Madras High Court
R.Sabapathy vs The Presiding Officer on 1 July, 2011
Author: D.Hariparanthaman
Bench: D.Hariparanthaman
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01/07/2011
CORAM
THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN
Writ Petition (MD) No.9517 of 2005
R.Sabapathy ... Petitioner
Vs.
1.The Presiding Officer,
Labour Court,
Tirunelveli.
2.The Management,
Tamil Nadu State Transport
Corporation,
Madurai Division,
Tirunelveli. ... Respondents
Prayer
Petition filed under Article 226 of the Constitution of India praying
for the issuance of a writ of Certiorarified Mandamus, calling for the records
of 1st respondent relating to the award passed in I.D.No.179 of 1997 dated
07.11.2002 and quash the same and consequently directing the 2nd respondent to
reinstate the petitioner as Conductor with all attendant benefits.
!For petitioner ... Mr.V.Ramajegadeesan
^For respondent-2... Mr.R.Sivamanoharan
:ORDER
The petitioner was a Conductor employed by the second respondent Transport Corporation. The second respondent Transport Corporation is operating passengers Transport in Tirunelveli, Tuticorin and adjoining districts. He was employed on daily rated basis at Rs.42.50 per day between 15.11.1993 and 15.12.1996 for a period of three years. According to the petitioner, he rendered uninterrupted service for three years between 15.11.1993 and 15.12.1996 and after 15.12.1996, he was abruptly denied employment, without any notice. He raised an Industrial Dispute regarding his non employment before the concerned Conciliation Officer and the Conciliation ended in failure. Thereafter, the petitioner took up the matter before the first respondent. The first respondent took it on file as I.D.No.179 of 1997.
2.The second respondent Corporation filed a counter statement refuting the allegations of the petitioner and the crux of the same is as follows:
The petitioner has to establish that he rendered continuous service. As per the certified Standing Orders of the respondent Corporation, there are 5 categories of workmen employed by the 2nd respondent viz., (1) Permanent (2) Probationers (3) Temporary (4) Casual and (5) Apprentice. The petitioner was a casual workman. The casual workmen are employed by Branch Managers of depots for some unexpected or unforeseen work which is not likely to last continuously. The Branch Managers have no powers to appoint any workman. The causal workmen are employed in works other than the works that are permanent in nature and they are employed to meet the emergent situations. The casual workmen are employed whenever the permanent workmen have availed more leave than expected. They are also employed during festivals and celebrations on rare occasions. The petitioner was one such casual workman. The petitioner was not recruited through Employment Exchange. He did not face any selection process. Hence, he could not be regularised. The petitioner could not claim permanent status on the ground that he completed 240 days. He was not terminated in violation of 25 (F) of the I.D.Act. for seeking permanency.
3.Since the second respondent took a stand that the petitioner did not render uninterrupted service between 15.11.1993 and 15.12.1996, the petitioner filed an application in I.A.No.304 of 2002 in I.D.No.179 of 1997 seeking direction to produce the (Muster Roll) Attendance Register and (Payment Vouchers) Wages Registers for the period between 15.11.1993 and 15.12.1996. The second respondent filed a counter affidavit in the said interlocutory application stating that they did not maintain the Muster roll as well as the Wages Registers for casual workmen and therefore, they could not produce those documents. The same was recorded by the 1st respondent in the order dated 04.10.2002 while disposing I.A.No.304 of 2002 in I.D.No.179 of 1997. It was stated in the order that if it was established that the second respondent deliberately refused to produce documents, adverse inference could be taken.
4.Before the Labour Court, the petitioner got examined himself as witness before the Labour Court and 8 documents were marked as Exs.W.1 to W.8 on his side. One Superintendent by name Mr.Jeyakumar was examined as witness for the management and documents M1 and M2 were marked on the side of the Management. In the Industrial Dispute, the following issues were framed by the Labour Court.
i) Whether the petitioner was a temporary workman or casual workman?
ii) Whether there exists employer and employee relationship between the petitioner and the second respondent?
iii) Whether the petitioner is entitled to the relief of reinstatement, continuity of service with back wages?
iv) What are the other reliefs to which the petitioner is entitled to?"
5.After hearing both sides, the Labour Court passed the award dated 07.11.2002 in I.D.No.179 of 1997, wherein, it is held that the petitioner was not a temporary workman and he was a casual workman. The Issue No.1 was answered accordingly.
5.1.The Labour Court held that since he was a casual workman, there was no relationship of employer and employee between the petitioner and the second respondent. This was the answer for the second issue.
5.2.The Labour Court has held that the petitioner is not entitled to reinstatement, as claimed in his claim petition. This was the answer for the third issue.
5.3.It was further held that the petitioner is not entitled to any other relief. This was the answer to the fourth issue. Accordingly, the Industrial Dispute was dismissed, on 07.11.2002 in I.D.No.179 of 1997.
6.The petitioner has filed the present writ petition to quash the aforesaid award of the first respondent dated 07.11.2002 made in I.D.No.179 of 1997 and for a consequential direction to the second respondent to reinstate him as Conductor, with all attendant benefits.
7.No counter affidavit is filed by the respondent Management.
8.Heard both sides.
9.The learned counsel appearing for the petitioner assailed the findings of the Labour Court as totally perverse and the award was passed without application of mind to the available documentary and oral evidence on record. According to the petitioner, the framing of issue as to whether the petitioner was a temporary workman or casual workman itself is not correct. It is submitted that though he was a daily rated workman, he should be classified as permanent workman, since the job was permanent in nature and also, he was continuously employed. According to him, the Labour Court did not even classify him as Temporary workman and erroneously classified as casual workman. He was not employed on isolated occasions. The casual workmen are employed during isolated occasions viz., to ease heavy traffic during festivals and temple celebrations, etc.
10.Regarding issue No.2, the learned counsel appearing for the petitioner submitted that even assuming that the petitioner is a casual workman, since he is workman under Section 2(S) of I.D.Act, the Labour Court was not correct in holding that there was no employer and employee relationship. It was not the case of the Management that the petitioner was a contract labourer. In those circumstances, they could claim that there was no employer and employee relationship.
11.The learned counsel appearing for the petitioner vehemently contended that the second respondent adopted unfair labour practice by employing the petitioner on daily rated basis under the cover of casual workman, for permanent work, in order to deprive various benefits, such as scale of pay, D.A., H.R.A., C.C.A. and leave benefits etc.
12.The learned counsel appearing for the petitioner strenuously contended that the Labour Court should have taken adverse inference as the respondent Corporation failed to produce the Attendance Registers and Wage Registers, stating that they do not maintain the same. According to him, their case is not that they destroyed the same due to lapse of time. It was their specific case that they do not maintain the said registers. It was submitted that both the Attendant Registers and Wage Registers are statutory Registers that have to be maintained under the Payment of Wages Act and the Motor Transport Workers Act. Hence, adverse inference should have been drawn by the Labour Court and the Labour Court ought to have held that the petitioner rendered uninterrupted service. He relied on the following judgments:
i) (2006) 1 SCC 106 (R.M.Yellatti Vs. Assistant Executive Engineer)
ii) 2004 (2) LNN 1054 (R.Radhakrishnan Vs. Presiding Officer, Labour Court, Cuddalore)
iii) W.P.No.1061 and 1062 of 1995 dated 21.06.2002 (The Management of Agricultural Research Station, Tamil Nadu Agricultural University, Kovilpatti Vs. The Controlling Authority under the Payment of Gratuity Act (Assistant Commissioner of Labour, Tirunelveli) and three others)
iv) Order of this Court dated 10.04.2007 made in W.P.No.25243 of 2003 (K.Sekar Vs. The Presiding Officer, Labour Court, Coimbatore)
13.In any event, it was submitted that when the petitioner produced the available chalans for having remitted at the end of each day collection of the bus in Ex.W4 series and established that he rendered service for more than 240 days in 12 months, the Labour Court ought to have held that the non employment was not justified. According to the learned counsel, he prepared a chart showing the number of days worked by the petitioner based on the chalans in Ex.W4 series. As per the chart, the petitioner worked for 27 days in 1993, 195 days in 1994, 249 days in 1995 and 12 days in 1996. Since he worked for 249 days in 1995 alone as per the chalans in Ex.W4 series, the Labour Court ought to have held that the termination of the petitioner, without complying with Section 25 (F) of I.D.Act, is void abinitio. The learned counsel appearing for the petitioner further submitted that since the termination amounts to retrenchment under Section 2(oo) of the I.D.Act, the termination is void abinitio, as the mandatory conditions stipulated under Section 25(F) of I.D. Act were not complied with. He relied on the following judgments.
i)1990 (3) SCC 682 (Punjab Land Development and Reclamation Corporation Ltd., Vs. Labour Court, Chandigarh.
ii)1993 (2) SCC 696 (D.K.Yadav Vs. J.M.A.Industries Ltd.)
iii)Order in batch of W.A.Nos.1294 of 1997 on 08.12.1997 (Management of Rajiv Gandhi Transport Corporation, rep. by its Managing Director, Kamarajar Salai, Chennai - 5 VS. V.Prabhu).
iv)2006(2) LLJ 258 (Sekaran Vs. G.M. Tamil Nadu State Transport Corporation, Coimbatore Division-II, Chennimalai, Erode)
v)2004(2) LLN 1054 Madras (R.Radhakrishnan Vs. Presiding Officer, Labour Court, Cuddalore)
vi)1996 (1) LLN 647 (Srirangam Co-operative Urban Bank Ltd., Srirangam Vs. Labour Court, Madurai and another)
vii)Order of this Court dated 10.04.2007 made in W.P.No.25243 of 2003 (K.Sekar Vs. The Presiding Officer, Labour Court, Coimbatore)
14.On the other hand, the learned counsel appearing for the second respondent sought to sustain the award passed by the Labour Court. However, he fairly submitted that the findings of the Labour Court on the issue No.2 that there was no employer and employee relationship, is erroneous. But, it was contended that the Labour Court correctly held that the petitioner was a casual workman employed to meet the emergent and unforeseen situations. According to him, the petitioner did not work for 240 days in the preceding 12 months with reference to the date of termination and therefore even if he worked for more than 240 days prior to the preceding 12 months, Section 25 (F) of I.D.Act could not be attracted. He has relied on the following two decisions of the Apex Court in this regard.
i)2003(4) CTC 425 SC (Uttar Pradesh Drugs and Pharmaceuticals Company Limited Vs. Ramanuj Yadav and others)
ii)2008(2) LLN 654 SC (Sita Ram and others Vs. Moti Lal Nehru Farmers Training Institute)
15.That is, according to the learned counsel for the Management, the employment of the petitioner for 249 days in 1995 could not help him, as he did not work for more than 240 days in 1996. It was further contended that since the petitioner failed to prove that he worked for more than 240 days in the preceding 12 months from the date of termination, he is not entitled to the relief of reinstatement. The learned counsel for the second respondent also submitted that since the appointment of the petitioner was irregular and the same became void, he could not seek regularisation of the service and he is not entitled to any relief. For this purpose, he relied on the following judgments.
i)2006(3) LNN 78 (SC) (Secretary, State of Karnataka and others)
ii)2006(3) LLJ 1055 SC (Accounts Officer (A & I) A.P.SRTC and others)
16.The learned counsel appearing for the second respondent submitted that even if the termination amounts to retrenchment, this Court could award compensation in lieu of reinstatement. He relied on the following judgments in this regard.
i)2006(3) LLN 806 SC (Municipal Council, Sujanpur Vs. Surinder Kumar)
ii)2009(4) LLN 24 SC (Jagbir Singh Vs. Haryana State Agriculture Marketing Board and another)
iii)2010(3) LLN 79 SC (Senior Superintendent, Telegraph (Traffic), Bhopal Vs. Santosh Kumar Seal and others)
17.I have considered the submissions made on either side and perused the materials available on record.
18.Since the learned counsel for the second respondent conceded that the Labour Court was not correct in holding that there was no employee-employer relationship, there is no necessity to render a finding on that issue.
19.To decide the issue as to whether the Labour Court was correct in holding that the petitioner was a casual workman, the details relating to the number of days worked by the petitioner during his employment between 15.11.1993 and 15.12.1996 are relevant. The number of days worked by the petitioner is also relevant to decide as to whether Section 25 (F) is attracted or not. One cannot expect that the workman could produce documents in support of the number of days, he worked., since the documents such as Attendance Registers and Wage Registers are in possession of the Management. It is not the case of the Management that the petitioner was not employed at all. On the other hand, it was their case that he was sporadically employed, as and when required.
20.However, it was the specific case of the petitioner that he was employed uninterruptedly. He discharged his burden initially by filing an interlocutory application in I.A.No.304 of 2002 seeking to produce the Attendance Registers and Wages Registers. But, the second respondent took a specious plea that they do not maintain the Attendance and Wage Registers for casual workmen. The same was recorded and the interim application in I.A.No.304 of 2002 in I.D.No.179 of 1997 seeking production of attendance and wage registers was disposed of. In the order, it was stated by the Labour Court that adverse inference could be taken, if it was established that the Management deliberately refused to produce those documents. No Management, that too a State undertaking, could plead that they do not maintain any Registers relating to number of days worked by a casual workman and the amount paid towards their wages, particularly, when it is a mandate of the Statutes viz., the Payment of Wages Act and the Motor Transport Workers Act to maintain attendance and wages registers. As per Rule 5 of the Tamil Nadu Payment of Wages Rules, 1937 and as per Section 35 of the Motor Transport Workers Act, 1961, the Management has to maintain those registers. When the Management did not produce the registers, the workman produced the chalans that were available with him. As per the chalans, the learned counsel appearing for the petitioner submitted a chart giving the number of days worked by the petitioner in every month between 15.11.1993 and 15.12.1996. The correctness of the chart was not disputed by the learned counsel for the second respondent. The details show that the petitioner was not employed during emergencies and on the other hand, he was continuously employed by the second respondent.
21.The judgments referred to above in para 12 of this judgment relied on by the learned counsel appearing for the petitioner in support of his contention that adverse inference has to be taken, when the Management deliberately failed to produce the documents that are available with them, squarely apply to this case. Since the documents are to be maintained statutorily and since those documents were not produced by the Management, I am of the view that the Labour Court ought to have drawn adverse inference in favour of the petitioner and should have held that the petitioner rendered uninterrupted service for 3 years from 15.11.1993 to 15.12.1996, till he was terminated.
22.Ex.M1 is the certified Standing Order of the second respondent Corporation. Clause 2 of the Standing Order gives classification of employees in the second respondent Corporation. There are 5 classifications. They are (1) Permanent (2) Probationers (3) Temporary (4) Casual and (5) Apprentice. Clause 2(a) of the Standing Order defines Permanent employee, as follows:
"2(a). Permanent Employee: is one who has been engaged on a permanent basis in work of a Permanent nature and whose appointment has been confirmed in the form prescribed and in writing by the Manager or other Officer of the company authorised to do so and includes an employee who has satisfactorily completed his probationery period and on such completion is approved and confirmed by the manager or other officer of the Company authorised to do so in writing to be a permanent Employee."
Clause 2(d) of the Standing Order defines Casual workman as follows:
"Casual Workman: is one who is employed for some unexpected or unforeseen work which is not likely to lost continuously."
23.The Labour Court, held that the petitioner admitted during his deposition that he was appointed by the Branch Manager and that he did not work for 240 days in the year 1993 and 1994 and that though he stated that he worked for more than 240 days in 1995, it was not continuous and therefore, the petitioner should be classified as a casual workman. The Labour Court also held that in the chalans in Ex.W4 series, it was not mentioned that the petitioner was a permanent workman and on the other hand, it was mentioned as C.L.R (Casual labour) and the petitioner also admitted that he was C.L.R. The Labour Court also recorded with approval the submissions made by the learned counsel appearing for the Management that the casual workmen are employed by the Branch Managers to meet the exigencies that arise due to excess leave by permanent workmen or to meet the heavy traffic during festivals and temple celebrations and that the petitioner was one among such casual workmen.
24.In my considered view, the Labour Court is not correct in classifying the petitioner as casual workman employed to meet the unforeseen or unexpected work. As per clause 2(d) of the Standing Orders, those who are employed for unexpected or unforeseen work, could not continue for a long time.
25.The learned counsel appearing for the petitioner has produced a chart giving the number of duties performed by the petitioner as per the available chalans in Ex.W4 series. The duties performed in 1995 alone is extracted herein. The correctness of the chart is not disputed by the learned counsel appearing for the Management.
"01.02.1995 to 28.02.1995 Duty 25 days 01.03.1995 to 31.03.1995 Duty 22 days 01.04.1995 to 30.04.1995 Duty 19 days 01.05.1995 to 31.05.1995 Duty 10 days 01.06.1995 to 30.06.1995 Duty 22 days 01.07.1995 to 31.07.1995 Duty 25 days 01.08.1995 to 31.08.1995 Duty 22 days 01.09.1995 to 30.09.1995 Duty 27 days 01.10.1995 to 31.10.1995 Duty 22 days 01.11.1995 to 30.11.1995 Duty 16 days 01.12.1995 to 15.12.1995 Duty 12 days"
The aforesaid statement shows that the petitioner has worked for 25 days out of 28 days in February 1995. Even a permanent workman could not work for 25 days out of 28 days, as he could avail weekly off. In March, June, August and October, he worked for 22 days and in July he worked for 25 days and in September he worked for 27 days out of 30 days. Even a permanent workman could not work for 27 days out of 30 days as he could avail weekly off. Thus, no prudent person could come to a conclusion that the petitioner was employed for unforeseen or unexpected work. There is no evidence produced by the second respondent that during February and September 1995, there were continuous festivals or other unforeseen situations warranting employment of 25 and 27 days respectively. This applies to the other months also, wherein he worked for more than 20 days in a month. The Labour Court relied on the submissions of the learned counsel appearing for the Management in the following words and came to the conclusion that the petitioner was a casual workman "vjph;kDjhuh; fw;wwpe;j tHf;fwp"h; jd;Dila thJiuapy;/ kDjhuhh;/ tpHhf; fhy';;fs; kw;Wk; vjph;kDjhuh; eph;thf epue;jug; gzpahsh; tpLg;gpy; bry;Yk;nghJ Vw;gLk; gzpfis bra;J Kof;fntz;o jw;brayhf mt;tg;nghJ Vw;gLk; mtruj; njitfisg; g{h;j;jp bra;J bfhz;L vjph;kDjhuh; eph;thf fpis nkyhsh; Kd;g[ ntiy ntz;o chpa Xl;Leh; chpkk;/ chpa KjYjtpr; rhd;W bgw;Wf; bfhz;l egh;fis Xl;Leh; kw;Wk; elj;Jdh; gzpf;F vLj;Jf; bfhs;Sk; tHf;fk; cz;L vd;Wk;/ rk;ge;jg;gl;l fpis nkyhsuhy; njitf;F Vw;wgo md;wd;iwf;F njitg;gLk; mstpy; gzpahsh;fis mkh;j;jp jpdf;Typ mog;gilapy; rk;gsk; tH';fp gzpia nkw;bfhs;Sk; tHf;fk; cz;L vd;Wk; nkw;brhd;d mtruj; njitf;fhf jpdf;Typ mog;gilapy; jw;fhypfkhf gzpakh;j;jk; bra;ag;gl;lth; ,k;kDtpy; kDjhuh; vd;Wk;................ "
26.In my considered view, the Labour Court was not correct in stating that the petitioner was employed to meet the emergencies, as there was absolutely no evidence to come to such a conclusion and thus, the classification of the petitioner as casual workman, is not correct.
27.Though the petitioner fits in the classification of permanent workman in view of the number of days worked continuously, his appointment should be confirmed in the form prescribed and should be in writing by the Manager, as per clause 2(a) of the Standing Order in order to classify him as permanent workman. In my view, though he was not confirmed in the form prescribed and in writing by Manager, his continuous employment could be classified as permanent workman. Otherwise, the action of the Management amounts to unfair labour practice under Section 25-T of the I.D. Act read with clause 5(10) of Fifth Schedule of I.D.Act. Section 25-T of the I.D.Act reads as follows:
"25-T. Prohibition of unfair labour practice.- No employer or workman or a trade union, whether registered under the Trade Unions Act, 1926 (18 of 1926) or not, shall commit any unfair labour practice."
Clause 5(10) of the Fifth Schedule of the I.D. Act reads as follows:
"5(10f).To employ workmen as "badlis", casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen."
In any event, he could not be classified as casual workman. Hence, I have no hesitation to hold that the decision of the Labour Court on the first issue is not correct and the same is set aside.
28.In fact, the petitioner could not be expected to establish by producing the chalans which were available with him. It was for the Management to produce the records to establish that the petitioner was employed only sporadically to meet the emergency. As I have held that adverse inference needs to be taken for non production of statutory registers and that therefore, the petitioner should be held to have rendered uninterrupted service, the classification of petitioner as a casual workman by Labour Court is not correct.
29.The next issue that arises for consideration is as to whether the Labour Court was correct in holding that the petitioner is not entitled to reinstatement with continuity of service and back wages. Section 2(oo) of I.D.Act defines retrenchment, which reads as follows:
"retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action does not include -
(a) Voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (bb) termination of the service of the workman as a result of the non-
renewal of the contract of employment between the employer and workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or)
(c) termination of the service of a workman on the ground of continued ill-health;
Section 25(B) of the I.D.Act defines continuous service and the same is extracted herein:
"25-B. 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 service which may be interrupted on account of sickness or authorised leave or on 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 calender 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 calender 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.
25(F) of the I.D.Act stipulates the conditions for valid retrenchment and the same is extracted hereunder:
"25-F. Conditions precedent to retrenchment of workmen. - No workman employed in any industry who has been in continuos service for not less than one year under an employer shall be retrenched by that employer until -
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen average pay for every completed year of continuous service or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette.
The matter relating to retrenchment is covered under Chapter V-A of the I.D. Act. Section 25 (J) of I.D.Act makes it clear that Chapter V-A of I.D.Act shall prevail over any other law, if there is any inconsistency. Section 25-J of I.D.Act is extracted hereunder:
"25-J Effect of laws inconsistent with this Chapter -
(1) The provisions of this Chapter shall have effect notwithstanding anything inconsistent therewith contained in any other law (incluuding standing orders made under the Industrial Employment (Standing Orders) Act. 1946.
Provided that where under the provisions of any other Act or rules, orders or notifications issued thereunder or under any standing orders or under any award, contract of service or otherwise, a workman is entitled to benefits in respect of any matter which are more favourable to him than those to which he would be entitled under this Act, the workman shall continue to be entitled to the more favourable benefits in respect of that matter, notwithstanding that he receives benefits in respect of other matters under this Act.
(2) For the removal of doubts, it is hereby declared that nothing contained in this Chapter shall be deemed to affect the provisions of any other law for the time being in force in any State insofar as that law provides for the settlement of industrial disputes, but the rights and liabilities of employers and workmen insofar as they relate to lay-off and retrenchment shall be determined in accordance with the provisions of this Chapter."
30.Since I have held that adverse inference should be taken, for not producing the attendance registers and wages registers, it has to be necessarily held that the petitioner has rendered 3 years uninterrupted service, when he was terminated from service from 15.12.1996. Hence, the matter is covered under Section 25-B(1) of the I.D. Act (refer supra). Admittedly, the mandatory conditions stipulated under Section 25-F of the I.D. Act are not complied with. Thus, the termination of the petitioner is illegal.
31.Even assuming that the petitioner did not render uninterrupted service, in my view, the petitioner has established that he rendered more than 240 days of service between 15.12.1993 and 15.12.1996 as per the chart prepared based on Ex.W4 series. Hence he rendered continuous service for a year as per Section 25 B (2)(a) of I.D.Act. The details of the number of working days in the said period as per the chart is given in Para 25 of this order. Along with the number of days mentioned in the chart, weekly off and National and Festival Holidays are to be added, as held by the Apex Court in 1985 (2) LLJ P 539 (Workman of Express International Banking Corporation Vs. The Management). The said judgment was followed by this Court in the order dated 10.04.2007 in W.P.No.25243 of 2003. Para 3 and 4 of the order in W.P.No.25243 of 2003 is extracted hereunder:
"3.Learned counsel for the petitioner submitted that from 13.05.1998 to 30.03.1999 the petitioner had worked for 278 days and therefore, the finding of the Labour Court was erroneous. In fact, before the Labour Court to prove his claim he had filed interim application in I.A.No.212 of 2002 seeking for the records to be produced. The 2nd respondent amde a statement that they will produce the available documents and the IA was closed. However, till the final hearing, the 2nd respondent did not produce any document and rest contended with their counter statement. Learned counsel stated that even assuming that the petitioner had worked for 236 days, the statutory holidays, viz., weekly off is counted under the Motor Vehicles Act. Therefore, in the light of the definition of continuity of service under section 25(B) even the statutory off must be taken into account. Relying upon the judgment of the Supreme Court in 1985 (2) LLJ Page 539 (Workmen of Express International Banking Corporation Vs. The Management), learned counsel for the petitioner submitted that if four days are added, the petitioner will be completing 240 days and further he stated the corporation did not produce any documents to prove that the petitioner had not worked for 240 days and in the light of the interim application filed by the workmen, he stated that the finding of the labour court that the contract spread over for a period of twelve calender months is erroneous. In similar circumstances, an award was reversed by the Supreme Court in its judgment reported in 1981 (1) LLJ 386 (Surendra Kumar and others Vs. Central Government Industrial Tribunal, New Delhi). IN the light of the same, the award must be set aside.
4.The finding that the contract should be spread over 12 calender months to qualify for the protection under Section 25F is erroneous, in the light of the Supreme Court cases cited above. When the petitioner had worked for 240 days, the finding of the Labour Court is erroneous and clearly unsustainable. With reference to the statement that the workmen had not worked, thereby has not complied with the requirement would not apply to the case on hand. The same is referred to in the interim application filed by the workmen. The workmen had given the details of the number of days worked and he has claimed that he has worked for 236 days. Further the learned counsel for the 2nd respondent states the duty cannot be equated to a day and therefore, no presumption can be made even by taking into account the statutory off and the employee should be given protection under Section 25(F) of I.D.Act. Ultimately, the respondent has not complied with Section 25(F)(a) and (b) and therefore, the termination of the petitioner or non-engagement of the petitioner beyond 240 days is void abinitio and the order of non-employment is totally illegal."
32.But the learned counsel for the Management submitted that unless the workman rendered service for more than 240 days for 12 months preceding the date of termination, Section 25(B)(2)(a) read with 25(F) of I.D.Act, could not be attracted and the service rendered by the workman, prior to one year could not be taken into account to decide, as to whether 25(F) of the Act was complied with or not.
33.The learned counsel for the Management relied on the decision of the Supreme Court reported in 2003(4) CTC 425 SC (Uttar Pradesh Drugs and Pharmaceuticals Company Limited Vs. Ramanuj Yadav and others) and in 2008(2) LLN 654 SC (Sita Ram and others Vs. Moti Lal Nehru Farmers Training Institute).
34.I have gone through those decisions. Those decisions far from supporting the submissions of the learned counsel for the Management, supports the view, which I had taken. Suppose, the view that is canvassed by the counsel for Management is accepted, the workman, who had rendered only one year of service and had completed 240 days of service within 12 months preceding the date of termination, he would get protection under Section 25(B) (2) (a) of the I.D. Act read with Section 25-F of the Act and on the other hand, the workman, who have rendered even 20 years of service and also more than 240 days in all the years except in the last year of termination, he would not get the protection under Section 25 (F) of the I.D. Act. This would lead to absurdity. This could not have been the intention of the Legislature.
35.The following passage from the judgment reported in 2003(4) LLN 425 SC (Uttar Pradesh Drugs and Pharmaceuticals Company Limited Vs. Ramanuj Yadav and others) relied on by the counsel for the Management is extracted hereunder:
"The decision in the case on Mohan Lal does not lay down that if a workman had worked for more than 240 days in any number of years and if during the year of his termination, he had worked for the said number of days, he would not be entitled to the benefit of S.25 B. The question with which we are concerned was not under consideration in Mohan Lal case. If the view-point propounded by the management is accepted, then in every year the workman would be required to complete more than 240 days. If in any one year the employer gives him actual work for less than 240 days, the service of the workman can be terminated without compliance of S.6N of the UP Act, despite his having worked for number of years and for more than 240 days in each year except the last. Such an intention cannot be attributed to the UP Act."
36.From the above decision, the Apex Court makes it clear that Section 25-B(2)(a) of the I.D.Act protects the workman who rendered more than 240 days of service in any of the years preceding the 12 months from the date of the termination but failed to render 240 days of service in the last 12 months preceding the date of termination.
37.I have therefore no hesitation to hold that the termination of the petitioner is illegal and void abinitio. The award of the Labour Court holding otherwise is erroneous and is liable to be set aside.
38.The learned counsel appearing for the second respondent relied on the decisions of the Apex Court reported in 2006 (3) LNN 78 (SC) (Secretary, State of Karnataka and others) and 2006 (3) LLJ 1055 SC (Accounts Officer (A & I) A.P.SRTC and others) and submitted that since the petitioner was appointed irregularly, he is not entitled to any relief.
39.In my view, all those cases did not arise under the I.D. Act. Furthermore, the termination of service was not an issue. The persons, who were appointed beyond the cadre strength and without qualification, sought for regularisation and the same was declined by the Supreme Court in those cases. But, in this case, the petitioner possessed the required qualification and it is not the case of Management that he was appointed in excess beyond the cadre strength. In those judgments, the employees are governed by the rules framed under Article 309 of the Constitution of India and the employees appointed contrary to the statutory rules, sought regularisation and the same was declined. Those judgments would not be applicable to the facts of this case, particularly since the regularisation is not an issue in this case and the issue is as to the validity of termination in violation of Section 25-F of the I.D.Act.
40.At this juncture, it is relevant to take note of the phrase "for any reason whatsoever" appearing in Section 2(oo) of the I.D.Act that was interpreted by the Constitution Bench of the Apex Court in Punjab Land Development and Reclamation Bank Vs. Labour Court, Chandigarh and Others reported in 1990 (3) SCC 682 that termination of irregular appointment would also come in this category. The Constitution Bench considered a batch of appeals. In those cases, appointments were made by an authority, who was not competent to appoint the workman and the workman was sought to be terminated, the Constitution Bench held that the termination amounts to retrenchment and non compliance of 25(F) of I.D. Act would render the termination "void abinitio". Para 82 aforesaid judgment is extracted herein in this regard.
"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."
41.The Constitution Bench judgment was later referred to by another three Judges Bench of the Apex Court in D.K.Yadav VS. J.M.A. Industries Ltd. reported in 1993 (3) SCC 259. Para 4 of the said judgment is extracted hereunder:
"4.In Punjab Land Development and Reclamation Corpn. Ltd. v. Presiding Officer, Labour Court1 the Constitution Bench considered the scope of the word 'retrenchment' defined by Section 2(oo) and held in para 71 at page 716 that "analysing the definition of retrenchment in Section 2(oo) we find that termination by the employer of the service of a workman would not otherwise have covered the cases excluded in clauses (a) and (b) namely, voluntary retirement and retirement on reaching the stipulated age of retirement or on the grounds of continued ill health. There would be no violational element of the employer. Their express exclusion implies that those would otherwise have been included".
In para 77 at page 719 it was further held that right of the employer and the contract of employment has been effected by introducing Section 2(oo). The contention of the management to terminate the service of an employee under the certified standing orders and under the contracts of employment was negatived holding that the right of the management has been affected by introduction of Section 2(oo) and Section 25-F of the Act. The second view was that the right as such has not been affected or taken away, but only an additional social obligation has been imposed on the employer to abide by the mandate of Section 25-F of the Act to tide over the financial difficulty which subserves the social policy. This Court relied on the maxim - Stat pro ratione valuntas populi; the will of the people stands in place of a reason. In paragraph 82 at page 722 this Court concluded that the definition in Section 2(oo) of the Act of retrenchment means "the termination by the employer of the service of a workman for any reason whatsoever except those expressly excluded in the section". Same view was taken by three Benches of three Judges of this Court in State Bank of India v. Shri N. Sundara Money2; Delhi Cloth & General Mills Ltd. v. Shambhu Nath Mukherjee3 and Hindustan Steel Ltd. v. Presiding Officer, Labour Court4 and two Benches of two judges in L. Robert D'Souza v. Executive Engineer, Southern Railway5 and H.D. Singh v. Reserve Bank of India6 took the same view. Therefore, we find force in the contention of Shri R.K. Jain, the learned senior counsel for the appellant that the definition 'retrenchment' in Section 2(oo) is a comprehensive one intended to cover any action of the management to put an end to the employment of an employee for any reason whatsoever. We need not, however, rest our conclusion on this point as in our considered view it could be decided on the other contention raised by Shri Jain that the order is violative of the principles of natural justice. We are impressed with that argument. Before dealing with it, it is necessary to dispose of interrelated contentions raised by Dr Anand Prakash."
42.In 1996 (1) LLN 647 (Srirangam Co-operative Urban Bank Ltd., Srirangam Vs. Labour Court, Madurai and another), the First Bench of this Court, referred to the decision of the Apex Court in Santosh Gupta Vs. State Bank of Patiala reported in 1980 (3) SCC 340, wherein the Honourable Apex Court held that termination for having not qualified in the examination would amount to retrenchment as per Section 2(oo) of I.D. Act and as Section 25(F) of the I.D. Act was not complied with, the termination was set aside and held that irrespective of the nature of employment, the workman is entitled to protection under Section 25-F of the I.D. Act. In this regard, the relevant passage from para 12 of the judgment in 1996 (1) LLN 647 is extracted hereunder:
"12.Thus it is clear from aforesaid decisions and more specially the two decisions of the Supreme Court referred to above that the nature of employment, viz., whether legally made or not or on irregular appointment or an appointment by a person not competent to appoint, would not be a ground to refuse to follow the provisions contained in S.25F of the Act...."
43.The other submissions of the learned counsel for the second respondent is that even if the termination is illegal for non compliance of Section 25(F) of I.D. Act, no reinstatement could be given to the petitioner and he relied on the decisions that are referred to in paras 14 and 15 of this order.
44.Those decisions could not be applied to the facts of this case. On the other hand, the Constitution Bench decision reported in 1990 (3) SCC 682 makes it clear that normally, the relief of reinstatement, continuity of service with backwages, would follow if Section 25(F) of I.D.Act was not complied with. Thus, the judgments relied on by the counsel for the 2nd respondent do not apply to the facts of this case.
45.Therefore, the award dated 07.11.2002 passed in I.D.No.179 of 1997 by the first respondent Labour Court is quashed and the writ petition is allowed. The second respondent is respondent to reinstate the petitioner with continuity of service and back wages forthwith. No costs.
arul / TK To
1.The Presiding Officer, Labour Court, Tirunelveli.
2.The Management Tamil Nadu State Transport Corporation Madurai Division, Tirunelveli.