Jharkhand High Court
Minaral Area Development Authority vs The Presiding Officer, Labour Court And ... on 23 March, 2006
Equivalent citations: [2006(2)JCR390(JHR)]
Author: S.J. Mukhopadhaya
Bench: S.J. Mukhopadhaya
JUDGMENT S.J. Mukhopadhaya, J.
Page 721
1. This writ petition has been preferred by the Mineral Area Development Authority, Dhanbad (hereinafter to be referred as 'M.A.D.A.') against the Award dated 27th December, 1999, passed by the learned Presiding Officer, Labour Court, Dhanbad, pronounced on 17th October, 2000, in Reference Case No. 6 of 1996, whereby, the concerned workmen/respondent Nos. 2 to 13 have been reinstated with full back wages and other consequential benefits.
During pendency of the writ petition, respondent No. 13 having died, his heir has already been substituted in his place vide order dated 22nd February, 2006.
2. The following plea have been taken by the petitioner to assail the judgment/award:
(i) The workmen having not completed 240 days of continuous service, were not entitled to any benefit under Section 25F of the Industrial Disputes Act, 1947;
(ii) The services of the respondents having been terminated on the ground of illegal appointments, no discrimination can be alleged on the ground of retention of junior workmen in service;
(iii) Except respondent Nos. 2 and 7, the decision rendered by the High Court in regard to the termination, in question, being binding between the parties i.e. rest of respondent Nos. 3 to 6 and 8 to 13, determination of the same issue i.e. the question of legality and propriety of the order of termination was barred by the principle of res judicata; and
(iv) The reference having been made after long delay i.e. after more than fifteen years, the respondents should not have been reinstated with full back wages.
3. Learned Counsel for the contesting respondent Nos. 2 to 13, in support of the Award, made the following submissions:
(i) The order of termination was violative of Section 25G of the Industrial Disputes Act, 1947, the principle of "first come last go" having not been followed;
(ii) Performance of 240 days of continuous service is not necessary to give the benefit under Section 25G of the Industrial Disputes Act, 1947; and
(iii) Even the observations, made by the Ranchi Bench of Patna High Court in the case of Dipak Kumar Jaiswal and Ors. v. The Jharia Mines Board C.W.J.C No. 158 of 1984(R), have not been followed.
Page 722
4. Counsel for the contesting respondents also relied on the following decisions of the Supreme Court:
(a) Swadesamitran Ltd. v. Their Workmen , and The Workman of in S.T. Estate v. S.T. Estate , in support of the submission that the rule of "last come first go" should be followed and non-compliance with Section 25G also renders the retrenchment invalid.
(b) Central Bank of India v. S. Satyam reported in 1996 L.I.C. 224 (SC) to suggest that principle of continuous service of 240 days is not required to be seen for granting the benefits under Section 25H or Section 25G of the Industrial Disputes Act, 1947.
Reliance was also placed on other decisions of the Supreme Court, including the case of Management of M.C.D. v. Prem Chand Gupta to show that the termination on the ground of illegal appointment also amounts to retrenchment, as defined under Section 2(oo) of the I.D. Act, 1947, and the provisions of Section 25G are required to be followed.
5. From the pleadings, made by the parties; impugned Award and the enclosures, attached with the writ petition and other affidavits, the following fact emerges:
Twelve workmen, respondent Nos. 2 to 13, were engaged in the year, 1983 to perform the duties, as detailed against their names, and their services were terminated in January, 1984, as mentioned hereunder:
________________________________________________________________________ |Name of the | Designation |Date of|Date of | Date of | |workman | |appointment |joining | termination | |______________|_____________|_____________|_______________|_____________| |Suryakant | Mate |6.10.83 |10.10.83 |25.1.84 | |Mandal | | | | | |______________|_____________|_____________|_______________|_____________| |Madho Prasad |Mate |25.11.83 |1.12.83 |7.1.84 | |Sharma | | | | | |______________|_____________|_____________|_______________|_____________| |Zaffrulla Khan|Mate |19.12.83 |21.12.83 |7.1.84 | |Afgani | | | | | |______________|_____________|_____________|_______________|_____________| |Saukat Ali |Sanitary |25.11.83 |1.12.83 |7.1.84 | |Khan |Supervisor | | | | |______________|_____________|_____________|_______________|_____________| |Jay Shankar |Sanitary |25.11.83 |1.12.83 |7.1.84 | |Thakur |Supervisor | | | | |______________|_____________|_____________|_______________|_____________| |Rakeshwary |Assistant |19.12.83 |20.12.83 |7.1.84 | |Pd. Sinha | | | | | |______________|_____________|_____________|_______________|_____________| |Lalan Kumar |Assistant |19.12.83 |20.12.83 |7.1.84 | |Singh | | | | | |______________|_____________|_____________|_______________|_____________| |Sahadat Ansari|Health |29.11.83 |30.11.83 |7.1.84 | | |Supervisor | | | | |______________|_____________|_____________|_______________|_____________| Page 723 ________________________________________________________________________ |Manjoor Alam |Khalasi |14.12.83 |15.12.83 |7.1.84 | |______________|_____________|_____________|_______________|_____________| |Biswanath |Sodhak |24.11.83 |1.12.83 |7.1.84 | |Mahto | | | | | |______________|_____________|_____________|_______________|_____________| |Kudus ansari |Sodhak |13.12.83 |14.12.83 |7.1.84 | |______________|_____________|_____________|_______________|_____________| |Dinesh Kr. |Sodhak |24.11.83 |25.11.83 |7.1.84 | |Mandal | | | | | |______________|_____________|_____________|_______________|_____________| The aforesaid statement has been taken from the written statement, as was filed on behalf of the workmen, enclosed as Annexure-D to the writ petition.
6. Admittedly, respondent Nos. 2 to 13 were in the services of the M.A.D.A. for about 18 to 75 days approximately. Their services were terminated on the ground of illegal appointment.
7. From the impugned Award dated 27th December, 1999/17th October, 2000, it will be evident that the Management of Mineral Area Development Authority, Dhanbad, took specific plea that respondent Nos. 2 to 13 were not appointed against any sanctioned post rather they were appointed illegally without following the procedure of appointment. Neither the names were called for from the Employment Exchange nor any advertisement was published. This fact was not disputed by respondent Nos. 2 to 13 nor the learned Presiding Officer has determined the question whether such appointments, in absence of any post, was ab initio void or not.
8. The appointment, if made without following the procedure, may be irregular and in certain cases, it may be illegal. If it is irregular appointment, that may be regularized by following the procedure or by efflux of time. But if an appointment is illegal, it can not be legalized rather for terminating the services on such ground, the procedure laid down under Section 25F is to be followed, as such termination falls within the definition of retrenchment. There are appointments, which may be ab initio void. For example : any appointment, made against no vacancy or any appointment made by any authority, not competent to appoint, is ab initio void. The question arises as to whether for terminating the services of such workman, whose appointment is ab initio void, the procedure of Section 25G is required to be followed. Section 25G prescribes the procedure for retrenchment, as quoted hereunder:
25G. Procedure for retrenchment.- Where any workman in an industrial establishment, who is a citizen of India, is to be retrenched and he belongs to a particular category of workmen in that establishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman, who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman.
9. From the aforesaid provisions, it will be evident that the employer is ordinarily liable to retrench the last person, so employed, i.e. to follow the principle of "last come first go". For the reasoned, to be recorded in writing, it is always open to the employer to retrench a senior. In the case of Swadesmitran Ltd. (supra), the Supreme Court having noticed the provisions of Section 25G, held that the Management has right to retrench the workman, provided retrenchment is justified. In effecting retrenchment, the Management normally has to adopt and give effect to the Industrial Rule of retrenchment "last come first go". For valid reasons, it may depart from the Page 724 said rule. If the departure from the said Rule is not valid or not satisfactory, then only the action of the Management in so departing from the rule, can be treated as being malafide or is amounting to unfair labour practice. That means the departure from the rule of "last come first go" is permissible on valid and satisfactory ground.
10. In the present case, it has not been disputed that the employer-Management of Mineral Area Development Authority, Dhanbad, terminated the services of respondent Nos. 2 to 13 on the ground of illegal appointment, they having been appointed against no vacancy, without following the procedure, in violation of Articles 14 and 16 of the Constitution of India. Such reason having been recorded by the employer, while order of termination was issued, it was not necessary for the employer-Management of Mineral Area Development Authority, Dhanbad, to follow the principle of "last come first go".
11. The ground, as taken by respondent Nos. 2 to 13, was also noticed by the learned Presiding Officer, Labour Court, Dhanbad, while answering the reference in favour of the workmen, that persons, similarly appointed, including Aswanidhar Kumar Dubey, Shashi Bhushan Singh, Ravi Bhushan, Ved Sen etc., have been retained in service and thereby the workmen (respondent Nos. 2 to 13) were discriminated. Such argument can not be accepted as no person can claim equality on the basis of some Illegal action on the part of one or other authority. If one or other person has been illegally appointed, whose appointments are also ab initio void and have been retained in service, one may request for termination of their services but that cannot be a ground for their reinstatement or re-employment. Nobody has right to claim equality on the ground that illegal benefits have been given to others. Therefore, the workmen (respondent Nos. 2 to 13) were not entitled to claim any benefit on the ground that other illegal appointees were retained in service.
12. It has not been disputed by respondent Nos. 3 to 6 and 8 to 13 that they challenged their order of termination, issued in January, 1984 before Ranchi Bench of Patna High Court in C.W.J.C. No. 158 of 1984(R). The Division Bench by judgment dated 4th April, 1984 while noticed the submission that similar irregular appointees, made by the Chairman, have been retained and the statement given that their services shall be terminated, refused to interfere with the order of termination, the appointments having been made illegally. While the writ petition was dismissed, the only liberty was given to the Mineral Area Development Authority to scrutinize the grievances of individual employee and if the Mineral Area Development Authority was satisfied that some of the appointments have been made in a regular manner, then to review such cases.
13. It is not the case of respondent Nos. 2 to 13 that they were appointed after following the procedure of appointment against sanction vacant posts and thereby their cases should have been reviewed. This aspect has not been dealt with by the Presiding Officer, Labour Court, Dhanbad.
14. The High Court having affirmed the order of termination, in question, and the judgment being binding between the parties i.e. respondent Nos. 3 to 6, 8 to 13 and the Mineral Area Development Authority, there was no occasion to reopen the question by the workmen on one of the grounds that in a similar Reference Case No. 13 of 1989, by Award dated 28th February, 1994, the Management was directed to reinstate those workmen with full back wages and other consequential benefits and thereby granted the benefits in favour of respondent Nos. 2 to 13 herein in the light of the said Reference. Page 725 But he failed to notice that the aforesaid Award dated 28th February, 1994 passed in Reference Case No. 13 of 1989, was challenged by the Mineral Area Development Authority in CWJC No. 2381 of 1994, wherein, the learned Single Judge by judgment dated 9th September, 2002 having noticed the relevant facts, set aside the Award dated 28th February,1994, passed in Reference Case No. 13 of 1989. The order of the learned Single Judge was affirmed by a Division Bench of this Court by order dated 31st January, 2003, passed in L.P.A. No. 45 of 2003, having noticed that the initial appointment of the workman was not proper, which was also affirmed by the Division Bench of this Court in Civil Review No. 33 of 2003 and thereby the order of termination reached finality. Thus, there was no occasion for the Presiding Officer to give benefit in favour of the present workmen/respondent Nos. 2 to 13 on the basis of so called Award, which was declared illegal and was set aside by the High Court.
15. For the reasons aforesaid, there being no other option, the impugned Award dated 27th December, 1999, passed by the Presiding Officer, Labour Court, Dhanbad, in Reference Case No. 6 of 1996, as pronounced on 17th August, 2000, is hereby set aside and the writ petition is, thus, allowed. However, in the facts and circumstances, there shall be no order as to costs.