Madras High Court
Management Of Connemara Hotel, Spencer ... vs Presiding Officer, Iii Additional ... on 6 November, 1997
ORDER
1. The Writ Petition is for the issue of a writ of certiorari to call for the records relating to I.D. No. 165/1985 dated July 8, 1987 on the file of the first respondent and to quash the same on the following allegations :
The petitioner manages the operation of Connemara Hotel, a reputed five star hotel in the City. Casual employees are engaged by the petitioner from time to time to cater to the banquets only. The second respondent was one such casual employee. He was offered employment on the dates on which banquets were held. The second respondent had no obligations to offer his casual employment nor was the petitioner bound to engage him. The whole thing depended on the requirements and exigencies in relation to the banquets that were held from time to time. The second respondent alleged that he was drawing a salary of Rs. 600/- per mensem and that the management terminated his service with effect from December 18, 1983. He had also alleged that Section 25-F of the I.D. Act had been violated. The Government of Tamil, Nadu in G.O.Ms. No. 842, Labour Department, dated April 23, 1985 made a reference under Section 10(1)(c) of the Industrial Disputes Act, hereinafter referred to as the Act, for adjudication of the issue relating to justification or otherwise of the non-employment of the second respondent.
The second respondent workman examined himself before the first respondent and in the course of the cross-examination by the petitioner management, he admitted that the petitioner management did take in casuals, that he did not have any appointment order in his favour, that his daily wage was Rs. 15, that he neither signed the attendance register nor punch cards, that permanent employees had identification cards, but he did not have one, that he was not a member of Provident Fund, that he was not sent for medical test at any point of time, that he did not remember the names of persons from whom he received his alleged monthly salary and that he was not given any letter of termination.
Evidence was let in on behalf of the petitioner management through the Personnel Officer, who deposed that the second respondent was working as a casual, that he would have worked for ten days a month, that he was paid daily wages of Rs. 8/-, that his salary was not Rs. 600/- per mensem as alleged by him, that in the attendance register, viz., Exs. M-1, M-2, M-3 or M-4 his name was not found, that his name was not found in the bonus register, Ex. M-5, and the Provident Fund Register, Ex. M-6, that the second respondent did not turn up for work after December 18, 1983 and that if he had reported for work, he would have been considered, that Ex. M-6 contained the Provident Fund Code number of Connemara Hotel and this evidence had gone unchallenged. The first respondent in his Award has stated that Exs. M-1 to M-4 belonged to Spencer & Co. and that Exs. M-5 and M-6 belonged to Spencer Intentional Hotels Ltd. and therefore there would have been attendance register for Spencer International Hotels Ltd., which had not been produced before the first respondent. Earlier Spencer & Co., were directly running Connemara Hotel, but, subsequently, on formation of Spencer International Hotels Ltd. in July, 1978 and Connemara Hotel, West End Hotel and Savoy Hotel were being run by Spencer Intentional Hotels. Some records which were printed for Spencer & Co. were continued to be used by Spencer International Hotels Ltd. Though this was brought to the notice of the first respondent, he had failed to take cognizance of the same and proceeded as though Exs. M-1 to M-4 did not pertain to the petitioner management at all. Though the names found in Exs. M-1 to M-4 were shown in Ex. M-6, viz., Provident Fund Register and brought to the first respondent's notice, he had completely ignored the same. The termination of employee had been brought about by the workman himself quite possibly in order to take employment else-where or on account of loss of interest in reporting for work as casual employee on daily wages and that consequently, neither Section 2(oo) of the Act is attracted nor for that matter Section 2-A of the Act and there was no termination of employment by the management. Alternatively, it was admitted that even if there was termination of service by the management, Section 25-F of the Act was not attracted as it could be said that the petitioner had not put in continuous service so as to attract Section 25-F of the Act. Now that the first respondent has passed an Award declaring the non-employment of the second respondent as not justified and directed his reinstatement with continuity of service and back wages, the present writ petition has been field.
2. The second respondent has not filed any counter in the main writ petition.
3. On the basis of the records available, the learned counsel for the second respondent sought to support the order of the first respondent.
4. The first respondent by his Award dated July 8, 1987 drew adverse inference against the writ petitioner management for non-production of the records summoned by the second respondent. The second respondent had filed I.A. No. 149/1986 requiring the petitioner management to produce the muster roll, wages register, bonus register, comment book, order book, security register, allocation register, E.S.I. Register and Provident Fund Register for the years from 1980 to 1983. The petition was allowed, but the registers were not produced. No explanation was also offered by the petitioner management. The first respondent rejected Exs. M-1 to M-4, the attendance registers from April 1983 to September, 1983 on the ground that they related to Spencer and Co. In the view of the first respondent, the petitioner management had failed to produce any record to show that the management of Connemara Hotel and Spencer International Hotels Ltd. came under Spencer & Co. Those documents admittedly did not show the name of the second respondent anywhere. The first respondent also observed that the petitioner management had admitted that the second respondent was working on a casual basis and that he was paid for the days he worked and it was inconceivable that there would not be any record to show that the petitioner management paid the amount due to the second respondent. So far as Exs. M-5 and M-6 are concerned, the first respondent rejected them holding that merely because bonus and provident fund were not paid to the second respondent, it could not be presumed that he never worked under the petitioner management. The first respondent also found that the petitioner management had not sent any reply to Ex. W-1 notice issued by the second respondent and no reasonable explanation had been given by the petitioner management. The first respondent ultimately held that the petitioner had established that the second respondent was in continuous service for over one year, that he was entitled to claim the benefits of Section 25-F of the Act and that the contention of the second respondent that he was victimised for trade union activities appeared to be probable, that his termination without complying with the provisions of Section 25-F of the Act was not valid, and set aside the order of termination and directed reinstatement and back wages, but not other benefits.
4A. Mr. Sanjay Mohan, learned counsel for the petitioner, submitted that the first respondent failed to see that the names found in Exs. M-1 to M-4 were also found in Ex. M-6, to which is the Provident Fund Register of the petitioner hotel, that evidence was also let in on behalf of the petitioner that Ex. M-6 Provident Fund Register contained Code No. TN/1962/C of Connemara Hotel and had the first respondent gone through Ex. M-6 and Exs. M-1 to M-4 thoroughly, he would not have come to the wrong conclusion that Exs. M-1 to M-4 did not relate to the petitioner. The learned Counsel also submitted that identity of the petition was not at all challenged in the proceedings and the claim petition itself filed by the petitioner disclosed the name of the respondent as the management of Connemara Hotel, Spencer International Hotels Ltd., Anna Salai, Madras-2, and the objection had not been taken by the second respondent at all at any point of time and the first respondent was not at all justified in saying that the petitioner had not established that the management of Connemara Hotel and Spencer International Hotels Ltd. came under Spencer & Co. He also submitted that the management witness was not cross-examined on the merits of the case and his evidence went unchallenged, particularly when he had stated that the second respondent was receiving only Rs. 8/- per day and the same not having been challenged, the evidence on the side of the management should have been accepted. The further point made by the learned counsel is that the second respondent had not at all anywhere stated that he had worked for 240 days in a year for the petitioner management to have violated Section 25-F of the Act. He had also not made a plea that though he was appointed as a workman, no statutory deduction like Provident Fund had been made.
5. The learned counsel fairly conceded that the case of abandonment set up by the petitioner management was not sustainable. The learned counsel however submitted that the first respondent Labour Court clearly erred in finding that the second respondent had been victimised. This was against established legal position that the finding on victimisation could not be reached on mere probability, that there must be concrete evidence let in by the affected person and in the absence of such material in the case the finding regarding victimisation must be held to be erroneous and therefore vacated.
6. The learned counsel also pointed out that a person would be entitled to bonus under the Bonus Act, if he had worked for 30 days and provident fund if he had worked for 240 days in a year and the records produced on behalf of the management Exs. M-5 and M-6 clearly substantiated the case of the petitioner management that the second respondent was only a casual labourer. The learned Counsel submitted that non-production of the documents had been made much of by the first respondent, as according to the learned Counsel the petitioner management had produced the best evidence to substantiate his contentions in the shape of Exs. M-5 and M-6. The learned Counsel also submitted that a casual or temporary employee on termination of service, would not be entitled to claim reinstatement and the order of the first respondent directing reinstatement was unsustainable.
7. In support of his contentions, the learned counsel relied on the following decisions :
(1) Crompton Engineering Co. (Madras) Private Ltd. v. Additional Labour Court, Madras and Others (1975-I-LLJ-207) (SC).
(2) Mount Mettur Pharmaceuticals Ltd. v. Second Additional Labour Court, Madras, and another 67 FJR 60.
(3) Reichold Chemicals India Ltd. v. Its Workmen and another (1997-II-LIJ-1008) (Mad) and (4) Bengal Bhatdee Coal Company v. Ram Prabesh Singh and others (1963-I-LLJ-291) (SC).
8. As against the submissions made by the learned Counsel for the petitioner, the learned counsel for the second respondent, submitted that the order of the first respondent had been reached on a proper and correct appreciation of the material on record and no exception could be taken to the same. The petitioner management had deliberately withheld the material documents and if only those documents had been produced, they would have clearly shown that the second respondent was an employee of the petitioner hotel and the first respondent was perfectly justified in drawing adverse inference for non-production of material documents. According to the learned counsel, even Exs. M-5 and M-6 did not relate to the relevant period and they should not be relied on. The learned counsel also submitted that from Exs. M-5 and M-6 alone there could not be a conclusion that the second respondent was not an employee of the petitioner management. In support of her arguments, the learned counsel relied on the following decisions :
1. D. K. Yadav v. J. M. A. Industries Ltd. (1993-II-LLJ-696) (SC),
2. Srirangam Co-operative Urban Bank Ltd., Srirangam v. Labour Court, Madurai' and another 1996 1 LLN 647 and
3. Sambandamurthy & 5 others v. The II Additional Labour Court, Madras, and another (1997-I-LLJ-485) (Mad).
9. Pending the proceedings in W.M.P. No. 4294/1988 by order dated March 21, 1988 this Court granted interim stay of all further proceedings in pursuance of the Award in I.D. No. 165/1985 dated July 8, 1987. However, the second respondent filed W.M.P. No. 14833/1988 for vacating the interim stay and on December 22, 1988 this Court passed the following order :
"Interim stay is made absolute on condition of the petitioner in the writ petition paying to the workman (A. Subramany, 2nd respondent in the writ petition) a sum of Rs. 15,000/- (Rupees fifteen thousand only) by way of demand draft in favour of the said workman within eight weeks form this date, failing which the stay granted will stand vacated. If, for any reason, the writ petition is not disposed off within a period of nine months, the workman can move this Court for future wages under Section 17-B of the Industrial Disputes Act. Post the writ petition for final disposed on March 10, 1989."
It would appear that the writ petition was not posted for final hearing in W.M.P. No. 18953/1989 taken out by the second respondent, this Court passed the following order :
"Heard both. In view of the earlier order passed by this Court in W.M.P. Nos. 4294 and 14833/1988 dated December 22, 1988, the second Management is directed to pay the petitioner the last drawn wages from January 1, 1990 and the arrears accrued upto the end of October, 1990 within four weeks from today and thereafter regularly every month till the disposal of the writ petition."
10. I take is that the writ petitioner has been complying with the order and the second respondent has been receiving the wages. He has not been reinstated.
11. The Labour Court held that the contention of the petitioner that he was victimised for trade union activities appears to be probable, as the respondent failed to issue any reply to Ex. W-1. In this connection, the learned counsel for the petitioner rightly contended that this finding of the Labour Court cannot be Sustained - In support of this contention he relied on two decisions of the Supreme Court. The first one in Bengal Bhatdee Coal Co. v. Ram Prabesh Singh and Others (supra). While dealing with the dismissal of workmen found guilty at the domestic enquiry of obstructing willing workers from doing their work during a strike and also for inciting other workers to cause such obstruction, the Supreme Court set aside the decision of the Industrial Tribunal which held that the workmen were victimised on the ground that the punishment of dismissal was ground disproportionate to the offence committed by them, as based on mere surmises and conjectures, without evidence on record.
12. The next decision relied on by the learned Counsel is M/s. Bharat Iron Works v. Bhagubhai Balubhai Patel and Others . The Supreme Court while considering the plea of victimisation set up in that case observed as follows :
"Victimisation is a serious charge by an employee against an employer and therefore, it must be properly and adequately pleaded giving all particulars upon which the charge is based to enable the employer to fully meet them. The charge must not be vague or indefinite, being as it is an amalgam of facts as well as inferences and attitudes. The fact that there is a union espousing the cause of the employees in legitimate trade union activity and an employee is a member or active office-bearer thereof, is per se, no crucial instance".
The Supreme Court also observed that the onus of establishing a plea of victimisation will be upon the person pleading it. Mere allegations, vague suggestions and insinuations are not enough. All particulars of the charge brought out if believed, must be weighed by the Tribunal and a conclusion should be reached on a totality of the evidence produced.
13. In the instant case, the Labour Court has indeed proceeded on mere surmises and the case of victimisation found by the Labour Court cannot be sustained.
14. The next question will be as to what was the kind of employment that the workman was given in the petitioner establishment. The second respondent workman had asked for production of certain documents and his application was allowed. The management petitioner did not produce those documents summoned. On the contrary they produced such of those documents convenient to them to show that the second respondent could have been only a casual employee.
15. In Gopal Krishnaji v. Mohd. Haji Latif the Supreme Court held that the party in possession of best evidence which would throw light on the issue in controversy withholding it would entail adverse inference being drawn against him notwithstanding that onus of proof does not lie on him and that party cannot rely on abstract doctrine of onus of proof or on the fact that he was not called upon to produce it.
16. In the instant case, the petitioner management was called upon to produce the documents and for obvious reasons, only some selected documents were produced and the others kept back. The Court had necessarily to draw adverse inference against the party. No doubt, it is contended by the learned counsel for the petitioner that Exs. M-5 and M-6 clearly show that the second respondent was not a permanent employee of the petitioner establishment, that his name did not find a place in either of the two documents which pertain to bonus and Employees Provident Fund. If really the documents kept back by the petitioner management did not throw any light on the facts in dispute, there was no plausible reasons as to why the petitioner management kept back those documents. The petitioner management cannot get away by merely saying that it has produced the best available documents and that the best evidence was in the shape of Exs. M-1 to M-6. No doubt, Exs. M-1 to M-4 were rejected by the Labour Court on the ground that they did not relate to the petitioner management. Assuming that they related to the petitioner management and as contended by the learned Counsel for the petitioner the names found in Exs. M-1 to M-4 found their place in Exs. M-5 and M-6 and that would conclusively show that Exs. M-1 to M-4 were related to the petitioner management only, still it did not absolve the petitioner management of their duty to produce the documents directed to be produced. If those documents had been produced, probably they would have been against the case of the petitioner management.
17. In H. D. Singh v. Reserve Bank of India and others (1996-I-LLJ-127) the question of non-production of records was considered by the Supreme Court. The matter arose as under :
Certain persons were employed to assist and help the Examiners of Coins and Notes called Tikka Mazdoors. They were to report to the bank regularly in the morning to ascertain whether they could get work. They were paid daily wages. One such Tikka Mazdoor, who passed the Matriculation examination after appointment, was removed from the rolls and was not given employment from a particular date. This was done pursuant to a confidential circular issued by the bank to the effect that Matriculates could not be retained in the list of Tikka Mazdoors. However, no written order was issued to the employee concerned terminating his services. In the industrial dispute raised by the employee, a preliminary objection was taken by the employer bank stating that there was no termination of service and consequently, Section 2-A of the Industrial Disputes Act was not attracted. It was further contended by the bank that the employee had failed to inform the bank that he had passed Matriculation examination. On the violation of Section 25-F of the Act, it was contended that the employee had not worked for 240 days in any year. The Tribunal rejected the claim of the employee and accepted the contention of the bank. The matter went to the Supreme Court. At this stage, it would be pertinent to give certain other details relating to the case. The employee in his claim statement gave the number of days he had worked in the establishment. This was disputed by the bank. The employee required the bank to produce the Attendance Register. The bank took the stand that the Attendance Register for a particular month had been destroyed and contended that Sundays and other holidays were not taken into consideration in computing the number of working days of the appellant. Affidavits were filed before the Supreme Court calculating the number of days the employee worked as 271 days. The bank was also charged as having tampered with the records. The required records were also not produced. In the counter affidavit before the Supreme Court, the bank stated that when the matter was before the Industrial Tribunal, the registers in question were filed in another case before the Tribunal and produced there and that at the time of hearing before the Supreme Court, the Attendance Register had been destroyed and payment registers were available with the bank as proof of the number of days on which the employee worked. It was also the case of the bank that the appellant was only a badli worker. There was a confidential circular issued that workmen like the appellant should not be engaged continuously, but should as far as possible be offered work on rotation basis.
18. The Supreme Court allowed the appeal of the Tikka Mazdoor holding as follows :
(a) Striking off the name of the appellant/workman from the roll by the employer amounted to termination of service and such termination was retrenchment within. Section 2(oo) of the Act - if effected in violation of the mandatory provision contained in Section 25-F and was invalid.
(b) The records required by the employee not having been produced by the bank and in the absence of evidence to the contrary, the Court had to draw the inference that the employee had worked for more than 240 days.
(c) Direction that Tikka Mazdoor should not be engaged continuously, but should be offered work on a rotation basis was an Unfair Labour Practice as defined in Section 2(ra) of the Act read with item 10 of Schedule V.
19. In Sambandamurthy and 5 others v. The II Additional Labour Court, Madras and another S. M. Abdul Wahab, J. had occasion to consider the question of non-production of documents. The learned Judge held that the rejection of the application by the employee for production of documents was improper.
20. I have already referred to the non-production of the documents required by the second respondent workman by the management/writ petitioner. Let us now have a look at the claim petition. In the claim petition, there are absolutely no details given regarding the number of days the second respondent workman had worked in the petitioner establishment. Equally, the counter is bald.
21. At the same time if we analyse the evidence of the second respondent-workman we can note a lot of discrepancies. For example he had deposed that his daily salary was Rs. 15/- and his monthly salary was Rs. 600/-. He also deposed that he did not know the name of the person from whom he was collecting his monthly salary. He also said that he had not signed in the Attendance Register, that he did not have a Punch Card nor did he get an Identification Card and that he was not sent for medical test.
22. In the above circumstances, one had to conclude that both sides had not come out with the truth. It has therefore to be found that the second respondent was merely a casual employee. It is also to be held that the second respondent has not established that he had worked for more than 240 days during his employment with the petitioner management.
23. I am aware that the Supreme Court in Workmen of English Electric Co. of India Ltd., Madras v. The Presiding Officer and another (1990-I-LLJ-344) had held that the quantum of evidence or appreciation thereof for recording findings of fact should not come within the purview of the High Court's extraordinary jurisdiction under Article 226 of the Constitution. However, in the instant case, there is a total misreading of the facts and circumstances of the case and the materials on record and consequent misapplication resulting in perverse finding which entitles me to interfere with the decision of the Labour Court. I have the support of National Engineering Industries Ltd. v. Shri Kishan Bhagerin and others (1988-I-LLJ-363) (SC), which had noted with approval the decision of the Calcutta High Court in Mcleod and Co. v. Sixth Industrial Tribunal, West Bengal and S. K. Meni v. Karona Sahur Co. Ltd. ((1994-II-LLJ-1153) (SC). In the latter case, the Supreme Court upheld the interference by the High Court with the decision of the Labour Court. The finding of the Labour Court in the instant case as to the nature of the second respondent's employment being the very foundation of its jurisdiction this Court has ample powers to interfere under Article 226 of the Constitution of India.
24. Now that it has been found that the second respondent was only a casual employee and that he had not established that he had worked for more than 240 days, the next question is as to what kind of order is to be passed. The learned Counsel for the petitioner management relied upon the judgment in Crompton Engineering Co. (Madras) Private Ltd. v. Additional Labour Court, Madras and Others and contended that there the workmen were appointed only for a specific period or for a particular work and as soon as the period was over or the work was over, their employment automatically came to an end and there was no rule or law which contemplated that such an employee must be given work by the employer. In that case three workers were temporarily employed by the management for a specific period in respect of a particular contract work undertaken by the petitioner. But, the three persons had been employed for several such periods and for several such contracts. Therefore, the appointments were purely temporary and came to an end as soon as the period of the job was over. Those persons raised an industrial dispute on the allegation that they were not given any work with effect from a particular date. The dispute was referred for adjudication. The Labour Court proceeded on the basis that there was some difficulty in holding that Respondents 2 to 4 therein were permanent employees of the Crompton Engineering Company which had separate muster rolls for permanent labourers and the benefits that were available to the permanent labourers were not given to these workmen. Those persons were paid only daily rates of wages and they were paid at the end of the week on Saturdays and they were paid only for the days they had worked and they were not entitled to wages on days on which they did not work and they were not entitled to any holidays.
After all these, the Labour Court on the basis of the judgment in Elumalai v. Simplex Concrete Piles (India) Ltd. 1969 (37) FJR 396 came to the conclusion that even casual labourers were included in the definition of "workmen" in Section 2(s) of the Act and therefore, those persons were entitled to reinstatement. This Court reversed the decision of the Labour Court and held that in the decision relied on by the Labour Court the only question that was considered by this Court was whether a casual worker would come within the expression "workman" occurring in Section 2(s) of the Industrial Disputes Act. The Labour Court in that case clearly made a mistake in extending the benefit of reinstatement to the worker by clearly misconstruing the ration in Elumalai v. Simplex Concrete Piles (India) Ltd. This court held as follows :
"Essentially, an order of reinstatement postulates the existence of a post in which the particular person was working and with reference to which his employment was terminated. Where there was no post and there was no termination of employment, but only there was the employment of a particular individual for a specific period or for a specific work, the employment automatically came to an end on the expiry of such period or after the work was over and consequently there was no termination and there was no question of reinstatement."
In my view, this case will not apply to the facts of the present case. The learned Judge was dealing with a situation where employees were engaged for a specific period and for a particular purpose.
25. The next case relied on by the learned counsel for the petitioner is Mount Mettur Pharmaceuticals Ltd. v. Second Additional Labour Court, Madras and another (supra). That was a case of retrenchment and Section 25-F of the Industrial Disputes Act was not complied with, but the Bench having regard to die facts of that case that there was recession and the employer was not in a position to provide work for them, held that there was a discretion left with the Labour Court either to direct reinstatement with back wages or to award compensation instead. It was specifically found that the management was not in a position to reinstate the employees in that case. This case also will not apply to the facts of the present case. It was found in that case that there was recession and the employer was not in a position to give work for them. The workers concerned in that case were also not casual employees.
26. The next decision relied on by the learned counsel for the petitioner is Reichold Chemicals India Ltd. represented by its Deputy General Manager and Secretary, Madras v. Workmen Employed in Reichold Chemicals India Ltd. represented by General Secretary, Madras and another. In that case, casual labour was employed for the posts of watchmen. It was alleged by the company that when these casual workmen came to know that the company was going to make alternative arrangements for effective security through private agency, they left the services. But, after about nine months, these workmen raised an industrial dispute alleging that their services were terminated. The Labour Court, though found that the non-employment of the workmen was not malafide, held that it was not justified and hence directed their reinstatement with continuity of service with back wages, but without other attendant benefits. It was held by Jayarama Chouta, J. that it was not the law that in every case of infringement of Section 25-F, the award of reinstatement with back wages was a must and particularly when the Labour Court had come to the conclusion that the employee in question were casual labourers and that their removal was not with mala fide intention but for the purpose of entrusting the security work to private agency and that the proper course for the Labour Court would have been to consider as to whether compensation could be awarded in lieu of reinstatement. In that view the learned Judge remitted the matter to the Labour Court for fresh disposal.
27. The learned Counsel for the contesting second respondent relied on Sambandamurthy and 5 others v. The II Additional Labour Court Madras & Another. In that case an Industrial Dispute was raised by workmen relating to non-employment. On a reference issued by the appropriate Government, the Labour Court ordered reinstatement. The workmen sent registered notice to the management claiming the implementation of the award. Since there was no positive response the workmen filed petition under Section 33-C(2) of Industrial Disputes Act claiming monetary benefit. The Labour Court rejected the claim petition on the ground that there was no demand on the part of the workmen for reinstatement. The workmen had sent letters under registered post, but they had been returned with an endorsement "refused". However, they filed a claim petition and they also filed counter. Therefore, Abdul Wahab, J. held that even the registered notice had not been received, filing of claim petition under Section 33-C(2) of the Industrial Disputes Act was sufficient, indicating their intention to claim reinstatement, and that the management ought to have reinstated the workmen after serving of the claim petition.
28. The next decision is Srirangam Co-operative Urban Bank Ltd. v. Labour Court, Madurai and another. In that case the Labour Court upheld the termination on the ground that initial appointment was irregular. The writ petition filed by workmen was allowed by the single Judge on the ground that there was no compliance under Section 25-F of the Act. On appeal by the employer the Division Bench concurred with the setting aside of the order of termination, but modified the terms of reinstatement stating that the workman should be reinstated in the same position and in the same nature of employment which he was enjoying on the date of termination. Inasmuch as the order of the learned single Judge did not clarify the position in which the workman had to join, it was modified.
29. In English Electric Company of India Ltd. v. Industrial Tribunal, Madras and another. (1987-I-LLJ-141), a Bench of this Court set down the law regarding casual employees follows at pp. 153-154 :
"Merely because a worker is not in employment at a particular point of time and more so in the case of a casual workman whose employment depends upon the availability of work, inference of retrenchment will not necessarily follow.
A casual worker who has not been in continuous service for not less than one year cannot complain of termination by the employer merely on the ground that the day on which he presented himself for work, he was not given work. The concept of retrenchment will apply in a limited number of cases where casual workers have been in continuous service for a period of not less than one year and the employer has positively told them that there is no work for them and hereafter they will not be given work. It is extremely doubtful even in such a case even if no work is available for a few days or a week that will amount to "retrenchment".
No doubt, this matter was taken to the Supreme Court and the Supreme Court in Workmen of English Electric Co. of India Ltd., Madras v. The Presiding Officer and another already referred to, however, did not disturb the principle of law laid down by the Bench of this Court regarding the concept of retrenchment in respect of casual employees who had not proved that they had put in 240 days during the year. The Supreme Court modified the finding reached by the Bench as to whether a particular set of employees had put in more than 240 days of work during the year. The principle still holds the field.
30. In Prakash Cotton Mills Pvt. Ltd. v. The Rasthriya Mill Mazdoor Sangh (1987-I-LLJ-97), the Supreme Court held that badli workmen who had got work only in the absence of regular employees and did not have any guaranteed right of employment could not claim any right to employment in the place of any absentee employee, that they were only casual employees without any right to be employed and that they were not entitled to any closure compensation. The Supreme Court also held that Section 25-C of the Industrial Disputes Act excluded a badli workman or a casual workman from the benefit of compensation in case of lay off.
31. In Central Bank of India v. S. Satyam & Others (1996-II-LLJ-820), the Supreme Court held that the benefit of applicability of Section 25-F could be claimed by a workman only if he had been in continuous service for not less than one year as defined in Section 25-B, that any other retrenched workman who did not satisfy this requirement of continuous service for not less than one year could not avail the benefit of Section 25-F which prescribed the conditions precedent to retrenchment of workman of this category and that Section 25-F prescribed the procedure for retrenchment and ordinarily applied the principle of 'last come first go'.
32. In D. K. Yadav v. J. M. A. Industries Ltd. (supra), the workman was informed that he had wilfully abstained from duty for more than 8 days without leave or prior information or previous permission from the management and therefore 'deemed to have left the service of the company on your own account and lost your lien on the appointment with effect from December 3, 1980.' The workman's case was that despite his reporting to duty on December 3, 1980 and everyday continuously thereafter he was prevented entry at the gate and he was not allowed to sign the attendance register. The Supreme Court held that the principles of natural justice required that the workman should be given an opportunity. There must be an enquiry and since there was no enquiry, the Supreme Court directed reinstatement with 50% back wages. It has to be immediately mentioned that the Supreme Court was not dealing with the case to a casual employee.
33. Though I have already adverted to the decision of Abdul Wahab J. (1997-I-LJL-485) (Mad) the said decision with regard to the question of reinstatement will not apply to the facts of the present case. Equally, the decision of the Bench in Srirangam Co-operative Urban Bank Ltd. v. Labour Court, Madurai and another will not apply to the facts of the present case as it was not a case of casual employee.
34. The decision applicable to the facts of the present case is the one decided by Jayarama Chouta, J. in Reichold Chemicals India Ltd. v. Workmen employed in Reichold Chemicals India Ltd and another (supra). The learned Judge, no doubt, found that the removal of the casual labourers by the management was not mala fide and the learned Judge remanded the matter to the Labour Court to consider as to whether compensation could be awarded in lieu of reinstatement.
35. I respectfully follow the judgment of Jayarama Chouta, J. and hold as follows :
1. The finding of the Labour Court that the second respondent had been victimised is vacated.
2. The order of the Labour Court directing reinstatement of the second respondent with back wages is also set aside.
3. The matter is remanded to the Labour Court to quantify the compensation payable to the second respondent.
It is made clear that whatever had already been paid to the workman during the proceedings should not be recovered from him nor should it be taken into consideration in fixing the compensation. Having regard to the conduct of the management in keeping back the documents required to be produced, I am clearly of the view that the course suggested above will meet the ends of justice.
36. The writ petition is allowed to the extent indicated above. There will, however, be no order as to costs.