to why the case of the petitioner of application of the provisions of Section 2(oo)(bb) were not made out and there was no illegality in the findings so arrived at by the Labour Court.
4.4 Mr. Patel, in support of his submissions, would rely upon a decision of the Division Bench of the Punjab and Haryana High Court in the case of Bhikku Ram S/O Lalji vs The Presiding Officer reported in 1996 III LLJ 1226 PH. He would submit that even temporary breaks and the action of continuing the employee for long periods was unfair labour practice in terms of the Fifth Schedule of the Act and the Court would be justified in nullifying the plea of the employer that the termination of the workman does not amount to retrenchment but is covered by clause (bb).
4.5 He would submit that his Court in exercise of powers under Article 226 of the Constitution Of India ought not to interfere with the findings arrived at by the Labour Court as no error or illegality was committed to exercise Page 10 of 38 Downloaded on : Tue Sep 20 20:59:30 IST 2022 C/SCA/11884/2020 ORDER DATED: 16/09/2022 the jurisdiction of this Court.
5. Having considered the submissions made by the learned advocates for the respective parties the following admitted facts on record emerge as under:
a) Appointment orders produced before the Labour Court are on record. The orders indicate that the workmen were appointed on terms which they accepted.
One of the terms was that their appointment was purely temporary and fixed period appointments over a period of time as indicated by each order of appointment.
b) The terms of appointment were accepted by the workman and specifically signed with a positive statement under the orders. The Labour Court was to,in light of the Statement Of Claim where the only case of the workman was that there was violation of Section 25F was to and restrict itself in an inquiry as to whether the provisions of Section 25F were at all violated. There was Page 11 of 38 Downloaded on : Tue Sep 20 20:59:30 IST 2022 C/SCA/11884/2020 ORDER DATED: 16/09/2022 no pleading that they were discontinued from service and there was work and that juniors had been retained in service and therefore there was violation of the provisions of Section 25F of the Industrial Disputes Act, 1947. The finding of the Labour Court to that extent of holding violation of the provisions of Section 25G and 25H and Rule 81 to that extent are beyond the pleadings and are therefore set aside.
c) The submission of Mr. Chauhan that the finding of the Labour Court that the workman had not completed 240 days in service even while holding that they had not produced evidence to support that is a submission that cannot be accepted. Evidence by way of each order from 1997 to 2008 indicate that the workman were continued without any break in service. Even from the deposition of Babubhai Mohanbhai Vasava who on behalf of the employer had deposed had during the course of examination had said that vouchers were on record from Exh.35 to Exh 81 and perusal thereof would indicate that Page 12 of 38 Downloaded on : Tue Sep 20 20:59:30 IST 2022 C/SCA/11884/2020 ORDER DATED: 16/09/2022 the workman had worked for over 240 days preceding the date of their termination. The finding of the Labour Court that in light of the provisions of Section 25B of the Industrial Disputes Act,1947 the workman had completed "continuous service" is a finding which is in accordance with law.
d) The finding of the Labour Court that because the temporary appointments continued for over a long time and therefore there was unfair labour practice is a self-
destructive finding arrived at by the Labour Court. The Labour Court went into an uncharted arena when it was not even the case before it by the workman that they were claiming regularisation based on their long tenure of service. To hold that the appointments were temporary and agree with the employer and thereafter observe that because of the unfair labour practice and therefore violation of Section 25F cannot be accepted because while deciding the issue of retrenchment the concept of unfair labour practice could not have been Page 13 of 38 Downloaded on : Tue Sep 20 20:59:30 IST 2022 C/SCA/11884/2020 ORDER DATED: 16/09/2022 made one of the reasons to award reinstatement with back wages. To that extent the finding of the Labour Court is perverse.
e) The Labour Court has before it as per the terms of reference to decide the validity of discontinuance of the workman from service and whether the same violated the provisions of Section 25F. The observations and findings of the High Court in Special Civil Application No. 2155 of 2014 as canvassed by Mr.Patel would be of no help. That was a case where the Drivers had invoked Article 226 of the Constitution Of India against the Board claiming regularisation on the ground of long service tenure. The parity of findings therein cannot be made a support to justify the Award where the issue was not regularisation as a remedy as a result of unfair labour practice. The only issue before the Labour Court was examining the legality in context of Section 25F of the Industrial Disputes Act, 1947.
f) While upholding therefore that the termination was Page 14 of 38 Downloaded on : Tue Sep 20 20:59:30 IST 2022 C/SCA/11884/2020 ORDER DATED: 16/09/2022 in violation of the provisions of Section 25F of the Act looking to their continuous service for over a period of 10 years the question is whether the Award of reinstatement with 15% backwages can be maintained. In light of the orders of appointment what is evident was that the appointments were fixed term appointments purely temporary in nature. The conditions of the appointment order specifically stated that. The workman had accepted their appointments as fixed period and confirmed it by their signature under a positive statement that they accepted these temporary appointments. On a request or a proposal made to the State Government, in the year 2008 that proposal was not accepted and therefore as a consensus in Special Civil Application No. 15984/2008 the services were offered to be continued through the contractor M/s Presscoat Infosys. The company offered to take them but they refused to join.
5.1 All these parameters would therefore is the reason that the Court has to consider moulding of the relief Page 15 of 38 Downloaded on : Tue Sep 20 20:59:30 IST 2022 C/SCA/11884/2020 ORDER DATED: 16/09/2022 rather than Award reinstatement and modify the same by awarding suitable compensation.
6. In the decision of the Supreme Court in the case of Santosh Kumar Seal (supra),the Supreme Court in para 9 has observed as under:
"9. In last few years it has been consistently held by this Court that relief by way of reinstatement with back wages is not automatic even if termination of an employee is found to be illegal or is in contravention of the prescribed procedure and that monetary compensation in lieu of reinstatement and back wages in cases of such nature may be appropriate."
6.1 In the case of Gitam Singh (supra) the Supreme Court has considered the entire law and held as under:
"22. From the long line of cases indicated above, it can be said without any fear of contradiction that this Court has not held as an absolute proposition that in cases of wrongful dismissal, the dismissed employee is entitled to reinstatement in all situations. It has always been the view of this Court that there could be circumstance(s) in a case which may make it inexpedient to order reinstatement. Therefore, the normal rule that dismissed employee is Page 16 of 38 Downloaded on : Tue Sep 20 20:59:30 IST 2022 C/SCA/11884/2020 ORDER DATED: 16/09/2022 entitled to reinstatement in cases of wrongful dismissal has been held to be not without exception. Insofar as wrongful termination of daily-rated workers is concerned, this Court has laid down that consequential relief would depend on host of factors, namely, manner and method of appointment, nature of employment and length of service. Where the length of engagement as daily wager has not been long, award of reinstatement should not follow and rather compensation should be directed to be paid. A distinction has been drawn between a daily wager and an employee holding the regular post for the purposes of consequential relief.
27. In our view, Harjinder Singh (supra) and Devinder Singh (supra) do not lay down the proposition that in all cases of wrongful termination, reinstatement must follow. This Court found in those cases that judicial discretion exercised by the Labour Court was disturbed by the High Court on wrong assumption that the initial employment of the employee was illegal. As noted above, with regard to the wrongful termination of a daily wager, who had worked for a short period, this Court in long line of cases has held that the award of reinstatement cannot be said to be proper relief and rather award of compensation in such cases would be in consonance with the demand of justice. Before exercising its judicial discretion, the Labour Court has to keep in view all relevant factors, including the mode and manner of appointment, nature of employment, length of service, the ground on which the termination has been set aside and the delay in raising the industrial dispute before grant of relief in an industrial dispute."Page 17 of 38 Downloaded on : Tue Sep 20 20:59:30 IST 2022
C/SCA/11884/2020 ORDER DATED: 16/09/2022 6.2 In the case of Anil Mithra (supra), paras 22 to 42 read as under:
"22. The term 'retrenchment' leaves no manner of doubt that the termination of the workman for any reason whatsoever, otherwise than as punishment inflicted by way of disciplinary action are being termed as retrenchment with certain exceptions and it is not dependent upon the nature of employment and the procedure pursuant to which the workman has entered into service. In continuation thereof, the condition precedent for retrenchment has been defined under Section 25F of the Act 1947 which postulates that workman employed in any industry who has been in continuous service for not less than one year can be retrenched by the employer after clauses (a) and (b) of Section 25F have been complied with and both the clauses (a) and (b) of Section 25F have been held by this Court to be mandatory and its non-observance is held to be void ab initio bad and what is being the continuous service has been defined under Section 25B of the Act 1947. It may be relevant to quote Section 25Band clause (a) and
(b) of Section 25F of the Act 1947 which are reproduced as under:-
25B. Definition of continuous service.- For the purposes of this Chapter (1) a workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service, including Page 18 of 38 Downloaded on : Tue Sep 20 20:59:30 IST 2022 C/SCA/11884/2020 ORDER DATED: 16/09/2022 service which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lock-out or a cessation of work which is not due to any fault on the part of the workman;
(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) one hundred and ninety days in the case of a workman employed below ground in a mine; and (ii) two hundred and forty days, in any other case;
(b) for a period of six months, if the workman, during a period of six 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) ninety-five days, in the case of a workman employed below ground in a mine; and (ii) one hundred and twenty days, in any other case. Explanation.--For Page 19 of 38 Downloaded on : Tue Sep 20 20:59:30 IST 2022 C/SCA/11884/2020 ORDER DATED: 16/09/2022 the purposes of clause (2), the number of days on which a workman has actually worked under an employer shall include the days on which-- (i) he has been laid-off under an agreement or as permitted by standing orders made under the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946), or under this Act or under any other law applicable to the industrial establishment; (ii) he has been on leave with full wages, earned in the previous years; (iii) he has been absent due to temporary disablement caused by accident arising out of and in the course of his employment; and
(iv) in the case of a female, she has been on maternity leave; so, however, that the total period of such maternity leave does not exceed twelve weeks.] 25F. Conditions precedent to retrenchment of workmen.-
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--
(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 Page 20 of 38 Downloaded on : Tue Sep 20 20:59:30 IST 2022 C/SCA/11884/2020 ORDER DATED: 16/09/2022 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].
23. The scheme of the Act 1947 contemplates that the workman employed even as a daily wager or in any capacity, if has worked for more than 240 days in the preceding 12 months from the alleged date of termination and if the employer wants to terminate the services of such a workman, his services could be terminated after due compliance of the twin clauses (a) and (b) of Section 25F of the Act 1947 and to its non-observance held the termination to be void ab initio bad and so far as the consequential effect of non-observance of the provisions of Section 25F of the Act 1947, may lead to grant of relief of reinstatement with full back wages and continuity of service in favour of retrenched workman, the same would not mean that the relief would be granted automatically but the workman is entitled for appropriate relief for non-observance of the mandatory requirement of Section 25F of the Act, 1947 in the facts and circumstances of each case.
24. The salient fact which has to be considered is whether the employee who has been retrenched is a workman under Section 2(s) and is employed in an industry defined under Section 2(j) and who has been in Page 21 of 38 Downloaded on : Tue Sep 20 20:59:30 IST 2022 C/SCA/11884/2020 ORDER DATED: 16/09/2022 continuous service for more than one year can be retrenched provided the employer complies with the twin conditions provided under clauses
(a) and (b) of Section 25F of the Act 1947 before the retrenchment is given effect to. The nature of employment and the manner in which the workman has been employed is not significant for consideration while invoking the mandatory compliance of Section 25F of the Act 1947.
25. This can be noticed from the term 'retrenchment' as defined under Section 2(oo) which in unequivocal terms clearly postulates that termination of the service of a workman for any reason whatsoever provided it does not fall in any of the exception clause of Section 2(oo), every termination is a retrenchment and the employer is under an obligation to comply with the twin conditions of Section 25F of the Act 1947 before the retrenchment is given effect to obviously in reference to such termination where the workman has served for more than 240 days in the preceding 12 months from the alleged date of termination given effect to as defined under Section 25B of the Act.
26. This Court in State Bank of India(supra) while examining the retrenchment of various nature of employments questioning the interpretation of Section 2(oo) of the Act held as under:-
8. Without further ado, we reach the conclusion that if the workman swims into the harbour of Section 25-F, he cannot be Page 22 of 38 Downloaded on : Tue Sep 20 20:59:30 IST 2022 C/SCA/11884/2020 ORDER DATED: 16/09/2022 retrenched without payment, at the time of retrenchment, compensation computed as prescribed therein read with Section 25-B(2). But, argues the appellant, all these obligations flow only out of retrenchment, not termination outside that species -of snapping employment. What, then, is retrenchment? The key to this vexed question is to be found in Section 2(oo) which reads thus:
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, but 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
(c) termination of the service of a workman on the ground of continued ill-health;"
For any reason whatsoever -- very wide and almost admitting of no exception. Still, the employer urges that when the order of appointment carries an automatic cessation of service, the period of Page 23 of 38 Downloaded on : Tue Sep 20 20:59:30 IST 2022 C/SCA/11884/2020 ORDER DATED: 16/09/2022 employment works itself out by efflux of time, not by act of employer. Such cases are outside the concept of "retrenchment" and cannot entail the burdensome conditions of Section 25-F. Of course, that a one year and ten months "nine-days"
employment, hedged is with an express condition of temporariness and automatic cessation, may look like being in a different street (if we may use a colloquialism) from telling a man off by retrenching him. To retrench is to cut down. You cannot retrench without trenching or cutting. But dictionaries are not dictators of statutory construction where the benignant mood of a law and, more emphatically, the definition clause furnish a different denotation. Section 2(oo) is the master of the situation and the Court cannot truncate its amplitude.
9. A breakdown of Section 2(oo) unmistakably expands the semantics of retrenchment. 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 Page 24 of 38 Downloaded on : Tue Sep 20 20:59:30 IST 2022 C/SCA/11884/2020 ORDER DATED: 16/09/2022 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". In the present case the employment ceased, concluded, ended on the expiration of one year ten months nine days -- automatically may be, but cessation all the same. That to write into the order of appointment the date of termination confers no moksha from Section 25-F(b) is inferable from the proviso to Section 25-F(1) [sic 25-F (a)]. True, the section speaks of retrenchment by the employer and it is urged that some act of volition by the employer to bring about the termination is essential to attract Section 25- F and automatic extinguishment of service by effluxion of time cannot be sufficient. An English case R. v. Secretary of State was relied on, where Lord Denning, M.R. observed:
"I think that the word 'terminate' or 'termination' is by itself ambiguous. It can refer to either of two things -- either to termination by notice or to termination by effluxion of time. It is often used in that dual sense in landlord and tenant and in master and servant cases.
But there are several indications in this para to show that it refers here only to termination by notice." Buckley, L.J. concurred and said:Page 25 of 38 Downloaded on : Tue Sep 20 20:59:30 IST 2022
C/SCA/11884/2020 ORDER DATED: 16/09/2022 "In my judgment the words are not capable of bearing that meaning. As Counsel for the Secretary of State has pointed out, the verb 'terminate' can be used either transitively or intransitively. A contract may be said to terminate when it comes to an end by effluxion of time, or it may be said to be terminated when it is determined at notice or otherwise by some act of one of the parties. Here in my judgment the word 'terminated' is used in this passage in para 190 in the transitive sense, and it postulates some act by somebody which is to bring the appointment to an end, and is not applicable to a case in which the appointment comes to an end merely by effluxion of time."
Words of multiple import have to be winnowed judicially to suit the social philosophy of the statute. So screened, we hold that the transitive and intransitive senses are covered in the current context. Moreover, an employer terminates employment not merely by passing an order as the service runs. He can do so by writing a composite order, one giving employment and the other ending or limiting it. A separate, subsequent determination is not the sole magnetic pull of the provision. A pre- emptive provision to terminate is struck by the same vice as the post-appointment termination. Dexterity of diction cannot defeat the articulated conscience of the provision.
Page 26 of 38 Downloaded on : Tue Sep 20 20:59:30 IST 2022C/SCA/11884/2020 ORDER DATED: 16/09/2022
27. It was later followed in L. Robert D'Souza(supra) and held as under:-
25. Assuming we are not right in holding that the appellant had acquired the status of a temporary railway servant and that he continued to belong to the category of casual labour, would the termination of service in the circumstances mentioned by the Railway Administration constitute retrenchment under the Act?
26. Section 25-F of the Act provides 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 by that employer until the conditions set out in the Act are satisfied.
The expression "workman" is defined as under:
"2. In this Act, unless there is anything repugnant in the subject or context,--
(s) "workman" means any person (including an apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be expressed 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, Page 27 of 38 Downloaded on : Tue Sep 20 20:59:30 IST 2022 C/SCA/11884/2020 ORDER DATED: 16/09/2022 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--
(i) who is subject to the Army Act, 1950, or the Air Force Act, 1950, or the Navy (Discipline) Act, 1934; or
(ii) who is employed in the police service or as an officer or other employee of a prison; or
(iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who, being employed in a supervisory capacity, draws wages exceeding five hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature."
27. There is no dispute that the appellant would be a workman within the meaning of the expression in Section 2 (s) of the Act. Further, it is incontrovertible that he has rendered continuous service for a period over 20 years. Therefore, the first condition of Section 25- Fthat appellant is a workman who has rendered service for not less than one year under the Page 28 of 38 Downloaded on : Tue Sep 20 20:59:30 IST 2022 C/SCA/11884/2020 ORDER DATED: 16/09/2022 Railway Administration, an employer carrying on an industry, and that his service is terminated which for the reasons hereinbefore given would constitute retrenchment. It is immaterial that he is a daily-rated worker. He is either doing manual or technical work and his salary was less than Rs 500 and the termination of his service does not fall in any of the excepted categories. Therefore, assuming that he was a daily-rated worker, once he has rendered continuous uninterrupted service for a period of one year or more, within the meaning of Section 25-F of the Act and his service is terminated for any reason whatsoever and the case does not fall in any of the excepted categories, notwithstanding the fact that Rule 2505 would be attracted, it would have to be read subject to the provisions of the Act. Accordingly the termination of service in this case would constitute retrenchment and for not complying with pro-conditions to valid retrenchment, the order of termination would be illegal and invalid.
28. Later, in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh(supra), the Constitution Bench of this Court examined the scope of the term 'Retrenchment" under Section 2(oo)of the Act in affirmative in paragraphs 14 and 82. The relevant paras are as under:-
14. The precise question to be decided, therefore, is whether on a proper construction of the definition of "retrenchment" in Section 2(oo) of the Act, Page 29 of 38 Downloaded on : Tue Sep 20 20:59:30 IST 2022 C/SCA/11884/2020 ORDER DATED: 16/09/2022 it means termination by the employer of the service of a workman as surplus labour for any reason whatsoever, or it 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, and those expressly excluded by the definition. In other words, the question to be decided is whether the word "retrenchment" in the definition has to be understood in its narrow, natural and contextual meaning or in its wider literal meaning.
82. Applying the above reasonings, principles and precedents, to the definition in Section 2(oo) of the Act, we hold that "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever except those expressly excluded in the section.
29. It leaves no manner of doubt that the nature of every termination of a kind, by the service of a workman, for any reason whatsoever, which the Legislature in its wisdom made a clarification in its intention to be known to the employer that such of the workman whose services, if to be terminated, will amount to retrenchment under Section 2(oo) of the Act except those expressly excluded in the section.
30. It is not open for us to examine the nature of employment offered to the workman and the manner he had served the employer is beyond the terms of reference made by the appropriate Page 30 of 38 Downloaded on : Tue Sep 20 20:59:30 IST 2022 C/SCA/11884/2020 ORDER DATED: 16/09/2022 Government dated 8th April, 2003 and the fact is that if the service of the workman has been terminated, it will be termed to be a retrenchment under Section 2(oo) of the Act provided it does not fall under any of those expressly excluded under the section. In every retrenchment, the employer is not under an obligation to comply with the twin conditions referred to under clauses (a) and (b) of Section 25F of the Act but in a case where the workman has been in continuous service for more than 240 days in the preceding 12 months before the alleged date of termination as contemplated under Section 25B, the employer is under an obligation to comply with the twin conditions referred to under clauses (a) and (b) of Section 25F of the Act 1947.
31. The consistent view of this Court is that such non-observance has been termed to be void ab initio bad and consequence in the ordinary course has to follow by reinstatement with consequential benefits but it is not held to be automatic and what alternative relief the workman is entitled for on account of non- observance of mandatory requirement of Section 25F of the Act 1947 is open to be considered by the Tribunal/Courts in the facts and circumstances of each case.
32. What appropriate relief the workman may be entitled for regarding non-compliance of Section 25Fof the Act 1947 has been considered by this Court in Bharat Sanchar Nigam Limited Vs. Bhurumal9. The relevant paras are as under:-
Page 31 of 38 Downloaded on : Tue Sep 20 20:59:30 IST 2022C/SCA/11884/2020 ORDER DATED: 16/09/2022
33. It is clear from the reading of the aforesaid judgments that the ordinary principle of grant of reinstatement with full back wages, when the termination is found to be illegal is not applied mechanically in all cases. While that may be a position where services of a regular/permanent workman are terminated illegally and/or mala fide and/or by way of victimisation, unfair labour practice, etc. However, when it comes to the case of termination of a daily- wage worker and where the termination is found illegal because of a procedural defect, namely, in violation of Section 25- F of the Industrial Disputes Act, this Court is consistent in taking the view that in such cases reinstatement with back wages is not automatic and instead the workman should be given monetary compensation which will meet the ends of justice.
Rationale for shifting in this direction is obvious.
34. The reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination is found to be illegal because of non-payment of retrenchment compensation and notice pay as mandatorily required under Section 25-F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the services of that employee by paying him the retrenchment compensation. Since such a Page 32 of 38 Downloaded on : Tue Sep 20 20:59:30 IST 2022 C/SCA/11884/2020 ORDER DATED: 16/09/2022 workman was working on daily-wage basis and even after he is reinstated, he has no right to seek regularisation [see State of Karnataka v. Umadevi (3) [(2006) 4 SCC 1]. Thus when he cannot claim regularisation and he has no right to continue even as a daily- wage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose.
35. We would, however, like to add a caveat here. There may be cases where termination of a daily-wage worker is found to be illegal on the ground that it was resorted to as unfair labour practice or in violation of the principle of last come first go viz. while retrenching 2014(7) SCC 177 such a worker daily wage juniors to him were retained. There may also be a situation that persons junior to him were regularised under some policy but the workman concerned terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of Page 33 of 38 Downloaded on : Tue Sep 20 20:59:30 IST 2022 C/SCA/11884/2020 ORDER DATED: 16/09/2022 compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied.
33. It has been further followed in District Development Officer and Another Vs. Satish Kantilal Amralia10.
34. In the instant case, the appellants had served as a daily wager in non-teaching staff category from the year 1993-1997 and their services were terminated in sequel to the order dated 24th March, 1997 pursuant to which their services were de-regularized and that has been upheld by the Division Bench of the High Court in writ appeal preferred at the instance of the appellants in the earlier round of litigation.
35. In the afore-stated facts, the High Court of Kerala in the earlier round of litigation made certain adverse observations with regard to the nature of appointment as a daily wager but still the alleged termination was left open to examine the effect of non-observance of 2018(12) SCC 298 the Act, 1947 in the appropriate proceedings. Thus, what has been observed by the Division Bench in its Judgment in the earlier round of litigation may not have any relevance so far as the question which has been examined by the Tribunal in answering the reference in affirmative terms regarding non-observance of Section 25F of the Act 1947 and its consequential effect.
Page 34 of 38 Downloaded on : Tue Sep 20 20:59:30 IST 2022C/SCA/11884/2020 ORDER DATED: 16/09/2022
36. At the same time, the finding which has been recorded by the learned Single Judge and confirmed by the Division Bench of the High Court in the impugned judgment that if the appointment has not been properly made after going through the process of selection as provided under the statutory rules/Ordinance, as the case may be, if such irregular appointments are being terminated, Section 25Fwill not apply to a case of termination of such appointed employees. The view expressed by the High Court in the impugned judgment, in our considered view, is unsustainable in law and is not in conformity with the scheme of the Act 1947 and deserves to be set aside.
37. The submission made by learned counsel for the respondents that after the finding has been recorded by the Division Bench of the High Court in the earlier round of litigation holding the seal of approval on the appointments of the appellants to an act which is conceived in fraud and delivered in deceit, are not entitled to claim benefit under Section 25F of the Act 1947. In our considered view, the submission is without substance for the reason that appointments are made in the instant case on daily wage basis under the orders of the Vice Chancellor who is the competent/appointing authority and merely because their appointments are not in accordance with the procedure prescribed under the Ordinance would not disentitle them from claiming protection under provisions of the Act 1947.
Page 35 of 38 Downloaded on : Tue Sep 20 20:59:30 IST 2022C/SCA/11884/2020 ORDER DATED: 16/09/2022
38. The judgment in R. Vishwanatha Pillai(supra) on which learned counsel for the respondents has placed reliance was a case where the incumbent sought an appointment as Scheduled Caste candidate. On complaint, it revealed that he was not a member of the Scheduled Caste category and in that reference, a finding was recorded that the appointment has been obtained by fraud. What will be the consequence, it does not have any application in the facts of the instant cases.
39. So far as the judgment in Rajasthan Tourism Development Corporation Ltd. and another(supra) is concerned, it was a case where the workmen had not worked for 240 days in the calendar year which is the condition precedent for attracting the provisions of Section 25F of the Act 1947. In those circumstances, a passing reference has been made regarding non-observance of Section 25F of the Act 1947, which, in our view, may not be of any assistance to the respondents.
40. The next judgment relied upon in Satluj Jal Vidyut Nigam(supra) is the case of abolition of jagirs by virtue of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953. While examining the abolition of Jagirs under the Act, reference has been made of fraud and deceit which has no application in the facts of the instant case.
41. So far as the judgment in Punjab Urban Planning and Development Authority and Another(supra) is concerned, it was a case where three years' service was required for Page 36 of 38 Downloaded on : Tue Sep 20 20:59:30 IST 2022 C/SCA/11884/2020 ORDER DATED: 16/09/2022 seeking regularization of service in terms of circular issued by the authority under its policy dated 23rd January, 2001 and the incumbent had not completed three years of service for seeking regularization but due to some inadvertence, his name was included in the list of candidates who were regularized and after a show cause notice, his services were terminated. In that context, reference has been made which may not have any remote application on the facts of the case.
42. In the facts and circumstances of the instant cases and looking into the nature of service rendered by the appellants as daily wager for a short period, while upholding the termination of the appellants being in violation of Section 25F of the Act 1947, we consider it just and reasonable to award a lumpsum monetary compensation of Rs.2,50,000/- (Rupees two lakh fifty thousand) to each of the appellants-workmen in full and final satisfaction of the dispute in lieu of right to claim reinstatement with 50% back wages as awarded by the Tribunal."
6.3 Mr. Chauhan had relying on these judgements offered that the Board is willing to pay compensation of Rs.2,00,000 lakhs to each of the workmen. The workmen have been in service over a long period of time on an average 7 to 8 years.
Page 37 of 38 Downloaded on : Tue Sep 20 20:59:30 IST 2022C/SCA/11884/2020 ORDER DATED: 16/09/2022
7. The awards of the Labour Court are therefore modified and the petitioner Gujarat Pollution Control Board is directed to pay to each of the respondent workman compensation of Rs.3,00,000/-. The said amounts shall be paid within 8 weeks from the date of receipt of the certified copy of this order. Petitions are allowed to the aforesaid extent.
(BIREN VAISHNAV, J) DIVYA Page 38 of 38 Downloaded on : Tue Sep 20 20:59:30 IST 2022