Punjab-Haryana High Court
Director vs Suresh Kumar And Another on 9 May, 2014
Author: Amol Rattan Singh
Bench: Amol Rattan Singh
CWP No.19429 of 2003 (O&M) -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
CWP No.19429 of 2003(O&M)
Date of Decision: 09.05.2014
Director, Primary Education, Haryana
...Petitioner
Versus
Suresh Kumar and another
...Respondents
CORAM: HON'BLE MR. JUSTICE AMOL RATTAN SINGH
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
Present:- Mr. Rahul Sharma, Addl. Advocate General, Haryana
for respondent No.1.
Mr. R.K. Malik, Senior Advocate with
Mr. Mohan Singh, Advocate
for respondent No.1
***
Amol Rattan Singh, J.
1. This petition filed by the Director, Primary Education, Haryana, assails the award of the Labour Court, U.T., Chandigarh, dated 18.12.2002, by which the claim of the respondent-workman for re- instatement in service, was allowed along with continuity of such service. 50% back-wages were also awarded, from the date of issuance of the demand notice.
2. The facts of the case, as given in the petition, are that the respondent-workman, Suresh Kumar, was appointed as an Electrician for a period of 89 days on 03.01.1997 and was to be paid wages as prescribed by the Deputy Commissioner, Chandigarh, from time to time. The appointment letter (Annexure P-1 with the petition) shows the appointment to be contractual, with the respondents' services liable to be Sorot Gaurav 2014.05.13 11:03 I attest to the accuracy and integrity of this document CWP No.19429 of 2003 (O&M) -2- terminated at any time without notice. The appointment letter is reproduced below:-
"Office of the Director of Primary Education Haryana, Chandigarh.
Order No.21/6/94 Admn CT Dated, Chd., the 03.01.1997 Sh. Suresh Kumar son of Shri Nand Lal, H.No.2830, Sector- 15, Panchkula is hereby appointed as Electrician on contract basis for the period of 89 days w.e.f. 03.01.1997. He will be paid wages as prescribed by Deputy Commissioner, Chandigarh from time to time. His services are liable to be terminated at any time without any notice.
The charge is debitable to the Head "2202-General Education- 01-Elementary Education-Direction and Administration (N.P).
sd/-
D.S. Sahrawat Administrative Officer, O/O Director Primary Education, Haryana, Chandigarh.
Endst. No.Even Dated, Chandigarh, the 3.1.1997 A copy is forwarded to the following for information and necessary action:-
1. Sh. Suresh Kumar s/o Shri Nand Lal, H.No.2830 Sector-15, Panchkula.
2. Care Taker.
sd/-
Superintendent, Admn. Pry.
For Director Primary Education, Haryana, Chandigarh."
3. As per the petition, the appointment on contract basis was renewed from time to time, each time for 89 days, with notional breaks in between, till his services were finally terminated in May/June 1998. Though the respondent-workmans' claim was that he continued working till 12.06.1998, after which he was refused work without assigning any reason, however, the stand of the petitioner department, before the Labour Court and in the present petition, was that he worked up till 31.05.1998. However, in reply to the Review Application filed by the respondent-workman (details given hereinafter), it was admitted that his services were terminated on 12.06.1998.
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4. Before proceeding further with the main issue, it is necessary to state at this stage, that the petition had been admitted to regular hearing by a Division Bench, on the date of its first motion hearing on 15.12.2003, with the following order:-
"Present:- Mr. Jaswant Singh, Sr. DAG, Haryana This writ petition is directed against the award of the Labour Court dated 18.12.2002 whereby the termination of the respondents-workmen has been held to be illegal for want of compliance of mandatory provisions of Section 25-F of the Industrial Disputes Act, 1947.
Learned counsel for the petitioner has not been able to controvert the finding of fact recorded by the Labour Court that the workman had worked for more than 240 days in the 12 months preceding the date of his termination. However, a legal question has been raised about the maintainability of the reference. According to the learned counsel, the reference has been made by the Central Govt. whereas as per Section 2(a)(ii) of the Industrial Disputes Act, 1947, it could be made by the State Government only.
Since the plea raised is on purely technical, (sic) the writ petition is admitted. However, there shall be no stay.
Sd/-
(N.K. Sud) Judge sd/-
(J.S. Narang) Judge"
5. The SLP filed by the State of Haryana, against the above order dated 15.12.2003, was dismissed on 22.11.2004.
Since there was no stay granted by the Division Bench on the Award of the Labour Court, respondent No.1 was reinstated in service on 21.07.2005, as an Electrician, in consequence of the said Award.
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6. Thereafter, the matter came up for hearing before a Division Bench on 19.12.2007, on which date the petition of the State(Department of Education) was allowed, primarily on the ground that since the respondents' appointment was not as per rules and regulations and also falls within the ambit of sub-clause (bb) of Clause (oo) of Section 2 of the Industrial Disputes Act, 1947 (henceforth to be referred to as "the Act"), his termination would not amount to retrenchment. The judgment of the Supreme Court in Municipal Council, Samrala, Vs. Raj Kumar (2006) 3 SCC 81, was relied upon by the Division Bench.
The judgments in Gangadhar Pillai V. Siemens Limited (2007) 1 SCC 533, Indian Drugs & Pharmaceuticals Ltd. V. Workmen (2007) 1 SCC 408, Reserve Bank of India Vs. Gopinath Sharma and another (2006) 6 SCC 221 and U.P. Power Corporation Ltd. and another Vs. Bijli Mazdoor Sangh and others (2007) 5 SCC 755, were also relied upon, to hold that reinstatement of a workman in public employment, would not be consistent with Article 14 unless such workman had been appointed by following rules and regulations.
7. This judgment was passed in the presence of the State counsel appearing for the petitioner-department, but without any counsel for the respondent-workman being present.
8. Consequently, Review Application-CW 41 of 2010 was filed on behalf of the respondent-workman, seeking therein review of the judgment and order dated 19.12.2007, primarily on the ground that the workman had not been served with any notice of the petition, in all Sorot Gaurav 2014.05.13 11:03 I attest to the accuracy and integrity of this document CWP No.19429 of 2003 (O&M) -5- the seven years that it remained pending in this Court after its admission.
The review application was allowed by a Division Bench on 25.11.2011, the judgment dated 19.12.2007 was recalled and the writ petition restored to its original number.
In view of the review application having been allowed and the order having been recalled, it came up for hearing as per Roster before a coordinate Bench and then before this Court.
An application seeking stay of the judgment that was sought to be reviewed was also filed but no interim order seems to have been passed in the said stay application, consequent upon which the workman continued to remain out of service, his services having been dispensed with on 28.05.2010, after the writ petition was allowed vide judgment dated 19.12.2007.
9. An application under Section 17B of the Act was also filed on 01.04.2012, which was ordered by this Court to be heard along with the main petition, vide order dated 13.02.2013.
Thus the civil writ petition itself, as also the application for grant of wages in terms of Section 17B of the Act, are to be adjudicated upon now by this Court.
Coming 1st to the main petition.
10. The issue obviously is as to whether the first respondent was entitled to re-instatement as ordered by the Labour Court, along with continuity of service and 50% backwages, in view of the fact that his appointment on each occasion was for 89 days, vide different Sorot Gaurav 2014.05.13 11:03 I attest to the accuracy and integrity of this document CWP No.19429 of 2003 (O&M) -6- appointment letters specifically stating that he was appointed for the said period, on contract basis. Therefore, in view of the specific stipulation in the appointment letters, to the effect that each appointment was on contract basis, would the exception carved out in sub-clause (bb) of clause (oo) to Section 2 of the Act, be invocable in favour of the petitioner-management (State) or not, is the question.
First, to reproduce the provision itself:-
Section 2 Definition- In this Act, unless there is anything repugnant in the subject or context,-
xxxx xxxx xxxx (oo) "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include-
xxx xxxx xxx (bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or xxx xxxx xxx
11. There are two sets of judgments on the issue.
One school of thought is that the stipulation in a series of appointment letters, that each appointment is for a period of 89 days and on contract basis, amounts to a malpractice only to deprive a workman of the benefits of Section 25F of the Act and as such, any termination without compliance of the provisions of Section 25F would actually amount to retrenchment, if a period of 240 days has been completed by Sorot Gaurav the workman in the 12 months preceding his termination. 2014.05.13 11:03 I attest to the accuracy and integrity of this document CWP No.19429 of 2003 (O&M) -7-
In the judgments which have thus held in favour of the workman, the issue of non-existence of a post to which a workman could have been appointed has also not held much water, with the Court holding essentially that absence of a permanent post would not water down the effect of Section 25F of the Act and in case the termination has been made without following the provisions thereof, then reinstatement and continuity of service, along with back-wages, must follow. Of course, back-wages, in different judgments, have been held to be curtailable up to 50% (and beyond), on the ground that during the interregnum it must be presumed that a workman would have worked somewhere or the other and received some remuneration to keep body and soul together.
12. The other set of judgments holds that firstly, each appointment being on contract basis, cannot give the workman an indefeasible right to continue in service or to reinstatement, each contract falling within the ambit of sub-clause (bb) of clause (oo) of Section 2 of the Act. Consequently, the obvious conclusion as per this line of thinking would be that the contract having come to an end, the management would not be in violation of the provisions of Section 25F (or Section 25N as the case may be) and as such, the question of reinstatement or any backwages would not arise.
13. Before examining as to which of the two sets of judgments would apply to the case of the first respondent, the judgments themselves need to be referred to.
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14. Coming first to the judgments which would be cited on behalf of the petitioner-department, to the effect that where the appointment is for a specific period, it would come within the rigour of Section 2(oo) (bb) of the Act and as such it would not amount to retrenchment.
15. In Kishore Chandra Samal Vs. Divisional Manager, Orissa State Cashew Development Corporation Ltd., 2006 AIR (SC) 3613, after discussing the judgments in Morinda Coop. Sugar Mills Ltd. V. Ram Kishan and others, (1995) 5 SCC 653, S.M. Nilajkar and others Vs. Telecom District Manager, Karnataka, (2003) 4 SCC 27 and Anil Bapurao Kanase Vs. Krishna Sahakari Sakhar Karkhana Ltd. and another, (1997) 10 SCC 599, the two Judge Division Bench of the Supreme Court held as under:
"10. The decision in S.M. Nilajkar's case (supra) has no application because in that case no period was indicated and only indication was the temporary nature of engagement. In the instant case in all the orders of engagement, specific periods have been mentioned. Therefore, the High Court's does not suffer from any infirmity."
(emphasis supplied)
16. In Municipal Council, Samrala Vs. Raj Kumar, (2006) 3 SCC 81, while dealing with the provision, (Section 2(oo) (bb) of the Act), it was noticed as under:
7. Before the High Court as also before us, the appellant contended that having regard to the provisions contained in Section 2(oo) (bb) of the Industrial Disputes Act, the respondent having been appointed for a fixed period on contract basis, Section 25-F of the Act will have no application in the facts and circumstances of the case....."
Again it was observed as under:
"10. Clause (oo) (bb) of Section 2 contains an exception. It is in Sorot Gaurav two parts. The first part contemplates termination of service of the 2014.05.13 11:03 I attest to the accuracy and integrity of this document CWP No.19429 of 2003 (O&M) -9- workman as a result of the non-renewal of the contract of employment or on its expiry; whereas the second part postulates termination of such contract of employment in terms of stipulation contained in that behalf. The learned Presiding Officer of the Labour Court as also the High Court arrived at their respective findings upon taking into consideration the first part of Section 2 (oo) (bb) and not the second part thereof......."
Thereafter, while discussing S.M. Nilajkar' case (supra), their Lordships held as under:
14. The decision of this Court is not an authority for the proposition that apart from a project or a scheme of temporary duration, Section 2(oo) (bb) of the Industrial Disputes Act will have no application. Furthermore, in the instant case, as has been noticed by this Court in S.M. Nilajkar itself, the respondent was categorically informed that as per the terms of the contract, the same was a short-
lived one and would be liable to termination as and when the appellant though it fit or proper or necessary to do so. Yet again, this Court in view of the facts and circumstances prevailing therein had no occasion to consider the second part of Section 2(oo) (bb) of the said Act.
15. There is neither any doubt nor any dispute that the terms and conditions contained in the offer of appointment on both the spells were the same. So far as the employment of a person in a Municipal Council which is "State" in the meaning of Article 12 is concerned, the same must be done in terms of the provisions of the statue and/or rules framed thereunder. The respondent therefore was not appointed on a permanent or a temporary basis. It is not the case of the respondent that while making an offer of appointment, the Municipal Council had complied with the requirements laid down in the statute or statutory rules or even otherwise the same was in conformity with Articles 14 and 16 of the Constitution.
16. For the reasons aforementioned we are of the opinion that the instant case is covered by the second part of Section 2(oo) (bb) of the said Act."
17. On the other hand, it would be contended on behalf of the respondent-workman that the decisions of the Supreme Court to the Sorot Gaurav 2014.05.13 11:03 I attest to the accuracy and integrity of this document CWP No.19429 of 2003 (O&M) -10- effect that the aims and objects of the Act with regard to the protection of interest of the workman would prevail and as such, the Labour Court Award in the present case deserves to be sustained.
18. The first judgment relied upon by Mr. Malik, learned Senior counsel appearing for the respondent-workman, is the case of Anoop Sharma Vs. Executive Engineer Public Health Division No.1, Panipat (Haryana), (2010) 3 SCC 497. That is also a case decided by a Division Bench of two Hon'ble Judges of the Supreme Court. The workman had been engaged as a casual labourer in December 1995. His services were dispensed with on 25.04.1998 due to a financial crunch being experienced by the Government. The Labour Court having reinstated the workman with full backwages, the Award, upon challenge, was set aside by a Division Bench of this Court, holding that:
".....in view of the nature of appointment of respondent No.1, he cannot be ordered to be reinstated. The respondent has not shown before the Labour Court or before this Court that he had been appointed on a sanctioned post in consonance with the provisions of Articles 14 and 16 of the Constitution of India. It has further not been shown that the entry in service of the respondent was legal and in accordance with the statutory provisions and rules framed thereunder. A person who has taken entry illegally by the back door cannot be permitted to be reinstated in view of the law laid down by the Hon'ble Supreme Court in recent judgments."
This Court, as noted in the judgment of the Hon'ble Supreme Court, had relied upon the following judgments to arrive at that conclusion:
"Himanshu Kumar Vidyarthi V. State of Bihar AIR 1997 SC 3657, Municipal Council, Samrala V. Raj Kumar (2006) 3 SCC Sorot Gaurav 81, Reserve Bank of India V. Gopinath Sharma (2006) 6 SCC 221, 2014.05.13 11:03 I attest to the accuracy and integrity of this document CWP No.19429 of 2003 (O&M) -11- Secretary, State of Karnataka V. Uma Devi (2006) 4 SCC 1, U.P. Power Corporation Ltd. V. Bijli Mazdoor Sangh (2007) 5 SCC 755 and Haryana Urban Development Authority V. Om Pal (2007) 5 SCC 745.
Setting aside the judgment of this Court, it was held by their Lordships as under:
"13. An analysis of the above reproduced provisions shows that no workman employed in any industry who has been in continuous service for not less than one year under an employer can be retrenched by that employer until the conditions enumerated in Clauses (a) and
(b) of Section 25-F of the Act are satisfied. In terms of Clause (a), the employer is required to give to the workman one month's notice in writing indicating the reasons for retrenchment or pay him wages in lieu of the notice. Clause (b) casts a duty upon the employer to pay to the workman at the time of retrenchment, compensation equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months. This Court has repeatedly held that Section 25F(a) and (b) of the Act is mandatory and non-compliance thereof renders the retrenchment of an employee nullity- State of Bombay v. Hospital Mazdoor Sabha AIR 1960 SC 610, Bombay Union of Journalists v. State of Bombay (1964) 6 SCR 22, State Bank of India v. N. Sundara Money (1976) 1 SCC 822, Santosh Gupta v. State Bank of Patiala (1980) 3 SCC 340, Mohan Lal v. Management of M/s Bharat Electronics Ltd. (1981) 3 SCC 225, L. Robert D'Souza v. Executive Engineer, Southern Railway (1982) 1 SCC 645, Surendra Kumar Verma v. Industrial Tribunal (1980) 4 SCC 443, Gammon India Ltd. v. Niranjan Das (1984) 1 SCC 509, Gurmail Singh v. State of Punjab 1991 (3) S.C.T. 608: (1991) 1 SCC 189 and Pramod Jha v. State of Bihar 2003 (2) S.C.T. 296: (2003) 4 SCC 619. This Court has used different expressions for describing the consequence of terminating a workman's service/employment/engagement by way of retrenchment without complying with the mandate of Section 25-F of the Act.
Sometimes it has been termed as ab inito void, sometimes as illegal per se, sometimes as nullity and sometimes as non est. Leaving aside the legal semantics, we have no hesitation to hold that termination of service of an employee by way of retrenchment without complying with the requirement of giving one month's notice or pay in lieu thereof and compensation in terms of Section 25-F (a) and (b) has the Sorot Gaurav 2014.05.13 11:03 I attest to the accuracy and integrity of this document CWP No.19429 of 2003 (O&M) -12- effect of rendering the action of the employer as nullity and the employee is entitled to continue in employment as if his service was not terminated."
It would be thus noticed that in this case cited by Mr. Malik, the issue of a contractual appointment for specific periods was not in question and as such the applicability of sub-clause (bb) of clause (oo) to Section 2 of the Act was not involved. However, the applicability of Section 25-F, even in a case where an appointment was without recourse to rules of recruitment, equal opportunity and de hors a sanctioned post, was upheld.
19. The next judgment cited by Mr. Malik is in the case of Harjinder Singh Vs. Punjab State Warehousing Corporation, JT 2010(1) SC 598, : (2010) 3 SCC 192.
In that case, the workman was employed with the Corporation as a Motor Mate on 05.03.1986 and thereafter on 03.10.1986 he was appointed as a Work Munshi in a pay-scale, for a period of 3 months. Yet again, with effect from 05.02.1987, he was appointed in the same capacity, though in a higher pay-scale, for a specified period of three months. Thereafter he was continued till 05.07.1988, when he was issued a notice seeking to terminate his service after a month. He filed a writ petition in which the operation of the order was stayed. The petition was eventually dismissed as withdrawn, with liberty to the workman to approach the Labour Court. Two months thereafter, the workman along with 22 others was given one months' pay and allowances in lieu of notice. Upon an industrial dispute having been raised, the workmen were reinstated by the Labour Court which also granted 50% backwages, even while holding that the Sorot Gaurav 2014.05.13 11:03 I attest to the accuracy and integrity of this document CWP No.19429 of 2003 (O&M) -13- retrenchment was after complying with Section 25-F of the Act but in violation of Section 25-G thereof, inasmuch as junior persons were allowed to continue in service.
The writ petition challenging the award took a plea of being covered by the exclusion contained in Section 2(oo)(bb), which plea was rejected by the learned Single Judge of this Court. The Labour Courts' finding on non-compliance of Section 25-G was also upheld. However, the reinstatement of the workman was disapproved on the ground that initial appointment was not in consonance with the statutory regulations and was in violation of Articles 14 and 16 of the Constitution.
Hence, the Labour Court award was set aside and instead of reinstatement with 50% backwages, compensation to the tune of Rs.87,582/- was ordered to be paid to the workman.
20. The Supreme Court set aside the judgment of the learned Single Judge, on the ground that the exercise of jurisdiction under Article 226, by issuing a writ of certiorari to quash the Award, was wrongly exercised jurisdiction.
It was so held by their Lordships, observing that the plea of the workman having been appointed in violation of Articles 14 and 16 of the Constitution and the regulations framed by the Corporation were wholly un-sustainable, inasmuch as there was no finding of fact on that issue by the Labour Court and as such, a finding of fact by a Court or Tribunal would not be interfered with under Article 226 of the Constitution.
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The exercise of jurisdiction under Articles 226/227 which results in adversely affecting a workman was deprecated by their Lordships, holding that High Courts are duty bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are acts of social welfare legislation and the same are required to be interpreted keeping in view the goals set out in the preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to sub-serve the common good and also ensure that the workers get their dues.
Their Lordships further held as under:
23. Of late, there has been a visible shift in the courts approach in dealing with the cases involving the interpretation of social welfare legislation. The attractive mantras of globalization and liberalization are fast becoming the raison d'etre of the judicial process and an impression has been created that the constitutional Courts are no longer sympathetic towards the plight of industrial and unorganized workers. In large number of cases like the present one, relief has been denied to the employees falling in the category of workmen, who are illegally retrenched from service by creating by-lanes and side-lanes in the jurisprudence developed by this Court in three decades. The stock plea raised by the public employer in such cases is that the initial employment/engagement of the workman-employee was contrary to some or the other statute or that reinstatement of the workman will put unbearable burden on the financial health of the establishment. The courts have readily accepted such plea unmindful of the accountability of the wrong doer and indirectly punished the tiny beneficiary of the wrong ignoring the fact that he may have continued in the employment for years together and that micro wages earned by him may be the only source of his livelihood. It need no emphasis that if a man is deprived of his livelihood, he is deprived of all his Sorot Gaurav 2014.05.13 11:03 I attest to the accuracy and integrity of this document CWP No.19429 of 2003 (O&M) -15- fundamental and constitutional rights and for him the goal of social and economic justice, equality of status and of opportunity, the freedoms enshrined in the Constitution remain illusory. Therefore, the approach of the Courts must be compatible with the constitutional philosophy of which the Directive Principles of State Policy constitute an integral part and justice due to the workman should not be denied by entertaining the specious and untenable grounds but forward by the employer-public or private. (emphasis supplied)
21. Before coming to the applicability of the judgments cited on the primary issue as to whether the respondent-workmans' case would fall within the ambit of Section 2(oo)(bb) or not, the judgments cited by Mr. Rahul Sharma, learned Additional Advocate General, Haryana, on the issue of reinstatement, would also need to be cited.
22. On the issue of reinstatement, Mr. Sharma argued that even if this Court holds that Section 2(oo)(bb) is inapplicable and as such, the Labour Court Award requires to be sustained, reinstatement can still not be directed, in view of the fact that their exists no permanent post to which the workman could be so reinstated, sanction not having been received for further continuation of the post. He also drew attention to the averments made in reply to the review application, and the letter issued by the Financial Commissioner and Principal Secretary to Government of Haryana, Department of Education, dated 24.03.1999, addressed to the Director Primary Education, Haryana. By this letter (Annexure P-1 with the reply to the review application), the Government of Haryana, while according sanction to the appointment of two labourers and one sweeper for 89 days, on contract basis, beyond 01.04.1999, had directed that as regards the post of Electrician, work could be taken from the Electrician of the Directorate of Secondary Sorot Gaurav Education, Haryana.
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Learned Addl. Advocate General referred to the judgment of a co-ordinate Bench of this Court, in Krishan Kumar Vs. Presiding Officer, Labour Court and another, (2012) 1 SLR 214, wherein it was held that even though the petitioner had worked for more than 240 days, he would not be entitled to reinstatement, though he could be issued a fresh engagement as a daily wager.
23. The next case, i.e. Jai Bhagwan Vs. State of Haryana, (2010) 4 SLR 232, also deals with a daily wager, holding therein that he would have no right to be absorbed in regular service simply on account of having completed 240 days of service, after which he was terminated but succeeded before the Labour Court which also granted him continuity of service.
24. The next judgment cited by Mr. Sharma was in the case of State of Haryana Vs. Hari Ram and another, (2010) 3 SLR 380, wherein the workman had initially been appointed for 89 days on contractual basis, which appointment was renewed from time to time, sometimes with notional and sometimes with substantial breaks in between. While finding that the termination was not on account of non- renewal of a contract but on account of Government instructions to stop appointing daily wagers in future, the learned Single Judge held that Section 2(oo) (bb) of the Act would not be applicable to that case.
However, even having held thus, the Court held that in view of the Government instructions that there would be no daily wage appointments after 09.01.1996, the workman could not be reinstated and instead would be paid compensation to the tune of Rs.25,000/-. The judgment of the Supreme Court in the case of District Telecom Sorot Gaurav 2014.05.13 11:03 I attest to the accuracy and integrity of this document CWP No.19429 of 2003 (O&M) -17- Manager and others V. Keshab Dev, (2008) 4 SCT 33 and another Division Bench judgment of this Court in State of Haryana V. Ishwar Singh and another, (2008) 3 SCT 788, were relied upon to hold as above.
25. On the issue of non-grant of back-wages, Mr. Sharma cited judgments of a learned Single Judge of this Court, as also of the Delhi High Court, to state that even where the termination of services was set aside, back-wages need not be awarded as it cannot be presumed that the workman had not worked during the period between such termination and the date of the award of the Labour Court.
26. Having now considered all the arguments put forward by learned counsel for the parties and after considering all the judgments cited by them, the basic question which this Court comes back to for adjudication, naturally, is as to whether the employment of the present respondent was in fact contractual or whether, in view of the fact that it continued for more than 240 days before his termination, it was mandatory to comply with the provisions of Section 25F and non- compliance thereof would necessarily result in reinstatement with continuation in service and back-wages.
27. In my opinion, there are two distinct parts of the employment of respondent No.1.
Firstly that part which, apparently, is contractual by virtue of the appointment letters issued to the 1st respondent, the first of which, dated 03.01.1997, has already been reproduced in paragraph 2 herein above. The other 2 letters are substantially the same. Therefore, the specific appointments being for a period of 89 days each, the Sorot Gaurav 2014.05.13 11:03 I attest to the accuracy and integrity of this document CWP No.19429 of 2003 (O&M) -18- employment would normally have to be held to be contractual in nature as per the plain reading thereof. Such appointments would also be governed by the terms and conditions specified in the appointment letter, by which it was stated that the appointees' services are liable to be terminated at any time without any notice. Thus, upto the date that the last period of appointment lasted, it would, at face value at least, seem to be contractual employment, covered by the exception contained in sub- clause (bb) of Section 2(oo).
These appointment letters are precisely three, as seen from the record submitted by learned State counsel, which in fact, is not entirely in consonance with what has been stated in the petition; to the effect that after the first contractual period of 89 days ended, the contract was renewed from time to time.
As a matter of fact, the second appointment letter was issued on 20.11.1997 w.e.f. 03.10.1997 and the last appointment letter was issued on 05.03.1998 w.e.f. 03.01.1998.
As such, the periods of each contract would be, in terms of the above, first from 03.01.1997 to 02.04.1997; then from 03.10.1997 to 31.12.1997 and then from 03.01.1998 to 02.04.1998.
28. Seen individually, during these three periods, the employment of respondent No.1 was obviously contractual. If taken in isolation, it would be covered by the decision of the Supreme Court in the case of Municipal Council, Samrala (supra), wherein, in effect, it was held that once the workman understood that his services were for a specific period and also could be terminated at any point of time as per Sorot Gaurav 2014.05.13 11:03 I attest to the accuracy and integrity of this document CWP No.19429 of 2003 (O&M) -19- the contract, then it would be an employment covered within the exception of Section 2(oo)(bb).
However, in the present case, can the petitioner department seek the benefit of that judgment, in the light of the fact that between such contracts and after the last period of contract ended, there were large periods of time when respondent No.1 continued in its employment, without any letter of contractual appointment in his favour?
29. In my opinion, the answer has to be in the negative, in view of the judgments of the Supreme Court in Harjinder Singhs' case (supra), and Haryana State Electronics Development Corporation Ltd. vs. Mamni (2006) 9 SCC 434.
In the former case, similar circumstances, the workman was ordered to be reinstated by the Labour Court which award in favour of the workman was eventually upheld by the Supreme Court, as already discussed hereinabove, by setting aside the judgment of this Court.
To repeat, though this Court had agreed with the findings of the Labour Court to the effect that a violation of the provisions of the Act of 1947 had taken place and that the termination was not covered by Section 2(oo)(bb) thereof; however, reinstatement was refused on the ground that the initial appointment was not in consonance with the statuary regulations and was in violation of Articles 14 and 16 of the Constitution. That judgment was reversed by the Supreme Court.
30. Let us look further on this issue of the benefit of Section 25-F, de hors the fact that a person is recruited as per rules or not. The source of recruitment would not really be relevant, as a matter of fact, Sorot Gaurav 2014.05.13 11:03 I attest to the accuracy and integrity of this document CWP No.19429 of 2003 (O&M) -20- for the purpose of seeing whether his termination is in terms of the protection granted under Section 25-F of the Act. It is nobodys' case that the first respondent was appointed on a regular basis on a permanent appointment in the Government. Undoubtedly, he was appointed for either fixed periods as per the appointment letters that were issued, or on a purely daily rate basis, for the long spells that he continued between the first and second appointment letters and thereafter from the expiry of the last period of appointment to the date of his termination. He was obviously working on a daily rate basis during these periods, as can be discerned from the record, submitted, at page 13 thereof.
As such, non-appointment as per the rules of the department would not come into question because the fact is that he did stand engaged as a daily rated workman for a period of 1 ½ years and, therefore, the safeguards and benefits stipulated in Section 25-F of the Act would be applicable to him, as to any other workman, the purpose of the said provision being to protect the interest of a poor man who may have no other source of income. Hence, the issue of appointment by way of regular recruitment does not arise in the present case and in any case, for the purpose of protection granted in the Industrial Disputes Act, the two issues are dichotomized, inasmuch as even by re-instatment on the ground of non-compliance of the provisions of Section 25-F, the re-instatement would only be by way of an appointment of casual nature and not of a permanent nature, unless subsequently the employer chooses to make such appointment permanent, by any regular method of appointment envisaged under the rules.
Sorot Gaurav2014.05.13 11:03 I attest to the accuracy and integrity of this document CWP No.19429 of 2003 (O&M) -21-
31. Of course, in the present case, one view can be that if the periods of contractual appointment, in the one year period before his termination, w.e.f. 03.10.1997 to 31.12.1997 and w.e.f. 03.01.1998 to 02.04.1998, are excluded, the workman would not complete 240 days in a year, calculated backwards from 12.06.1998 to 13.06.1997. However, seeing that he was actually in employment right from 03.01.1997 till 12.06.1998 with one notional break in between of two days, on the 1 st and 2nd January 1998, one long spell of employment of 6 months without any contract from 2.4.1997 to 2.10.1997 and then again continued for 71 days after the last contractual period, it has to be held that the short periods of three contractual appointments during this 1½ year spell, were obviously nothing but an unfair practice on the part of the petitioner-department, simply to try and get out of the rigours of the effect of violation of the provisions of Section 25-F of the Act.
In my view, the judgment of the Hon'ble Supreme Court in Haryana State Electronics Development Corpn. Ltd. Vs. Mamni, (2006) 9 SCC 434, would be fully applicable and more so in the circumstances of this case.
In that case, the workman had also been appointed initially for a period of 89 days on 13.02.1991. Thereafter, with notional gaps of between 1 to 3 days, she was given similar contractual appointment letters till her services were terminated on 07.08.1992, though the last period of contract had ended on 07.02.1992. As a matter of fact, she had even remained absent from 20.01.1992 to 07.02.1992 and again from 17.02.1992 to 27.02.1992.
Even in such a situation, their Lordships held as under: Sorot Gaurav 2014.05.13 11:03 I attest to the accuracy and integrity of this document CWP No.19429 of 2003 (O&M) -22-
"11. In this case the services of the respondent had been terminated on a regular basis and she had been reappointed after a gap of one or two days. Such a course of action was adopted by the appellant with a view to defeat the object of the Act. Section 2(oo)(bb) of the Industrial Disputes Act, 1947, therefore, is not attracted in the instant case."
In the present case, the above observations would be all the more applicable because there was a six month gap between first and second appointment letters and, as in the case before the Supreme Court, a continuation even after the last period of appointment had ended.
32. Keeping in view the above and especially the observations of the Supreme Court in Harjinder Singh, that "The courts have readily accepted such plea unmindful of the accountability of the wrong doer and indirectly punished the tiny beneficiary of the wrong ignoring the fact that he may have continued in the employment for years together and that micro wages earned by him may be the only source of his livelihood. It need no emphasis that if a man is deprived of his livelihood, he is deprived of all his fundamental and constitutional rights and for him the goal of social and economic justice, equality of status and of opportunity, the freedoms enshrined in the Constitution remain illusory. Therefore, the approach of the Courts must be compatible with the constitutional philosophy of which the Directive Principles of State Policy constitute an integral part and justice due to the workman should not be denied by entertaining the specious and untenable grounds but forward by the employer-public or private", this Court holds the termination of services of respondent No.1, to be in violation of Section 25-F of the Act of 1947 and, as such, Sorot Gaurav 2014.05.13 11:03 I attest to the accuracy and integrity of this document CWP No.19429 of 2003 (O&M) -23- the Award of the Labour Court in favour of respondent No.1 needs no interference with.
33. As regards Mr. Rahul Sharmas' contentions that with no post existing, re-instatment could not have been ordered, the same is also without any factual basis, inasmuch as the letter which was relied upon by learned State counsel before this Court, as also by the petitioner-department before the Labour Court, is dated 24.03.1999, i.e. more than 9 months after the termination of the first respondent from employment. By this letter, as already observed herein above, the post of Electrician was not sanctioned w.e.f. 01.04.1999, whereas his services were terminated on 12.06.1998.
Thus, at the time of termination of service the post was very much in existence and thereafter, by virtue of the fact that the Labour Court award was not stayed, the first respondent continued working up till 28.05.2010 upon having been reinstated on 21.07.2005 and it is only upon initial dismissal of this petition, that his services were again terminated on 28.05.2010.
Thus, what was to be seen is the situation as it is existed at the time of termination of the workman on 12.06.1998.
34. To quote again from the judgment in Harjinder Singhs's case (supra), the Supreme Court held as under:
"17. Before concluding, we consider it necessary to observe that while exercising jurisdiction under Articles 226 and/or 227 of the Constitution in matters like the present one, the High Courts are duty bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the preamble of the Constitution and the provisions contained in Part Sorot Gaurav 2014.05.13 11:03 I attest to the accuracy and integrity of this document CWP No.19429 of 2003 (O&M) -24- IV thereof in general and Articles 38, 39(a) to (e), 43 and 43(a) in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to sub-serve the common good and also ensure that the workers get their dues more than 41 years ago, Gajendragadka, J. opined that "the concept of social and economic justice is a living concept of revolutionary import, it gives sustenance to the rule of law and meaning and significance to the ideal of welfare State"-State of Mysore V. Workers of Gold Mines (AIR 1958 SC 923).
18. xxx xxxx xxx
19. The preamble and various Articles contained in Part IV of the Constitution promote social justice so that life of every individual becomes meaningful and he is able to live with human dignity. The concept of social justice engrafted in the Constitution consists of diverse principles essentially for the orderly growth and development of personality of every citizen. Social justice is thus an integral part of justice in the generic sense. Justice is the genus, of which social justice is one of its species. Social justice is a dynamic devise to mitigate the sufferings of the poor, weak, dalits, tribals and deprived sections of the society and to elevate them to the level of equality to live a life with dignity of persons. In other words, the aim of social justice is to attain substantial degree of social, economic and political equality, which is the legitimate expectation of every section of the society. In a developing society like ours which is full of unbridgeable and ever widening gaps of inequality in status and of opportunity, law is a catalyst to reach the ladder of justice. The philosophy of welfare State and social justice is amoly reflected in large number of judgments of this Court, various High Courts. National and State Industrial Tribunals involving interpretation of the provisions of the Industrial Disputes Act. Indian Factories Act, Payment of Wages Act, Minimum Wages Act, Payment of Bonus Act, Workmen's Compensation Act, the Employees Insurance Act, the Employees Provident Fund and Miscellaneous Provisions Act and the Shops and Commercial Establishments Act enacted by different State. Therefore, the objective of the Act being the protection of small workmen, the outcome for any violation of the provisions thereof, would naturally be reinstatement from the date of illegal termination, Sorot Gaurav 2014.05.13 11:03 I attest to the accuracy and integrity of this document CWP No.19429 of 2003 (O&M) -25- unless such appointment actually comes within the purview of Section 2(oo)(bb) or is for specific projects, which in any case, being of periodical nature, would come in the nature of contractual work, (unless something to the contrary can be shown in the case of project works, such as continuous employment from project to project etc.). That obviously is not the present case.
In view of the above, I find no reason on this count either, to interfere with the impugned award of the Labour Court.
Having said that, obviously even the management cannot be denied the right to dispense with the services of a workman if they are absolutely no longer required. However, such cessation of employment is to be made by following the procedure laid down in the Industrial Disputes Act, 1947.
One argument, which could be raised would be that since respondent No.1 was reinstated in 2005 upon the impugned award not having been stayed by this Court, and he continued in the employment of the petitioner till 2010, the violation of Section 25-F would stand adequately compensated. Though this may practically be true, however, since the matter remained pending before this Court till now, the protection provided in the Act cannot be allowed to work against the workman during pendency of the writ petition and since, on principal, the termination of respondent No.1 has been held to be bad even now by this Court, the argument cannot sustain. However, as already observed hereinabove, if the services of a workman are not required they can be dispensed with by following the procedure laid down in the Act.Sorot Gaurav 2014.05.13 11:03 I attest to the accuracy and integrity of this document CWP No.19429 of 2003 (O&M) -26-
35. Before closing the judgment or dealing with the application under Section 17B of the Act, however, the issue initially raised before the Division Bench at the time of motion hearing, on 15.12.2003, would need to be referred to, even though it was not an issue which was raised in the pleadings before the Labour Court or even in the pleadings before this Court and seems to have been raised only by the learned counsel appearing on behalf of the petitioner-Department, before the Division Bench. It had been averred, as noted in the initial part of this judgment, that a legal question had been raised about the maintainability of the reference of the dispute to the Labour Court. As per the petitioner, the reference was to be made by the State Government as per Section 2(a)(ii) of the Act, whereas it was actually made by the Central Government.
Mr. Rahul Sharma, learned Additional Advocate General, had argued that despite the fact that the first respondent was employed in the Union Territory of Chandigarh by the Department of Primary Education of the State of Haryana, being a Haryana Government employee, it would be the State Government which would be the appropriate Government in terms of Section 2(a)(ii) of the Act. The provision itself is reproduced hereinunder:-
"2. Definitions.- In this Act, unless there is anything repugnant in the subject or context,-
(a) "appropriate Government" means-
(i) in relation to any industrial dispute concerning any industry carried on by or under the authority of the Central Government, or by a railway company [or concerning any such controlled industry as may be specified in this behalf by the Central Government] or in relation to an industrial dispute concerning [a Dock Labour Board established under section 5A of the Dock Workers (Regulation of Sorot Gaurav 2014.05.13 11:03 I attest to the accuracy and integrity of this document CWP No.19429 of 2003 (O&M) -27- Employment) Act, 1948 (9 of 1948), or the Industrial Finance Corporation of India established under section 3 of the Industrial Finance Corporation Act, 1956 (1 of 1956), or the Employees' State Insurance Corporation established under section 3 of the Employees' State Insurance Act, 1948 (34 of 1948), or the Board of Trustees constituted under section 3A of the Coal Mines Provident Fund and Miscellaneous Provisions Act, 1948( 46 of 1948), or the Central Board of Trustees and the State Boards of Trustees constituted under section 5A and section 5B, respectively, of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 (19 of 1952), or the "Indian Airlines" and "Air India" Corporations established under section 3 of the Air Corporations Act, 1953 (27 of 1953), or the Life Insurance Corporation of India established under section 3 of the Life Insurance Corporation Act, 1956 (31 of 1956), or the Oil and Natural Gas Commission established under section 3 of the Oil and Natural Gas Commission Act, 1959 (43 of 1959), or the Deposit Insurance and Credit Guarantee Corporation established under section 3 of the Deposit Insurance and Credit Guarantee Corporation Act, 1961 (47 of 1961), or the Central Warehousing Corporation established under section 3 of the Warehousing Corporations Act, 1962 (58 of 1962), or the Unit Trust of India established under section 3 of the Unit Trust of India Act, 1963 (52 of 1963), or the Food Corporation of India established under section 3, or a Board of Management established for two or more contiguous States under section 16, of the Food Corporations Act, 1964 (37 of 1964), or the International Airports Authority of India constituted under section 3 of the International Airports Authority of India Act, 1971 (48 of 1971), or a Regional Rural Bank established under section 3 of the Regional Rural Banks Act, 1976 (21 of 1976), or the Export Credit and Guarantee Corporation Limited or the Industrial Reconstruction Bank of India [the National Housing Bank established under section 3 of the National Housing Bank Act, 1987 (53 of 1987) [a banking or an insurance company, a mine, an oil-field], a Cantonment Board,] or a major port, any company in which not less than fifty-one per cent. of the paid-up share capital is held by the Central Government, or any corporation, not being a corporation referred to in this clause, established by or under any law by Parliament, or the Central public sector undertaking, subsidiary companies set up by the principal undertaking and autonomous bodies owned or controlled by the Central Government, the Central Government, and] Sorot Gaurav 2014.05.13 11:03 I attest to the accuracy and integrity of this document CWP No.19429 of 2003 (O&M) -28-
(ii) in relation to any other industrial dispute, including the State public sector undertaking, subsidiary companies set up by the principal undertaking and autonomous bodies owned or controlled by the State Government, the State Government:
provided that in case of a dispute between a contractor and the contract labour employed through the contractor in any industrial establishment where such dispute first arose, the appropriate Government shall be the Central Government or the State Government, as the case may be, which has control over such industrial establishment."
Thus, a preliminary reading of clause (ii) would indicate that in relation to an industrial dispute pertaining to companies, bodies or undertaking falling under the control of the State Government, i.e. the Government of Haryana in this case, the reference would have to be made by the said Government. However, as per the Industrial Disputes (Central) Rules, 1957, it is stipulated in Rule 2(f) thereof, that in relation to an Industrial dispute in a Union Territory, the appropriate Government shall be construed as a reference to the Administrator of the Territory.
36. This issue had come up earlier before a Division Bench of this Court, in the case of Pritam Singh vs. Presiding Officer, Labour Court, U.T. Chandigarh and another, 2004(7) SLR 625.
In that case, while relying upon an earlier Division Bench judgment in the case of Punjab Financial Corporation vs. Union Territory and Ors., it was held that:
"17. In view of what has been stated above, we are of the view that it is the occurrence of an "industrial dispute" or a part thereof within the territory of a State which shall empower the government of that state being the 'appropriate Government' to make reference to an industrial dispute does not necessarily depend only upon the situs of the employment where the worker was employed or where the order Sorot Gaurav 2014.05.13 11:03 I attest to the accuracy and integrity of this document CWP No.19429 of 2003 (O&M) -29- of dismissal of his service, suspension or retrenchment is received. We are of the view that the question to determine as to who is the "appropriate Government" always depends upon the facts and circumstances of each case and in the light of the undisputed facts in the present case, the Union Territory of Chandigarh is certainly the "appropriate Government" who could refer the industrial dispute for adjudication. That being so, the learned Single Judge as well as the Labour Court at Chandigarh fell in error in holding that the Punjab Govt. was the only appropriate government who could refer the industrial dispute for adjudication in the present case. Accordingly, we allow this appeal; set aside the award dated March 14, 1989 (Annexure P-6) passed by the Labour Court, Chandigarh as also the judgment dated 17.8.1993 passed by the learned Single Judge and hold that reference to the "industrial dispute" in the present case made by the Union Territory of Chandigarh is a valid reference made by the "appropriate government" in terms of Section 2(a)(ii) of the Act. The Labour Court at Chandigarh shall accordingly proceed to adjudicate the dispute on merits. It cannot be lost site that the Appellant was retrenched more than 20 years back and is languishing before one or the other forum at the threshold only of the industrial dispute raised by him. We, therefore, hope and trust that the Labour Court at Chandigarh will make all earnest efforts to decide this case on merits at the earliest but not later than six months. No order as to costs.
Appeal allowed."
Though, in my view, with all due respect, the appropriate Government in a case where the workman is an employee of the Department of a single State Government, the appropriate Government would necessarily have to be the State Government concerned that employs him/her, in terms of Section 2(a) (ii) of the Act, regardless of the place of occurrence of the dispute, especially in terms of Rule 2(g)(i) of the Rules of 1957, which stipulates that :-
(i) in relation to an industry, not being an industry referred to in sub-clause (ii), carried on by or under the authority of a Department of the Central or a State Government, the officer-in-charge of the industrial establishment shall be 'employer' in respect of that establishment;"Sorot Gaurav 2014.05.13 11:03 I attest to the accuracy and integrity of this document CWP No.19429 of 2003 (O&M) -30-
However, in view of the fact that firstly, in the present case, the issue itself was never raised as a preliminary objection at the threshold itself before the Labour Court, nor has it even been pleaded in the written pleadings before this Court, and was raised orally by way of argument, only at the time of initial hearing of this case in the year 2003, and the writ petition was thus admitted to regular hearing without any stay on the Labour Court Award, on a purely legal issue; and secondly, I being obviously bound by the Division Bench Judgment, refrain from opining any further on this issue, as it would, on a purely technical issue, deprive a workman of the legal benefits which otherwise accrue to him in view of what has been held herein above.
37. Hence, in conclusion, with regard to the main petition itself, the Labour Court Award having been upheld, it is directed that since the 1st respondent was initially reinstated upon stay having been declined by the Division Bench on 15.12.2003 and the States' SLP against that order also having been dismissed, obviously he would now be reinstated w.e.f. the date of his second removal, i.e. 28.05.2010 (after this writ petition was initially allowed on 19.12.2007), with all consequential benefits flowing therefrom, in terms of the Labour Court award. With regard to backwages payable, it would now be in relation to the emoluments due under Section 17-B of the Act.
38. As regards the application filed seeking benefits of Section 17B of the Act, which should correctly have been decided by this Court (this Bench), at the initial stage itself; however, since the Labour Court award is being upheld, by which respondent No.1 had been reinstated with continuity of services and 50% back-wages, and which order, in Sorot Gaurav 2014.05.13 11:03 I attest to the accuracy and integrity of this document CWP No.19429 of 2003 (O&M) -31- fact, already stood complied with up to 28.05.2010, the question now only would be what remuneration is to be paid to the said respondent upon his "second reinstatement".
Since he was subsequently removed from service again only in 2010, on the initial dismissal of the writ petition (before that order was recalled on 25.11.2011), he would be entitled to the wages that he was drawing as on 28.05.2010, upto the date of decision of this petition, since it could not be shown by the petitioner-department that he was working somewhere else.
A perusal of the reply filed to the application under Section 17B of the Act, shows that the only reasoning given therein, other than on the merits of the Labour Court Award itself, is that the main petition itself be decided at the earliest. In the reply, the burden of proof to show that the first respondent is not working anywhere else is being shifted by the petitioner-department on to the workman.
As to how a man can show that he is not working anywhere is not understood, unless witnesses etc. are called for that purpose. Obviously, therefore, in case he was working somewhere else, the burden of proof would be upon the petitioner-department. No doubt, when a person is from a strata of society where he needs to work to keep body and soul together, and he is actually a working person and not a wastrel etc., it has to be presumed that he would be so working, to earn his livelihood. Also though, there is no doubt that had this application been decided at the initial stage itself, in the circumstances, he would have been entitled to remuneration last drawn by him on 28.05.2010, during pendency of the petition. However, at this stage, I think the ends Sorot Gaurav 2014.05.13 11:03 I attest to the accuracy and integrity of this document CWP No.19429 of 2003 (O&M) -32- of justice would be met if he is held entitled to wages to the extent of 75% of what he was drawing on 28.05.2010, with arrears accruing to him till the date of decision of the petition, after which of course he is to be reinstated.
If, upon such reinstatement, which is a necessary consequence to the upholding of the impugned award, the petitioner- department still finds itself in no need of the services of the first respondent, it would be at liberty to dispense with them, after complying with all applicable provisions of the Industrial Disputes Act, 1947.
39. Consequently, in terms of what has been held herein above, this petition is dismissed with no order as to costs but with the liberty available to the petitioner, as set out at the end of paragraph 38 herein above. The application under Section 17-B is partly allowed, as per directions given in the same paragraph.
May 09, 2014 (Amol Rattan Singh)
vcgarg/gaurav sorot Judge
Sorot Gaurav
2014.05.13 11:03
I attest to the accuracy and
integrity of this document