Allahabad High Court
Divisional Manager, Life Insurance ... vs Presiding Officer, Central Government ... on 23 February, 2004
Equivalent citations: [2004(101)FLR469], (2004)2UPLBEC1273
Author: Rakesh Tiwari
Bench: Rakesh Tiwari
JUDGMENT Rakesh Tiwari, J.
1. Heard Counsel for the parties and perused the record.
2. The petitioner appointed respondent No. 2 for three different periods of 45,45 and 40 days vide orders dated 14.11.83, 31 12.83 and 15.2.84 respectively. The engagement was temporary and for specific period on fixed payment of Rs. 170 + DA. The appointment letters issued to respondent No. 2 are annexed as Annexures-1, 2 and 3 to the writ petition. The total working on the part of respondent No. 2 with the Corporation during the aforesaid three engagement periods is 130 days.
3. The controversy in dispute pertains to the termination of the service of respondent No. 2 w.e.f. 12.1.85. It is alleged that brother of respondent No. 2 had entered into a contract with the Corporation for certain job work. It is claimed by the petitioner that respondent No. 2 was engaged by his own brother for doing job work and the Corporation was not concerned as to how the brother of respondent No. 2 performed his part of contract i.e. whether he himself or through any other person including his own brother.
4. It appears from the record that respondent No. 2 raised an industrial dispute regarding termination of his services. Following reference was made by the Central Government vide order dated 15.2.90.
"Whether the Divisional Manager, LIC of India, Divisional office, Agra was justified in terminating the services of Shri Awadesh Chand Agarwal w.e.f. 12.1.1985 in violation of Sections 25F, 25G & 25H of the Industrial Disputes Act, 1947? If not, to what relief the workman concerned is entitled ?"
5. In the mean time, respondent No. 2 also filed an application under Section 33C(2) of the Act claiming a sum of Rs. 9559.88/- as the amount in lieu of the work allegedly done by him. The application was allowed by the Presiding Officer, Central Government, Industrial Tribunal-cum-Labour Court, Pandu Nagar, Kanpur vide order dated 30.11.87.
6. Aggrieved the Corporation filed Writ Petition No. 19749 of 1988 in which an interim order was granted staying the operation of the order dated 30.11.87. Thereafter, Corporation moved an application dated 6.12.91 before respondent No. 1 for stay of the proceedings which was stayed vide order dated 30.1.92. It further appears from the record that another application dated 13.4.98 was moved by respondent No. 2 but by order dated 20.5.98 the objections of the petitioner were turned down and proceedings commenced. A joint inspection was also made by the authorities regarding the working of respondent No. 2 in the Corporation up to 12.1.85. The joint Inspection Reports dated 11.9.86 18.11.86 and 19.10.87 were filed before the Labour Court which are appended as Annexures-19, 20 and 21 to the writ petition.
7. By the impugned award dated 28.9.98 respondent No. 1 held that the petitioner has worked for more than 240 days.
8. The award of the Labour Court is assailed by the Counsel for the petitioner on the ground that the case of respondent No. 2 is not covered under the amended definition of retrenchment as given in Section 2(oo)(bb) of the Industrial Disputes Act, 1947 and that the appointment of respondent No. 2 as Assistant is governed by the statutory Rules and Regulations framed by the Corporation as such, the provisions of Industrial Disputes Act do not apply in such a case. It is submitted that the Tribunal has wrongly held that the workman had worked for more than 240 days which is perverse and against the evidence on record. In so far as joint inspection reports are concerned, it is submitted that they are merely concerned with the discharge of contract between the Corporation and the brother of respondent No. 2 and has nothing to do with the liability of the Corporation to pay any amount to respondent No. 2. It is further urged that the Industrial Tribunal-cum-Labour Court has illegally shifted the onus on the petitioner to demolish the case of respondent No. 2 which is contrary to law and that after the proceedings had been closed/stayed by respondent No. 1 vide order dated 30.1.92 they could not be resumed after considerable gap of several years specially when the stay order granted by this Court was still operative. Lastly it has been submitted that in terms of the stay order, the period between 27th March, 1984 and 11th January, 1985 could not be counted for computing the period of 240 days as has been illegally done by respondent No. 1. The additional papers filed by respondent No. 2 were neither proved before respondent No. 1 nor were exhibited, hence they were not relied upon by the Labour Court and they could not even be considered by the Labour Court in the aforesaid circumstances.
9. From perusal Annexures-1 to 3 to the writ petition it is evident that the workman had worked for more than 130 days. The case of the workman is that he had worked even after 27.3.84 on the oral assurance of the Branch Manager. It is admitted fact that no salary was paid to him during the aforesaid period of alleged working after 27.3.84. This fact has specifically been denied by the petitioner and it has been stated that the workman had not worked after 27.3.84 and has not completed more than 240 days in a year.
10. The moot point whether the workman had worked for more than 240 days or more in a year or not was considered by the Labour Court. The workman has admitted in his cross-examination that after 26.3.84 he was not given any appointment letter. The Labour Court taking judicial note of the plea taken by the employer that the workman had worked from 27.3.84 to 11.1.85 on behalf of his elder brother and relying upon the joint inspection reports held that the concerned workman had worked for more than 240 days in a year, hence before retrenchment he was entitled for retrenchment compensation and notice pay as required by Section 25F of Industrial Disputes Act. The Industrial Tribunal-cum-Labour Court further held that as the provisions of retrenchment were not complied with, the retrenchment of the workman from 12.1.85 was bad in law and was held to be entitled for reinstatement. As regards back wages, the Labour Court held that the concerned workman is entitled for the same from 12.1.85 as the claim from 27.3.84 to 11.1.85 has already been computed in the LCA Case No. 83 of 1986.
11. Sri K.P. Agarwal, Senior Counsel appearing on behalf of the workman submits that the Labour Court has given a finding of fact that the workman has continuously worked up to 12.1.85 i.e. more than 240 days in a year. The finding of the Labour Court with regard to working of the workman for more than 240 days is as under :
"Madan Mohan Saxena MW-1 has stated that concerned workman had not worked after 27.3.1984. Management has filed Exhibit M-1 to M-10 papers relating to appointment whereas workman has filed copy of order dated 30.11.1987 passed in LCA No 83 of 1986 and also the Joint Inspection Note dated 11.9.1986 and 19.10.1987 which was filed in the above mentioned case. From this report it appears that the concerned workman had filed LCA No. 83 of 1986 for wages for the period 27.3.1983 up to 11.1.1985 which is the subject matter of the present dispute as well. In that case Joint Inspection Note was filed which showed that the workman had worked some work even beyond 26.3.1984. To explain this working the opposite party Insurance Company has set up the plea that Pradeep Kumar Agarwal is the elder brother of the concerned workman. He was given contract for Rupees twelve hundred to clear the work. The concerned workman had done work on behalf of his brother in pursuance of the contract. My learned predecessor had not accepted this explanation. Consequently, the claim of the concerned workman in LCA No. 83 of 1986 was accepted after holding that he had worked from 27.3.1984 up to 11.1.85......................
Still judicial notice of the fact can be given that the opposite party had set up a plea that the concerned workman had actually worked from 27.3.1984 up to 11.1.1985 but it was done on behalf of the elder brother Pradeep Kumar Agrawal. This case had not been set up in the present case and even no evidence had been adduced. In the absence of any such plea and proof on behalf of the management I am inclined to attach weight to joint inspection note. Hence, relying upon this piece of evidence I accept the evidence of concerned workman and hold that he had further worked from 27.3.1984 to 11.1.1985................................"
12. Sri Agarwal further submits that this finding of fact will not be interfered by this Court in exercise of powers under Article 226 of the Constitution of India. He further submits that the case of the Corporation that brother of the workman had not entered into a contract with the Corporation and in pursuance of which the workman had been engaged by his own brother was disbelieved by the Labour Court in earlier LCA No. 83 of 1986 wherein it has been found as a matter of fact that the workman had worked up to 11.1.1985. It is further contended that even if the reference order was belated it can not be thrown on that ground for no period of limitation is provided in Sections 10 or 12 of the Industrial Disputes Act, 1947 for making a reference to the Labour Court. Reliance in this regard has been placed by Sri K.P. Agarwal on the cases of WIMCO, AIR 1970 SC 1207 and AVON Services Private Limited, 1979 Labour and Industrial Cases 1. He further submits that Writ Petition No. 19749 of 1988 has no bearing on the controversy in the present writ petition. The workman had filed an application under Section 33C(2) of the Central Act and had claimed computation of some money. The application was allowed and a sum of Rs. 9,559.88/- was computed as payable to the workman whereas the present reference arises out of the wrongful termination of the services of the workman with effect from 11.1.1985. Lastly he submits that Section 2(oo)(bb) of the Act is not attracted in the facts and circumstances of the case as the present case is not one of the refusal of the renewal of the contract of service, it is a clear finding that the workman worked from 27.3.84 to 11.1.85 and whatever the break in service had to be ignored. It has been held by the Supreme Court in the case of State Bank of India v. N. Sundara Money, AIR 1976 SC 1111, and in the case of S.M. Nilajkar and Ors. v. Telecom, District Manager, Karnataka, 2003 (97) FLR 608, that for the purposes of computation of 240 days of continuous service artificial breaks even to the extent of 3 months had to be ignored.
13. The only question before this Court is as to whether the workman had completed 240 days of actual service or not and the award of the Labor Court is reverse and against the evidence on record.
14. The award dated 28.9.98 is, in fact based on an earlier order passed by the Labour Court in proceedings under Section 33C(2) of the Industrial Disputes Act. It is not in dispute that the Labour Court passed an order dated 30.11.87 first under Section 33C(2) of the Act and thereafter reference was made for the first time on 15.2.90 in which the impugned award has been made on 28.9.98. It is also evident from Annexures-1 to 3 that respondent No. 2 was engaged for specified period after much gap and the appointment was not extended. This implies that every time respondent No. 2 was engaged during three separate periods. The engagement was done fresh after the previous engagement has come to an end. It is also not in dispute that the appointment in the Life Insurance Corporation of India is governed by the Statutory Rules and there is only mere oral assurance by the Branch Manager that the workman had worked more period i.e. 27.3.84 to 11.1.85 which has been denied by the emplbyer. There is no documentary evidence of the workman having worked in the aforesaid period. He would not get any legal right if he had worked during the aforesaid period in terms of the contract. Such working will not create any relationship of master and servant between the petitioner and the respondent workman. Continuous working of 240 days of the respondent workman has to be taken during the period of one year and working does not come to 240 days even three separate periods of his engagement are taken i.e. 14.11.83, 31.12.83 and 15.2.84 and the alleged working during the period 27.3.84 to 11.1.85. The finding of the Labour Court is not based on any evidence on record. The Labour Court has committed illegality in relying upon the order passed in LCA No. 83 of 1986 for coming to the conclusion that there was relationship of master and servant. There was no evidence before the Labour Court in the Adjudication case referred to it under Section 10 of the Act.
15. In Municipal Corporation of Delhi v. Ganesh Razak and Anr., (1995) 1 SCC 235, it has been held that the Lrbout Court's jurisdiction under Section 33C(2) of the Act is in the nature of adjudication proceedings and it can not adjudicate dispute of entitlement or basis of claim of workmen. It can only interpret the award or settlement on which the claim is based. Admittedly, no reference has been made by that time, as such the Labour Court ought to have relied upon the evidence and documents adduced before it and not upon the order passed in LCA No. 83 of 1986 which has been given much prior to the reference as it could not have been read in evidence in the case before it. The Apex Court in the case of Municipal Corporation of Delhi (supra) has held that without a prior adjudication or recognition of the disputed claim of the workmen to be paid at the same rate as the regular employees, proceedings for computation of the arrears of wages claimed by them on that basis was not maintainable under Section 33C(2) of the Act. This means that the evidence given by the workman in adjudication proceedings can be relied upon by the Labour Court for passing order under Section 33C of the Act and not vice-versa.
16. From the facts narrated above it is evident that the workman had not continuously worked for more than 240 days. The award is, therefore, illegal and void. The decision given in Tara and Ors. v. Director, Social Welfare and Ors., (1998) 8 SCC 671, and in (2001) 1 SCC-73, State Bank of India v. Ram Chandra Dubey and Ors., reiterates the same position of law as in the case of Municipal Corporation of Delhi (supra). The appointment of respondent No. 2 was for a specific period and was never extended thereafter. As such, the proceedings under Section 33C(2) of the Act would be attracted for computation of period of 240 days of csntitnuous service. The findings recorded by the Labour Court are perverse, the Labour Court has committed illegality in shifting the onus on the employer-petitioner for presenting the case that the workman has completed 240 days of continuous service. Even if the case of the workman is accepted that he had worked for the period 27. 3. 84 to 11.1.85 it was under a contract which is on behalf of his own brother and was entirely different, the matter was contested on the application moved by the brother of respondent No. 2.
17. For the reasons sated above, the writ petition is allowed. The impugned order is quashed. No order as to cost.